LEGAL IMPLICATION OF SEX CHANGE SURGERY IN INDIA

The world we live in today has been developed in every possible way from technology
to biology. The human mentality has also been evolved with their different
characteristics. The part we are discussing today is on the legal implication of sex-
change surgery in India as it one of the least discussed topics amongst all and every
person should have some basic concept and legal knowledge on the said matter.

The concept of transsexualism is not new to the Indian culture as we can find traces of
such in Ramayana as the mentioned King Ila who spent his half-life as a man and half
as a woman. Arjun in Mahabharata is also said to be spent one year in intersexed
condition. Even there is a god in Indian Mythology named as Ardhanarishwara who is
half man and half woman.

There are numerous cases where I person is not satisfied with his or her born gender
and desires to adopt the alter gender through surgery. This gender is known as
transgender. When a person feels miserable of his genetical organ has the option to opt
for surgery in order to adapt to the society says J.Morris. If a person is not willing to
live by the born gender and think that he is trapped in a wrong body generally propose
for sex surgery.

The surgery is basically the removal of one sex organs and construction of artificial
external genital organs for changing the gender of the person. For a male, the genital
organs are removed by surgery and female genital organs are made artificially and are
constructed to the body and vice versa in case of a female body. The construction of
those genital organs is made through plastic surgery. There are uses of hormonal
treatment which helps to provide some changes in secondary sex characteristics which
is also equally important for the body to be suitable to accept the changes occurring
during the surgery. Though the person after the surgery will be able intercourse but will
remain sterile as the chromosomal of the body cannot be changed till date. The surgery
can only fulfil the desire to have a single-sex genital, having desired intercourses and fit
with the society but will not be able to provide all the capability of the same sex.

Almost in every country, this operation is legal as it is a choice by the person. Argentina
is the country which allows the surgery with only consent from the interested person but
whereas in Belgium, adequate pre-operative medical evaluation is equally valued with
the consent of the interested person.The Candian criminal Procedure Code allows the
surgery and also protects any kind of criminal performance. In England, therapeutic
purposes are to be provided to undergo such surgery. In India, there were no such cases
to deal with until a girl from Karimganj Bihar was questioned. As an athlete she was
praiseworthy but afterwards, she was denied to play kabbadi in which she had won
many awards earlier. She had masculine characteristic growth on her body such as
moustache. Her doctor suggested opting a surgery to change her sex. Though its not
unnatural but for a lady to sustain in the society that surgery is needed so that those
types of people do not feel left out and they do have every single right and duty as the
others and if surgeries like this helps someone to sustain and stay in the society with
legitimate respect then no one has the right to stop or bar them from these kinds of
surgery.

Section 88 of The Indian Penal Code provides rights and duties against any criminal
intention. The act provides that any act done by the medical practitioner shall be
checked properly and every risk shall be minimized and informed to the patient before
performing the surgery and all the necessary steps are to be followed which have been
prescribed by the law failing such shall be the liability of the surgeon (exceptions are
there).

GAS (Gender Affirmation Surgery) is the name of the surgery and there are certain
conditions which need to be fulfilled by the interested person in case of opting the
surgery. Firstly there should be a presence of discomfort and inappropriateness with the
born sex and its organs. The surgery does need the consent to change the genitalia to the
opposite sex and the avidity to stay as another gender for the rest of the life. The
willingness, the discomfort, and the inappropriateness shall be present at least for 2
years and not in a limited manner stress as under such no decision shall be made. Any
mental disorder or schizophrenia cannot be a ground for opting any GAS as well as
there shall not be an absence of physical intersex or genetic abnormality.

Differential diagnosis of the condition may be-

 Classic transsexual.
 Gender dysphoria syndrome, (formerly effeminate homosexuality)
 Gender dysphoria syndrome, (formerly transvestitism)
 Gender dysphoria syndrome, psychosis.
 Gender dysphoria syndrome, psychoneurotic sociopathy.
 Gender dysphoria syndrome, inadequate and schizoid personality.

Henceforth there are few requirements of referral letters from mental health
professionals. For hormone therapy, a letter from a mental health professional is
required. The mental health professional is to send the letter to the physician
responsible for the patient’s medical treatment. That is enough for the institution of
hormonal surgery or breast surgery for example mastectomy, chest reconstruction, or
augmentation mammoplasty. However for genital surgeries, letters from not one but
two mental health professionals are required. Genital surgeries are of two types. One
being genital surgery for male to female transsexuals which includes - orchiectomy,
penectomy, clitoroplasty, labiaplasty or creation of a neovagina. The other being
Genital surgery for female to male transsexuals includes - hysterectomy, salpingo -
oophorectomy, vaginectomy, metoidioplasty, scrotoplasty, urethroplasty, placement of
testicular prostheses or creation of a neophallus.
 The documentation of the mental health professionals should include seven points.
These points are as follows:

1. A description of patient's general identifying characteristics.

2. Initial and evolving gender, sexual and other psychiatric diagnoses.
3. Duration of professional relationship with the patient, number of consults, the type of
psychotherapy or evaluation that the patient underwent.
4. Specifying the eligibility criteria that have been met and the rationale for prescribing
hormone therapy or surgery.
5. Degree to which the patient has followed the Standards of Care till the time of writing,
and the likelihood of future compliance.
6. Whether the mental health professional is part of a gender team.
7. That the mental health professional would like to receive a phone call from the gender
team confirming the authenticity of this letter.

In spite of the controversy regarding trans-sexuality and sex change operation, hormone
therapy actually is important. Trans-sex hormonal treatments are necessary for smooth
gender transition, both physical and psychological. This proves to be vital especially if
the selected individual preparing for the treatment has any gender identity disorders.
Hormone therapy is also medically necessary for the individual to adapt to their role
new sex. When physicians administer androgens to biologic females and estrogens,
progesterone, and testosterone -blocking agents to biologic males, patients feel and
appear more like members of their preferred sex.
Eligibility criteria for hormone therapy -

Administration of hormones is not to be taken lightly because of associated medical and

social risks. The criteria are -
1. Age 18 years or above.
2. In depth knowledge of what hormones can achieve medically, their social benefits
and risks.
3a. A documented real - life experience of at least 3 months prior to the administration
of hormones or
 3b. A period of psychotherapy of a duration specified by the mental health professional
after the initial evaluation (usually a minimum of 3 months).
Apart from these criterions there must be certain consent forms. They are:

a. Procedure - specific consent form: It includes a description of the surgical procedure. It

also mentions the surgical and anaesthetic complications that may occur. This also
includes an estimate of the procedure.
b. Waiver of Liability Form: It contains a waiver of liability from the change in sexual
appearance, long term use of hormones and permanent, irreversible change in current
sexual functioning.
c. Spousal Release Form: This is used if the patient is married.
d. Parental Consent Form: This is used if patient is less than 20 years of age. Currently the
management of transsexuals is not started before the age of 18 years except in the
Netherlands (due to the pioneering work of Dr. Cohen Kettenis) and otherwise under
exceptional circumstances.

The waiver of liability form, spouse release form, and the parental consent form can be
converted into affidavits by paying the Notary or Court Fee and getting the counter
signatures of a Notary or Magistrate, respectively. This means that now the state is a
witness. A consent form is advisable for the safety and as an evidential document and
the parental consent is mandatory when the patient is ought to be a minor and all the
decisions and steps are to be followed in a very precise and specific manner and there
should be a minimal chances of any risks.A few other issues concerning the patient
include change in name, change of name and sex in various certificates, identity cards
and passports.

Countries like UK and USA does support these kinds of surgery and has legal supports
for their rights and duties. India did have many cases of such surgery and the Indian
surgeons had faced many difficulties but the Indian legal system has been silent on the
backing up on this kind of surgery. Protecting the rights and providing support to the
patient should be an aim from the legal bodies of India and India does needs laws
safeguarding the patient as the Indian society are not that open to the transsexuals which
needs to be changed. Every citizen is protected by the constitution regardless of their
caste, creed, class and gender and they have the equal rights.