Optional Grouping: Gender Therapy & Surgery

Typically, those who do not identify with the gender assigned to them at birth may want to go through surgeries to align more strongly with their chosen gender. However, a person does not have to go through any surgeries to be given recognition with their self-identified gender.((National Legal Services Authority v. Union of India & Ors (AIR 2014 SC, 1863 )). In this regard, given below are two of the most common forms of surgeries performed:

• Gender Affirmative Therapy (GAT) is a set of procedures, from psychological counselling to sex reassignment surgeries, which aim to change a persons appearance so that it will conform more strongly with the self-identified gender.  For example, Rita was identified to be female at birth, but while growing up, identifies herself as male, and may undergo GAT to masculinize her appearance through breast removal surgery, etc.

The Supreme Court((National Legal Services Authority v. Union of India & Ors (AIR 2014 SC, 1863 )) has held that it is a constitutional right for a person to be affirmed as male or female after the respective GAT, and that there is no impediment, legal or otherwise, in undergoing GAT.

•  Corrective surgery/intersex surgery refers to procedures done to modify sex characteristics and genitals when they are anomalous, meaning when there is no clear distinction between male and female genitals.  For example, a child, Nakul, is born with both male and female genitalia, and decides that he self-identifies and feels that his gender is male, and thus, undergoes corrective surgery to align more strongly to the male gender.

Though nation-wide regulations do not exist, some states, like Tamil Nadu, have banned unnecessary medical procedures on infants, to prevent illegal corrective surgery at a young age((Arunkumar vs The Inspector General Of Registration (WP(MD) No. 4125 of 2019 )).

Procedure for GAT and Corrective Surgery

In India, there are no guidelines for eligibility, procedure, etc. or laws on GAT or Corrective Surgery.

If a person faces any discrimination while accessing medical or psychological healthcare, they can take action to alleviate the problem. Read for more options in our explainer “What are the options if there is discrimination and harassment by medical personnel against LGBTQ+ persons?“.

When a person goes for any surgery including GAT or corrective surgery, remember that it cannot be done without their written consent. The age of consent for medical procedures is 18 years((Section 3, Indian Majority Act, 1875 )), and  consent given by a person of unsound mind or a child below 12 years is not valid.((Section 90, Indian Penal Code, 1860 )).

No one including hospitals, medical practitioners, acquaintances etc can force a person to undergo((National Legal Services Authority v. Union of India & Ors (AIR 2014 SC, 1863 )) GAT/Corrective Surgery as a legal condition for recognizing their gender identity.

The doctor doing any surgery needs to ensure that the consent given by the person is real consent, meaning the person giving consent should((Samira Kohli v. Dr. Prabha Machanda and Ors (2008) 2 SCC 1 )):

• Have the capacity and competence to consent. For example, someone of unsound mind will not be able to consent.
• Give consent voluntary. For example, if a person is being coerced by family members to undergo any procedure, it is not real consent.
• Be based on adequate information on the treatment procedure, so that the person knows what they are consenting to. Adequate information on the procedure includes:
  • The nature and procedure of the treatment;
  • Its purpose and benefits;
  • Its likely effects and any complications which may arise;
  • Any alternatives if available;
  • An outline of the substantial risks; and
  • Adverse consequences of refusing treatment.

However, adequate information need not include remote risks, rare complications and possible results of negligent surgery.

If a person faces any discrimination while accessing medical or psychological healthcare, they can take action to alleviate the problem. Read for more options in our explainer “What are the options if there is discrimination and harassment by medical personnel against LGBTQ+ persons?“