SRS
and the Indian law

The
sexual identity of a person has been an important factor in granting various
legal and civil rights to an individual. In India, the law determines the sex
of an individual based on prima facie factors like genitalia and secondary
sexual characteristics. It has over-looked the psychological sex of an
individual and this is the primary reason of conflict of the law with the
transgender community. A transgender is a person who belongs to a particular
sex anatomically but psychologically is obsessed with a desire to change to the
other sex, which according to him, is the right gender.1To
conform with the psychological identity of themselves, transgenders opt for sex
reassignment surgeries (SRS). Albeit, the landmark judgment NALSA v. Union of
India2 in
2014 formally recognized the fundamental rights of the transgender community
and did not make it mandatory for such people to first under-go SRS to enforce
their fundamental rights, the transgender community prefers to under-go SRS to
be socially accepted and recognized in the gender that they psychologically
consider themselves to belong to.

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As
highlighted in the NALSA judgment, SRS is a complicated procedure and involves
a 6-month long hormone therapy prior to the surgery. There is no law that
prohibits such a procedure nor is there any exhaustive regulation that
over-looks the issues related with SRS. The recently introduced Transgender
Persons (Protection of Rights) Bill, 2016 merely states that the government
must ensure separate facilities for SRS as well as post- SRS counselling.3
The bill fails to provide for any steps to be adhered to, to perform SRS. Due
to a lack of any legal embargo related to SRS, there are various issues that
lead to the ill-treatment and exploitation of the already side-lined
transgender community.

The
first main issue associated with SRS is the permissibility of the operation and
the general criminal law of consent to surgical treatment.4
Under Section 88 of the Indian Penal Code, the criminal liability of either
party has been made very clear. As per the Section, a doctor can perform
surgery on a patient only after attaining the patients consent provided that
the surgery is done for the benefit of the patient and is done in good faith.5
SRS 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 to
operate unless an affidavit is submitted in the court of law, along with a
witness and a doctor to affirm that such a procedure is permanent.6
Such a long-drawn process only furthers the misery of the transgender
community. The law must try to reduce unnecessary procedures to cater to the
needs and interests of the transgender community. It has to take into regard
the psychology of the transgender who is desperate to change their gender in
order to be socially recognized in that gender.

The
second issue associated with SRS is that the law treats transgenders as having
a mental disorder. As a result of which, persons opting for such surgeries need
to be declared as ‘suffering’ from a “gender identity disorder”7 by
a psychologist before they can avail hormone therapy for the surgery. The law
must change its conservative attitude with regard to transgenders and accept
them as any other normal human being in light of The Right to Equality8
under the constitution. Treating transgenders as having a “gender identity
disorder” would be morally wrong and against their right to self-identification9 as
promised in the NALSA judgment. Instead, the law can replace gender identity
disorder with “gender incongruence”10.
This is a more suitable term and doesn’t classify transgenders as having a
mental 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 not
be necessary for people opting for SRS to under-go a psychological test to
avail the hormone therapy.

The
third major issue associated with SRS is that it a very expensive procedure and
not easily accessible to the transgender community who are mostly not
economically well-off.11Even
though the government has been providing options of free surgeries at
government hospitals, safety, quality and rehabilitation are a major concern
among the transgender community. To assure this, a database of approved doctors
and remedial centres for post-surgery recovery maybe created in all government
hospitals. The law must ensure that post SRS the patients are given free
counselling sessions as well. 12

SRS
therefore poses several legal challenges, which currently, lacks any legal
embargo to regulate these challenges. To prevent the further marginalization of
the transgender community, the Government of India must take active steps to
legislate on these issues and assert the legal status of the transgender
community post SRS.

 

Legal
Consequences of SRS

Sex
reassignment surgeries enable a transgender to finally have their psychological
sex in harmony with their anatomical sex. However, the main issues arise
post-SRS. Issues vary from psychological or health to legal issues. The primary
legal issue is for the government to formally recognize the new gender of the
trans-individual. Various documents of identity, passports, birth-certificates
have to be changed in accordance with the new gender of the trans-individual.
The Transgender Persons (Protection of Rights) Bill, 2016 provides for a
procedure of procuring a certificate to be identified as a transgender on the
advice of a

1Kusum, The legal implications of Sex change surgery,
VOL. 25 NO. 1, JOURNAL OF THE INDIAN LAW INSTITUTE, 73-89, (1983)

2
National Legal Services Authority v. Union of India (2014) 5 SCC 438. (India)

3Transgender Persons
(Protection of Rights) Bill, 2016
http://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,
1860

6Ramya Jawahar
Kudekallu, Why transgender community is
struggling 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 for
free in all govt. hospitals, THE HINDU, Dec. 23, 2017, at 4.

8INDIAN CONSTITUTION,
Art. 14.

9National Legal
Services Authority v. Union of India (2014) 5 SCC 438. (India)

10 Anonymous, Perform
sex reassignment surgeries for free in all govt. hospitals, THE HINDU, Dec. 23,
2017, at 4.

11Shambavi Saxena, What sex reassignment surgeries are like in
India, YKA, https://www.youthkiawaaz.com/2017/01/sex-reassignment-surgeries-in-india/
(last visited 27 Dec., 2017).

12Supra note at 10.