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Yes, you can identify as a different gender from the one assigned to you at birth, even without undergoing surgery. The Supreme Court of India((National Legal Services Authority v. Union of India & Ors. (AIR 2014 SC 1863))) has held that you do not have to go through any medical procedures to be able to identify with the gender of your choice.
Theme: Healthcare for LGBTQ+ Persons
What do I do if hospitals perform surgery on me without my permission, as an LGBTQ+ person?
What is the need for LGBTQ+ specific healthcare?
LGBTQ+ persons might have healthcare needs that are specific and unique to their experiences. Some of the common healthcare issues are:
- Mental health issues
- Sexual health issues
- Physical issues with respect to gender-altering surgeries
There may also be a social bias present, which may make accessing adequate healthcare difficult. For example, a therapist may refuse to treat someone because they are gay or a transgender person. This may result in people avoiding treatment in a timely manner, or may result in a person not disclosing their true gender/sexual identity, which may lead to added complications. This is why it is important for to understand your rights while accessing healthcare.
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?“.
What are the rights of LGBTQ+ persons with respect to mental health?
Trigger Warning: The following content contains information on mental health issues which some readers may find disturbing.
Not being a straight person/cisgendered is not grounds for being diagnosed with a mental disorder. This means merely being a LGBTQ+ person does not make someone mentally ill.((National Legal Services Authority v. Union of India & Ors. (AIR 2014 SC 1863 )). However, when a person experience significant distress due to the difference between the gender assigned at birth and gender that they identify with, they may be diagnosed with Gender Identity Disorder.((ICD.Codes, ICD-10-CM Code F64.8, https://icd.codes/icd10cm/F648; Section 2(s), Mental Healthcare Act, 2017 )).
In India, an LGBTQ+ have some rights with respect to mental health:
- A person cannot be categorised as mentally ill merely if they do not conform to the moral, social, cultural, work or political values or religious beliefs of the community.((Section 3 (3), Mental Healthcare Act, 2017 )) For example, a person is not mentally ill just because they are gay.
- A person has a right to mental healthcare services offered by mental healthcare establishments funded/run by the government((Section 18 (1), Mental Healthcare Act, 2017 )).
- Healthcare services cannot be denied to anyone, as referred to above, on the basis of sex, gender or sexual orientation, etc.((Section 18 (2), Mental Healthcare Act, 2017 )).
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?“.
What are the common sexual health issues faced by LGBTQ+ Persons?
Trigger Warning: The following content contains information on sexual health issues which some readers may find disturbing.
A person may be at risk of contracting Sexually Transmitted Infections/Diseases (STI/STD) like gonorrhea, syphilis, AIDS, etc., if they are sexually active. The risk of contraction may be higher if a person fall into certain categories. For example, in a report, the National AIDS Control Program1 identified Men Having Sex With Men (MSM) and transgender persons as one of the high-risk groups for HIV/AIDS.
If a person is sexually active, they should speak to their doctor about STI prevention, screening tests recommended, etc.
Government-Aided Schemes and Clinics
The government has come up with various schemes to help people suffering from STIs, irrespective of gender identity or sexual orientation. Please see here for a state-wise list of clinics providing free services to such persons.
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?“.
- National Aids Control Organization, Ministry of Health and Family Welfare, Government of India http://naco.gov.in/ [↩]
What is gender affirmative therapy and corrective surgery for LGBTQ+ persons?
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?“.
What is the importance of consent for GAT and Corrective surgery?
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?“
What are the options if there is discrimination and harassment by medical personnel against LGBTQ+ persons?
LGBTQ+ persons may face harassment or discrimination by medical personnel like doctors, nurses, psychologists, psychiatrists, etc. For example, some hospitals may deny treatment for a Sexually Transmitted Infection (STI) because of a persons sexual orientation or gender identity, i.e, if they are a gay, bisexual, etc.
In such cases, a person can take appropriate action so that they can access healthcare in a safe and supportive environment. Read our explainer on “Complaining or Reporting Problems by LGBTQ+ persons” . A person can also take help and support from lawyers, NGOs, etc. who will guide them through any issues they may face.