The equal rights movement in the South Asian region has seen several milestones in the last decade. Issues related to sexual orientation, gender identity and expression and sex characteristics (SOGIESC) are increasingly becoming part of the mainstream civil rights discourse. Several South Asian countries including India, Pakistan, Bangladesh, Nepal have taken steps to create a legal protection regime for the rights of people with diverse SOGIESC identities. However, it has been observed that the understanding of SOGIESC identities in most South Asian countries continues to be driven by a Eurocentric lens. It is important to mention here that the above-mentioned countries were under the colonial rule of British or other European countries. It was in the colonial era when these identities were criminalised by law, and most countries retained such laws even after independence. As a consequence, the law-making on issues related to gender and sexuality continues to be rooted in heteronormative notions and results in erasure of several SOGIESC identities. Intersex people are often invisiblised in the public discourse in general and legal arena in particular. While the recent developments in South Asia need to be celebrated, it is also important to examine the extent to which intersex people are protected by such laws.
Queer Rights in Asia: Historical Perspective
The queer liberation movement has taken different trajectories in different countries in the South Asian region. For decades, decriminalisation of homosexuality has remained the focus of the queer movement and therefore, the discussion on issues related to gender identity and sex characteristics were always eclipsed by the discourse around sexual orientation. This led to further marginalisation of transgender and intersex persons. While there have been several progressive judgments from Constitutional Courts in the above-mentioned countries which recognised the rights of transgender persons, the subject of intersex human rights continues to remain off the grid in the legal sphere.
To understand the current state of affairs, it is important to trace the origins of the erstwhile legal framework in India, Pakistan, Nepal, and Bangladesh. Except for Nepal, the countries of India, Pakistan, and Bangladesh were not distinct states prior to 1950s, and the undivided region was ruled by the British for more than two centuries. During this phase, the British enacted a comprehensive criminal law regime in which one particular provision i.e. Section 377 of the Indian Penal Code, 1860 penalised adult consensual same-sex relationships. This provision remained on the statute book till it was finally outlawed by the Indian Supreme Court in the year 2018. When it comes to other SOGIESC identities, the British enacted Criminal Tribes Act, 1871 which homogenised all the indigenous gender variant communities and criminalised them.
Since then, gender variant groups have been at the receiving end of serious discrimination and abuse due to continuance of unjust laws. It is important to mention here that members of transgender community have had a long-standing history, and they have even been visible in their own identities which are known by different names in the region. However, it is not the same for intersex people who do not have a community of their own. More often than not, they are considered to be a transgender person which is essentially a gender identity as opposed to intersex which is a biological sex characteristic. This distinction is overlooked in public discourse as well as legal parlance. The recently enacted Indian law – Transgender Persons (Protection of Rights) Act, 2019 is a case in point. Moreover, the judicial pronouncements in the above-mentioned Asian countries have also not been able to appreciate the distinction between transgender people and intersex people. In each of these legal developments, the history of law-making on this subject has played a vital role in determining the course of the discussion on intersex human rights.
Emergence of Intersex Human Rights Movement
As mentioned earlier, the intersex human rights as a subject have remained an undercurrent in the queer movement across the South Asian region. There is hardly any conversation at the national level in any of the countries on this subject. The issue of invisiblisation of intersex people was aptly highlighted in the First Asian Intersex Forum which stated the following in its Public Statement: “Throughout Asia, lack of awareness about intersex issues from medical professionals leads to unnecessary and inhumane medical procedures, which include ‘normalising’ surgeries and treatments on intersex infants, adolescents and adults.” This section is aimed at examining the legal developments in each of the mentioned Asian countries from the perspective of intersex human rights.
As mentioned in the Public Statement of Asian Intersex Forum, the harrowing practice of unnecessary ‘normalising’ surgeries on intersex infants and children is still continuing. In this regard, a major breakthrough was achieved last year in 2019 when Madras High Court in India passed a remarkable judgment directing a ban on unnecessary medical surgeries on intersex infants and children in the state of Tamil Nadu. The Tamil Nadu government passed a Government order giving effect to the directions of the Court. It was hoped that this practice would also be declared unlawful while the Indian Parliament discussed the draft law for transgender persons. Early this year, the Transgender Persons Act was passed. The enacted version came under heavy criticism from the intersex activists as it did not place a legislative ban on intersex surgeries.
In 2007, the Nepalese Supreme Court recognised a ‘third gender’ category, which comprised of intersex people and also called for a “declaration for full fundamental human rights for all sexual and gender minorities-lesbian, gay, bisexual, transgender, and intersex citizens.” While the Court did recognise the right to self-determine one’s identity, it homogenised the gender diversity under one category. Few years later, the Indian Supreme Court in 2014 repeated the same error in a judgment and created a ‘third gender’ category. These judgments need to be appreciated for recognising the constitutional rights of various transgender communities. At the same time, it needs to be remembered that these judgments have created to a problematic narrative for gender diverse people. In Pakistan, the discourse on this issue began with a 2009 Supreme Court judgment which took cognisance of human rights violations against the Hijra community and declared that they are entitled to constitutional rights.
When it comes to the legislative definition, the recently enacted Pakistan law defined “transgender person” as an “intersex (Khunsa) with mixture of male and female genital features or congenital ambiguities” or a male who “undergoes genital excision or castration”, or “any person whose gender identity and/or gender expression differs from the social norms and cultural expectations based on the sex they were assigned at the time of their birth”. Again, the intersex people have not been distinguished from transgender people. When it comes to Bangladesh, the 2013 ordinance promulgated by the government suffers from similar anomalies as it does not distinguish between a transgender person and intersex person. As per the law in Bangladesh, ‘third gender’ was introduced as an option in the identity documents, and people from gender diverse groups could identify themselves as ‘Hijra’. Clearly, the legal developments in each of the above-mentioned jurisdictions are at complete variance with the demands of the intersex community. Among other demands, the public statement of the Asian Intersex Forum in 2018 particularly highlighted the distinction between transgender people and intersex people in the following words:
“to recognise that being intersex relates to biological sex characteristics, and is distinct from a person’s sexual orientation or gender identity.”
Going forward, it is hoped that demands of intersex people will be given due consideration in the legal systems. It is critical to legally recognise the distinction between the needs of transgender people and intersex people. Lastly, it is also imperative that the law provides for a complete ban on unnecessary medical surgeries on intersex infants and children. The state of Tamil Nadu has showed the way in this direction. It is instructive for the Indian Parliament and the Union legislatures in the neighbouring countries Nepal, Pakistan and Bangladesh to emulate the model adopted by the state of Tamil Nadu.