This article is written by Arava Monisha of 3rd semester of Damodaram Sanjivayya National Law University, Visakhapatnam, Andhra Pradesh, an intern under Legal Vidhiya.
ABSTRACT
This article explores the Discrimination that is faced by the Intersex individuals, intricate connection between “Intersex rights and Medical ethics”, underscoring the need to find an equilibrium between medical interventions and preservation of one’s autonomy. Intersex individuals, characterized by inherent variations in “sex characteristics”, have historically been experiencing involuntary action and irreversible medical procedures. The core principle of autonomy underscores the entitlement of intersex individuals, or their guardians in the case of minors, to make well-informed decisions regarding their bodies. Informed consent, a fundamental facet of ethical healthcare, requires a thorough disclosure of potential risks and benefits associated with interventions. The principle of non-maleficence stresses the importance of medical practices prioritizing the well-being of intersex individuals, refraining from unnecessary and harmful interventions. Essential for healthcare providers is cultural competence and sensitivity, fostering an environment that honours the diverse experiences and perspectives of intersex individuals. Legal recognition further expands safeguards, addressing discrimination and ensuring precise gender identification. Despite progress, persistent challenges call for ongoing advocacy to establish ethical medical practices that champion intersex rights, ultimately contributing to a healthcare landscape characterized by compassion and justice.
Keywords
Intersex, Rights, Medical ethics, Guardians, Minors, Autonomy, Justice, Consent, Sensitivity, Safeguard.
INTRODUCTION
Individuals born with variations in sex characteristics, commonly referred to as intersex individuals, have historically encountered ethical dilemmas stemming from medical interventions. Striking a delicate balance between medical practices and the preservation of intersex rights is a multifaceted challenge, demanding meticulous contemplation and a dedication to ethical principles. This article delves into the convergence of intersex rights and medical ethics, underscoring the significance of principles such as autonomy, informed consent, and cultural competence in the quest for equitable and ethical healthcare practices. The central concern is navigating the delicate balance between medical necessity and the fundamental rights of intersex individuals, with a focus on autonomy. Emphasizing the need for sensitivity and ethical integrity, the discussion highlights key principles such as informed consent, non-maleficence, and cultural competence. In challenging historical norms of non-consensual interventions, the article advocates for transparent communication about risks and benefits associated with medical procedures. Ultimately, it seeks to unravel the intricacies of this intersection, promoting a healthcare landscape that prioritizes both ethical principles and the inherent dignity of intersex individuals.
INTERSEX RIGHTS
According to “UN Office of the High Commissioner for Human Rights-Individuals who are intersex are born with sex characteristics, such as chromosomes, gonads, or genitals, that do not fit typical binary notions of male or female bodies”.
From birth, intersex individuals commonly encounter stigmatization and discrimination, especially when their variations are visibly apparent. In certain nations, this mistreatment may extend to practices such as infanticide, abandonment, and the societal marginalization of families.[1]
“The United Nations” has actively advocated championing the rights of “sexual minorities”, including homosexual individuals, with a focus on the legally protected right to life. Fundamental rights are acknowledged in Articles 6 and 16 of both the “Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights”. “The Yogyakarta Principles,” established in 2006 through “a project led by the International Commission of Jurists and the International Service for Human Rights,” represent a unanimous effort to clarify and consolidate states obligations regarding human rights violations based on sexual inclination or gender specification. These “Yogyakarta principles”, crafted by human rights experts, provide a comprehensive framework for understanding and upholding the rights of sexual minorities globally.[2]
The Entitlement to Comprehensive Enjoyment of Human Rights
Entire individuals, irrespective of their sexual inclination or gender specification, are inherently qualified “to the complete enjoyment of human rights as they are born free and equal in dignity and rights”.
States have a duty to:
- Incorporate “the principles of universality, interrelatedness, interdependence, and indivisibility of all human rights into their national constitutions or relevant legislation.” Additionally, they must take practical steps to guarantee the comprehensive exercise of every human right.
- Revise any Statutes, including criminal laws, to align with the “universal enjoyment of human rights”, eliminating inconsistencies that may hinder such enjoyment.
- Implement education and awareness programs aimed at promoting and enhancing the exercise of the human rights for all individuals, regardless of their Sexual preference or gender expression.
- Incorporate a pluralistic approach into state policies and decision-making processes that identifies and asserts the interdependence, inseparability of every facet of “human identity, encompassing sexual inclination and gender categorization”.[3]
The Entitlement to Equal Treatment and the Absence of Discrimination
Everyone is entitled to the full enjoyment of all human rights without facing discrimination based on sexual orientation or gender identity. All individuals have the “Right to equality before the law and equal protection of the law, free from any such discrimination”, even when the enjoyment of other human rights is at stake. Individuals with intersex variations should be treated fairly and impartially, with their rights and dignity respected, and they should be free from any discrimination based on their intersex status. Law should explicitly restrict any form of injustice and ensure that every person receives uniform and efficient safeguarding from unfair treatment.[4]
The Entitlement to Acknowledgment Before the Law
Each individual possesses the inherent “Right to be recognized universally as a person under the law”. Individuals with various sexual inclinations and gender expressions have the right to lawful capability in every aspect of existence. A person’s self-described sexual inclination and gender categorization are essential elements of their “personality, constituting fundamental aspects of self-determination, dignity, and freedom”. The acknowledgment of gender identity in legal contexts should not depend on undergoing medical procedures, such as “sex reassignment surgery, sterilization, or hormonal therapy”. Moreover, no legal status, such as wedding or parenting, should be used to impede the recognition of an individual’s gender identity. It is imperative that no one is compelled to undergo medical interventions or experience coercion to hide, restrain, or negate their sexual inclination or gender categorization for legal recognition. This affirms the principle that legal recognition should uphold and uphold the innate dignity and autonomy of individuals, irrespective of their sexual identity.[5]
The Freedom to Life
Every person possesses the “fundamental right to life”, and no one should face arbitrary deprivation of life, irrespective of their sexual inclination or gender categorisation. The imposition of the death sentence should not be based on mutual sexual interactions among individuals above the age of consent. “It is a universal principle that the right to life is inviolable,” and considerations related to “sexual orientation or gender identity” should never serve as justifications for depriving individuals of this inherent right.[6]
The Right to Privacy
Every individual, irrespective of their “sexual inclination or gender specification”, has the right to privacy without facing wrongful or unauthorized intervention. This encompasses protection concerning “one’s family, home, correspondence”, as well as safeguarding against unjust assault on integrity, character and position. “The right to privacy inherently involves the freedom to decide whether or not to disclose information pertaining to one’s sexual orientation or gender identity, it also includes autonomy to make decisions regarding one’s body and engage in consensual sexual and other relations with others”. The protection of privacy is a universal entitlement that extends to all individuals, fostering an environment where personal choices and information are respected and safeguarded from unwarranted intrusion or harm.[7]
The Right to Humane Treatment in Detention
Every individual deprived of liberty is entitled to be treated with kindness and deep regard for the inherent dignity of every individual. It is acknowledged that sexual orientation and gender identity are integral components of an individual’s dignity. To uphold these principles, states should:
- Prevent the exacerbation of marginalization in detention based on “sexual inclination or gender specification”, safeguarding individuals from the risk of violence, ill-treatment, and various forms of abuse.
- Provide comprehensive medical care and counselling for those in custody, recognizing and addressing the specific needs of individuals “based on sexual orientation or gender identity”. This includes “Reproductive health, access to HIV/AIDS information and therapy, and the availability of hormonal or gender-reassignment treatments if desired”.
- Enable the active participation of all detainees in choices regarding the appropriate location of confinement, considering “sexual inclination and gender categorization”.
- Enforce safeguarding measures for inmates susceptible to harm or mistreatment based on their sexual inclination or gender representation. These measures should reasonably avoid imposing greater restrictions on their privilege than those encountered by the overall prison community.
- Guarantee uniform availability of spousal visits for every prisoner and detainee, regardless of their partner’s gender, as allowed. This ensures a non-discriminatory approach to the right to familial connections during detention.[8]
Protection Against Medical Abuses
Individuals cannot be compelled to “undergo any medical or psychological treatment, procedure, testing, or be confined to a medical facility solely based on their sexual orientation or gender identity”. Regardless of any categorizations suggesting otherwise, “A person’s sexual inclination and gender specification” should not be considered for medical conditions. Therefore, they should not be subjected to treatments aimed at curing or suppressing them and Intersex individuals should be protected from harm.[9]
The Right to Freedom of Speech and Expression
Every individual, irrespective of sexual inclination and gender specification, possesses the inherent “Right to freedom of opinion and expression”. This includes the capacity to articulate one’s identity or individuality by various means such as speech, behaviour, clothing, physical attributes, choice of name, or any other form of self-expression. “It also includes the freedom to actively seek, receive, and share information and ideas of all kinds, including those related to human rights, sexual orientation, and gender identity”. This right extends to all mediums of communication without limitations based on geographical boundaries.[10]
“The National Legal Services Authority v. Union of India”[11] is a groundbreaking Supreme Court judgment that established the ‘third gender’ status for transgender people in India. The petitioners, including the National Legal Services Authority and transgender activist Laxmi Narayan Tripathy, played a pivotal role in advocating for the rights and recognition of the transgender community in India.
This landmark decision affirms that transgender individuals are entitled to the same fundamental rights guaranteed under the Constitution as males and females, including the “Right to self-identify as male, female, or third gender”. The court rejected the imposition of a biological test for gender recognition and declared the requirement of “Sex Reassignment Surgery (SRS)” a prerequisite for altering one’s gender is unlawful, emphasizing a preference for a psychological test. The judgment also supervised the central and the state governments to provide acknowledgement of gender identity under law and take measures to address discrimination faced by transgender individuals in various spheres.[12]
This includes ensuring access to medical care, separate public facilities, and HIV/Sero-surveillance measures. Additionally, the court recognized the socio-economic backwardness of the transgender community and mandated reservations in educational institutions and public appointments. The judgment emphasized the need for public awareness initiatives to combat social stigma, discrimination, and other challenges faced by the transgender population, promoting their integration and respect in society.[13]
MEDICAL ETHICS TOWARDS THE INTERSEX
Informed Consent
Intersex individuals have the right to be fully informed about any proposed medical interventions and to provide informed consent or refusal. This includes comprehensive information about potential risks, benefits, and alternatives. In case of a child the consent of the parents is necessary. It is often assumed that parents have the authority to provide the consent for “feminizing or masculinizing interventions on their child”, a practice that is commonly regarded as the standard in the treatment of physical disorders.[14]
Societal Stigma and Regularity
Parents might be directed that opting for surgery is a way to shield their child from societal stigma, but their decisions might be different if they have access to information not framed in a medical context. Importantly, there is no evidence supporting the notion that surgeries enhance the psychological well-being of children as they mature. In contrast to other aesthetic procedures for infants, genital surgeries can have enduring adverse effects on sexual functioning, leading to issues like the loss of sensation. This fosters the feelings of abnormality and unacceptability that affect an individual’s overall well-being and quality of life. Studies underscore the psychological impact of surgical interventions, underscoring the need for psychological support in the development of a child’s gender identity.[15]
Capturing and Exhibiting Medical Imagery
Photographs of the genitalia of “Intersex children” are shared within medical circles for documentation, and “individuals with intersex traits” may undergo multiple genital examinations, often displayed to medical teams. Concerns related to the practice of medical imaging involves ethical considerations, control over the images, and their intended use. Many individuals with intersex conditions have found that the experience of being photographed symbolizes the sense of powerlessness and humiliation often associated with medical investigations and interventions.[16]
Secrecy
Moreover, parents are frequently excluded from the involvement in decision s concerning the determination of the “child’s gender”, and they might be recommended to keep certain information hidden from their child. “The Intersex Society of North America” has highlighted that for many years, medical professionals have followed an approach focused on concealment when dealing with intersex, advocating for downplaying the condition extensively, even to the extent of providing false information to patients about their circumstances.[17]
Honouring Autonomy
The principle of honouring autonomy underscores the significance of individuals having the freedom to make decisions regarding their own bodies. In the context of intersex, this involves acknowledging and respecting the autonomy of intersex individuals or their parents in the decision-making process.
CONCLUSION
Safeguarding the rights of intersex individuals and adhering to ethical standards in medical practices are crucial for building a more inclusive and considerate society. Upholding autonomy is key in medical ethics, urging that interventions for intersex children prioritize their well-being and rights while avoiding irreversible procedures without informed consent. In conclusion, advocating for intersex rights emphasizes the significance of promoting bodily autonomy, non-discrimination, and dignity. Medical professionals should engage in transparent communication with intersex individuals and their families, acknowledging diverse identities and choices. Collaborative efforts involving healthcare practitioners, advocacy groups, and policymakers are essential to establish guidelines that prioritize the physical and mental health of intersex individuals while respecting their right to self-determination. Fostering a culture of understanding and acceptance is critical for dismantling stigmas associated with intersex variations, creating an environment where everyone can live authentically and without discrimination. Ultimately, championing intersex rights aligns with the broader ethical imperative of ensuring medical practices prioritize the well-being and autonomy of every individual.Top of Form
[1] Intersex human rights (2023) Wikipedia, https://en.wikipedia.org/wiki/Intersex_human_rights (Accessed: 16 December 2023).
[2] In the Supreme Court of India Civil Original Jurisdiction Writ Petition, https://main.sci.gov.in/jonew/judis/41411.pdf (Accessed: 16 December 2023).
[3] In the Supreme Court of India Civil Original Jurisdiction Writ Petition, https://main.sci.gov.in/jonew/judis/41411.pdf (Accessed: 16 December 2023).
[4] In the Supreme Court of India Civil Original Jurisdiction Writ Petition, https://main.sci.gov.in/jonew/judis/41411.pdf (Accessed: 16 December 2023).
[5] Ibid.
[6] In the Supreme Court of India Civil Original Jurisdiction Writ Petition, https://main.sci.gov.in/jonew/judis/41411.pdf (Accessed: 16 December 2023).
[7] In the Supreme Court of India Civil Original Jurisdiction Writ Petition, https://main.sci.gov.in/jonew/judis/41411.pdf (Accessed: 16 December 2023).
[8] Ibid.
[9] In the Supreme Court of India Civil Original Jurisdiction Writ Petition, https://main.sci.gov.in/jonew/judis/41411.pdf (Accessed: 16 December 2023).
[10] Ibid.
[11] The National Legal Services Authority v. Union of India, AIR 2014 SC 1863; (2014) 5 SCC 438.
[12] Wikipedia, https://en.wikipedia.org/wiki/National_Legal_Services_Authority_v._Union_of_India (Accessed: 16 December 2023).
[13] Wikipedia, https://en.wikipedia.org/wiki/National_Legal_Services_Authority_v._Union_of_India (Accessed: 16 December 2023).
[14] Wikipedia, https://en.wikipedia.org/wiki/Intersex_medical_interventions (Accessed: 16 December 2023).
[15] Ibid.
[16] Wikipedia, https://en.wikipedia.org/wiki/Intersex_medical_interventions (Accessed: 16 December 2023).
[17] Ibid.
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