Gender Affirming Surgeries and Minors – The Law in India

Introduction

LGBTQIA+ — A sub-group that has always been a part of our society. Yet, for the longest time, law and regulation in India pertaining to most aspects of their existence was either conspicuously absent or downright disparaging. The tide turned on 15-4-2014 when the Supreme Court of India passed its landmark judgment in National Legal Services Authority v. Union of India.¹ The “third gender” was explicitly recognised in this judgment. The right to identify with one’s “self-identified” gender was also recognised. Then, in Navtej Singh Johar v. Union of India², the draconian colonial legacy of Section 377³ was abolished, by reading down the said provision to allow consensual sexual relationships for adults of all sexual orientations. Then, the Transgender Persons (Protection of Rights) Act, 2019⁴ was brought into force. The latest development has been the controversial verdict on queer marriages.

One of the ways in which an individual may express their self-identified gender identity is by undergoing a “gender affirming surgery”. Adults freely exercise this right under the current legal regime in India. The law is, however, ambiguous in a situation where a minor, especially one currently in a state of adolescence, wishes to exercise this right. The authors seek to examine this peculiar issue in the present article. The authors also tread into the details of such surgeries, the contours of the Transgender Persons (Protection of Rights) Act, 2019 and international practices. Their intent is to present a holistic view on this rather complex and sensitive subject.

Gender affirming surgeries – Meaning and types

A gender affirming surgery also known as a sex reassignment surgery (SRS), is a medical procedure designed to assist individuals who identify with a gender that differs from the one assigned to them at birth. These surgeries aim to modify the physical features of the body in accordance with the individual’s self-identified gender, encompassing procedures such as genital reconstruction surgery.

Male-to-female (MTF): It entails the conversion of male anatomy into female anatomy, which includes the removal of the penis, reshaping of genital tissue, and the creation of a vagina. After the surgery, female hormones are introduced to further sculpt the body’s characteristics.

Female-to-male (FTM): Conversely, female-to-male surgery often faces greater challenges in achieving optimal results because of the complexity of fashioning a functional penis from the comparatively smaller clitoral tissue found in female genitalia. In addition to the genital modifications, surgical adjustments to the breasts are also necessary.

Legal landscape on transgenders in India

In 2019, the Indian Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019, with the primary aim of safeguarding the rights and promoting the welfare of individuals who are either born as transgender or identify as such. Section 2(k)⁵ of the Act defines a “transgender person” as an individual whose gender identity does not align with the gender assigned to them at birth and includes trans men and trans women, people with intersex variations and individuals with sociocultural identities such as kinner, hijra, aravani, and jogta.

To attain legal recognition as a transgender person, an individual who identifies as such can initiate the process by applying to the District Magistrate (DM) under Section 5⁶ of the Act for the issuance of a certificate. Upon receipt of such an application, the DM is mandated to issue the applicant a certificate that officially acknowledges their transgender identity. Section 7⁷ of the Act specifically addresses those who have undergone gender affirming surgeries. It allows them to seek a revised certificate reflecting their reaffirmed gender identity by making an application to the DM. The DM, upon satisfying the application’s accuracy, would issue a certificate that reflects the change in the individual’s gender identity.

Despite being a step in the right direction, the Act has faced criticism as it directly contradicts the 2014 NALSA⁸ judgment, which supports self-identification for transgender individuals. However, the Act, instead of allowing transgender individuals to self-identify, mandates that they must obtain certification from the DM.

The law on gender affirming surgeries for minors in India

The legal position on gender affirming surgeries of minors in India is currently evolving. There is no specific statutory provision which discusses it. The High Courts of different States have, however, expressed their views on certain aspects of this issue.

In Arunkumar v. Inspector General of Registration⁹, the High Court of Madras noted that the mandate of the Supreme Court was not being followed. It thus directed the Government of Tamil Nadu to issue an order in compliance with the Supreme Court’s declaration. Consequently, the State Government issued GO(Ms) No. 355, dated 13-08-2019¹⁰. By way of this order, gender affirming surgeries on children and infants were banned for all purposes, except life-threatening situations. Interestingly, the order even cast an obligation of the Director of Medical Education in the State to ensure that the exemption for “life-threatening situations” was not misused.

The High Court of Delhi was faced with the question of the legality of gender affirming surgeries on children in Srishti Madurai Educational Research Foundation v. State (NCT of Delhi)¹¹. The matter arose from a petition filed by SMERF against the Government of Delhi. The petition had been filed seeking a ban on sex selective surgeries on intersex children, which were not medically necessary. The petition also sought the implementation of guidelines specifying the conditions under which such surgeries could be performed on intersex children. Vide its order dated 27-7-2022, the Court recorded the recommendations made by the Delhi Commission for Protection of Child Rights (DCPCR), which were brought to its notice by the petitioner. The DCPCR had recommended that the Government of Delhi should ban such surgeries and only allow them in cases where a child’s life was at risk. The Court disposed of the petition by granting time to the Government of Delhi to reach a decision on the DCPCR’s recommendations.

More recently, the High Court of Kerala also dealt with this issue, in X v. Director of Health Services¹². The petitioners had approached the Court seeking permission to have a genital reconstructive surgery performed on their intersex child, to raise the child as a female. The Court took note of the fact that the minor child was in no position to give consent. Therefore, the Court did not allow the petitioners’ prayers and rather thought it fit to constitute a State-Level Multidisciplinary Committee consisting of both medical and psychological experts to decide on the issue. It was directed that the Committee would decide whether a surgery was required within 2 months, if there were any threat to the life of the child. Further, the Government was directed to issue an order regulating sex selective surgeries on infants and children within three months.

The abovementioned judgments and State orders make it clear that gender affirming surgeries cannot be performed on infants, since they are in no state to give consent. However, they are all silent on whether minors who are not infants can voluntarily opt for such surgeries.

International practices

Last year, the World Professional Association for Transgender Health recommended that the age requirements for gender affirming surgeries be lifted. In most countries, the age eligibility for such surgeries is still 18 years. Some countries have lowered these limits. It is 16 in Scotland and 17 in England. In the United States, at least 15 States do not allow persons under the age of 18 years to undergo gender affirming surgeries.

Authors’ analysis and views

The question that now arises is whether minors would be considered to give valid consent to gender affirming surgeries under the law in India. The age for consent may differ across spectrums. Legal liability may accrue to minors of a certain age, while others may escape the same. For instance, children above the age of 7 years may be charged with crimes in many cases, as they are considered mature enough to have the “mens rea” for an offence. If that is the case, one may question why minors have attained the age of puberty may not be able to give consent to a gender affirming surgery. Alternatively, it may be argued that not all minors attain maturity at the same age. Studies have shown that notions of gender may change with time and some adolescents may even have temporary feelings of identification with another gender. However, the consequences of a gender affirming surgery are permanent. Most importantly, reproductive capacity is lost.

Conclusion

It is about time that appropriate policies be enforced across States in this regard as well, in India, considering the unique circumstances of Indian States, since this is a State subject. The same would reduce ambiguity on the subject and strike a balance between LGBTQIA+ rights and the appropriate age for surgeries with permanent consequences.