SRSand the Indian lawThesexual identity of a person has been an important factor in granting variouslegal and civil rights to an individual. In India, the law determines the sexof an individual based on prima facie factors like genitalia and secondarysexual characteristics. It has over-looked the psychological sex of anindividual and this is the primary reason of conflict of the law with thetransgender community. A transgender is a person who belongs to a particularsex anatomically but psychologically is obsessed with a desire to change to theother sex, which according to him, is the right gender.1Toconform with the psychological identity of themselves, transgenders opt for sexreassignment surgeries (SRS). Albeit, the landmark judgment NALSA v.
Union ofIndia2 in2014 formally recognized the fundamental rights of the transgender communityand did not make it mandatory for such people to first under-go SRS to enforcetheir fundamental rights, the transgender community prefers to under-go SRS tobe socially accepted and recognized in the gender that they psychologicallyconsider themselves to belong to. Ashighlighted in the NALSA judgment, SRS is a complicated procedure and involvesa 6-month long hormone therapy prior to the surgery. There is no law thatprohibits such a procedure nor is there any exhaustive regulation thatover-looks the issues related with SRS. The recently introduced TransgenderPersons (Protection of Rights) Bill, 2016 merely states that the governmentmust ensure separate facilities for SRS as well as post- SRS counselling.
3The bill fails to provide for any steps to be adhered to, to perform SRS. Dueto a lack of any legal embargo related to SRS, there are various issues thatlead to the ill-treatment and exploitation of the already side-linedtransgender community. Thefirst main issue associated with SRS is the permissibility of the operation andthe general criminal law of consent to surgical treatment.4Under Section 88 of the Indian Penal Code, the criminal liability of eitherparty has been made very clear.
As per the Section, a doctor can performsurgery on a patient only after attaining the patients consent provided thatthe surgery is done for the benefit of the patient and is done in good faith.5SRS being a new advancement in medicine is very different from other surgeries.Many a time, the patient might give his consent, but the doctors prefer not tooperate unless an affidavit is submitted in the court of law, along with awitness and a doctor to affirm that such a procedure is permanent.
6Such a long-drawn process only furthers the misery of the transgendercommunity. The law must try to reduce unnecessary procedures to cater to theneeds and interests of the transgender community. It has to take into regardthe psychology of the transgender who is desperate to change their gender inorder to be socially recognized in that gender.Thesecond issue associated with SRS is that the law treats transgenders as havinga mental disorder.
As a result of which, persons opting for such surgeries needto be declared as ‘suffering’ from a “gender identity disorder”7 bya psychologist before they can avail hormone therapy for the surgery. The lawmust change its conservative attitude with regard to transgenders and acceptthem as any other normal human being in light of The Right to Equality8under the constitution. Treating transgenders as having a “gender identitydisorder” would be morally wrong and against their right to self-identification9 aspromised in the NALSA judgment. Instead, the law can replace gender identitydisorder with “gender incongruence”10.This is a more suitable term and doesn’t classify transgenders as having amental disorder. The term disorder itself suggests that such people are’abnormal’ and gives reason for the society to treat them differently than’normal’ people.Furthermore, by not considering it as a disorder, it would notbe necessary for people opting for SRS to under-go a psychological test toavail the hormone therapy.
Thethird major issue associated with SRS is that it a very expensive procedure andnot easily accessible to the transgender community who are mostly noteconomically well-off.11Eventhough the government has been providing options of free surgeries atgovernment hospitals, safety, quality and rehabilitation are a major concernamong the transgender community. To assure this, a database of approved doctorsand remedial centres for post-surgery recovery maybe created in all governmenthospitals.
The law must ensure that post SRS the patients are given freecounselling sessions as well. 12SRStherefore poses several legal challenges, which currently, lacks any legalembargo to regulate these challenges. To prevent the further marginalization ofthe transgender community, the Government of India must take active steps tolegislate on these issues and assert the legal status of the transgendercommunity post SRS. LegalConsequences of SRS Sexreassignment surgeries enable a transgender to finally have their psychologicalsex in harmony with their anatomical sex. However, the main issues arisepost-SRS. Issues vary from psychological or health to legal issues. The primarylegal issue is for the government to formally recognize the new gender of thetrans-individual. Various documents of identity, passports, birth-certificateshave to be changed in accordance with the new gender of the trans-individual.
The Transgender Persons (Protection of Rights) Bill, 2016 provides for aprocedure of procuring a certificate to be identified as a transgender on theadvice of a 1Kusum, The legal implications of Sex change surgery,VOL. 25 NO. 1, JOURNAL OF THE INDIAN LAW INSTITUTE, 73-89, (1983)2National Legal Services Authority v. Union of India (2014) 5 SCC 438. (India)3Transgender Persons(Protection of Rights) Bill, 2016http://www.
prsindia.org/uploads/media/Transgender/Transgender%20Persons%20Bill,%202016.pdf(last visited 24th Dec., 2017). 4 Kusum, supra note 1.
5 Indian Penal Code,18606Ramya JawaharKudekallu, Why transgender community isstruggling in spite of NALSA judgement, DAILY O,https://www.dailyo.in/politics/transgender-nalsa-judgment-aadhar-card-gender-rights-self-identification/story/1/15462.html(last visited 27th Dec., 2017). 7Anonymous,Perform sex reassignment surgeries forfree in all govt. hospitals, THE HINDU, Dec.
23, 2017, at 4. 8INDIAN CONSTITUTION,Art. 14. 9National LegalServices Authority v.
Union of India (2014) 5 SCC 438. (India) 10 Anonymous, Performsex reassignment surgeries for free in all govt. hospitals, THE HINDU, Dec. 23,2017, at 4.11Shambavi Saxena, What sex reassignment surgeries are like inIndia, YKA, https://www.
youthkiawaaz.com/2017/01/sex-reassignment-surgeries-in-india/(last visited 27 Dec., 2017).
12Supra note at 10.