The real truth

The real truth

Queering Law

The opposition to LGBTI rights has sought to portray the issue itself as ‘western’ and an ‘import’ from the west. While it is true that many landmarks in LGBTI history right from the Stonewall riots to the first recognition of gay marriage were in the west, the global south has also played a significant leadership role in taking forward LGBTI rights.

Perhaps nowhere is this more true than when we come to transgender rights. The first country in the world to recognise transgender persons right to self-identification in the gender of their choice was Argentina in 2012. Till today many countries in Europe and the US still require proof of medical intervention to legally change one’s gender. In India, it is more of a mixed picture. We had an incredibly progressive judgement by the Supreme Court in NALSA vs Union of India in 2004, which centrally recognised the right to legal gender recognition. This right to recognition in the gender of one’s choice was however diluted by the Parliament in the newly passed Transgender Persons Act, 2019 by imposing onerous medical requirements.

Protection of autonomy

When it comes to the rights of persons who are born intersex, the global south is again showing the way as this month a Bill was introduced in Argentinian Congress for the ‘Integral Protection of Sex Characteristics’. If passed, this will be the most comprehensive law on rights of intersex persons in the world. The Bill outlines the rights of all persons to ‘protection of their autonomy and bodily integrity in regard to their sex characteristics, and to non-discrimination based on those characteristics’.

What this bill seeks to outlaw is what intersex activists describe as ‘cosmetic surgery’ which seeks to alter the sex characteristics of those born with ambiguous genitalia at birth without any medical necessity. The choice to decide if such surgery should be performed should be made with the consent of those who are affected and not by third parties be it parents or doctors. The Bill challenges the age-old fear and discrimination that intersex infants face in almost all cultures around the world by proposing a ‘Truth Commission’ which will establish the ‘truth of what has happened to those born with intersex variations’. 

One hopes that India too can learn from queer activism in the global south and begin to address the rights violations suffered by those who are born intersex.

(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)