NEW DELHI: In a fresh intervention to protect rights of queer community, the Supreme Court on Monday sought Union govt’s response to a PIL which sought to restrain parents from subjecting their intersex child to sex-reassignment surgery and to leave it to the child to decide when he/she attains the age to give informed consent in this regard.
A bench of Chief Justice D Y Chandrachud, and Justices J B Pardiwala and Manoj Misra agreed to examine the issue raised by petitioner Gopi Shankar, whose counsel said that only Tamil Nadu govt has issued a notification barring parents from surgically assigning a gender to their inter-sex children following a decision of Madras HC in April 2019.
A 5-J bench of the SC had unanimously rejected the marriage right plea of queer community. The majority opinion, authored by Justice S R Bhat and agreed to by Justices Hima Kohli and P S Narasimha, had rejected even civil union rights for LGBTQIA+ community.
However, CJI Chandrachud and Justice S K Kaul had ruled in favour of granting the queer couples the right to civil union, adoption, and those ancillary to it.
Shankar’s petition, filed through Aastha Deep, stated that there is no legal mechanism available at present in the country, except in TN, to protect the rights of inter-sex children to take an informed decision as to what gender they would like to be identified with. The bench issued notice to Centre and requested additional solicitor general Aishwarya Bhati to assist the court.
Madras HC’s Justice G R Swaminathan in April 2019 had referred to the SC’s 2004 judgment on NALSA case, in which the apex court had said that no one can be forced to undergo sex reassignment surgeries.
Justice Swaminathan ruled, When a child is born, it is usually endowed with male or female genitalia. But there are children who are born with genitalia that belong to neither category. They are known as intersex children. They must be given their time and space to find their true gender identity. While asking the TN government to issue a notification, the HC had said consent of parents cannot be the intersex child’s consent.
