JURIST Guest Columnist Akhil Kang, discusses a case in Punjab and Haryana High court where castrated cis-gendered men brought a criminal case against religious groups claiming that they were induced to undergo castration on the promise of attaining higher enlightenment…

Hans Raj Chauhan in the state of Haryana in northern India filed a case against the Dera Sacha Sauda (a religious sect) for inducing him and around 400 other men to undergo castration in the hope that emasculation would lead to realization of God. The case essentially talks about the need for the Central Bureau of Investigation (CBI), an investigative police agency under the jurisdiction of government of India, to make an enquiry into the allegations given the huge political and social influence of the Dera. Although the case might be just another one determining the extent of criminal liability for grievous hurt, but an important point to note is that the court makes is about emasculation being a violation of human rights.

The court notes that there “could be no consent to castration for a normal person”. Reading Section 320 of the Indian Penal Code which defines grievous hurt to include emasculation, the court concludes that a person, a normal person, can never consent to being castrated on the belief or faith of finding God. Castration or ‘genital mutilation of reproductive organs’ (according to the court) is no doubt, very widely practiced (particularly among women) in India. Voluntary castration prevalent among trans* persons “is different pathetic story to which we (the court) are not concerned about.” Although the court makes a very passing reference to trans* individuals in its judgment, saying that voluntary castration prevalent among trans* persons “is different pathetic story to which we (the court) are not concerned about,” it becomes quite important to note that such cases could become quite pivotal to conceptualizing rights and making sustainable claims for them.

The problem with many off hand references to trans* individuals in many judgments is that they often get ignored or side-lined because of their evident biased colouring of a significant marginalized population of the country. Therefore, the impact that it could or might have on that population somewhere gets lost in trying to sanitize the language that the judge ought to or could have used. The judgment might not talk about the implications of genital altering surgeries on trans* individuals except for the fact that trans* individuals voluntarily undergo them because of ‘emotional compulsion’ arising out of “indescribable agony of being trapped between two sexes of a male in female body or a female in a male body” but the legal consequences of these choices open up multiple possibilities.

The liability (criminal in this case) of Dera workers and its doctors opens up the possibility of trans* persons asking for damages and compensation against genital alterations. One fact that the judgment does get right is that the sex reassignment surgeries for trans* individuals (consensual or otherwise) often gets performed by quacks and surgeons who have almost little to no experience in performing such surgeries. Bringing medical negligence against the surgeons for genital alterations is in fact quite unexplored. Amritananda Chakravorty, working with Lawyers Collective in New Delhi notes how difficult it becomes to sustain such claims. She says that lack of proper government guidelines for sex reassignment surgeries always becomes a defense for surgeons and doctors to escape any kind of liability. She says that in most of these surgeries, getting hold of all the documents becomes a problem and in some cases families are not ready to bring these cases before the courts. In lot of cases, the consent of trans* individuals becomes quite manufactured at the promise of safe and successful surgeries.

Recently, in Germany, Michaela “Micha” Raab successfully won a case against the Erlangen University Clinic for non-consensual intersex genital mutilation treatment. At the age of 20 Micha had consulted doctors for their lack of period and breast growth. The doctors put them on a female hormone therapy and operated on them for ‘oversized clitoris.’ This treatment caused bone pain, migraines, vision ailments and depression. It was only years later that Micha realized that they had XY chromosomes and were genetically male. Micha claimed that the doctors did not reveal this and that they might have wanted to live as a man. The court ruled out the liability of the surgeons arguing that lack of disclosure of diagnosis wasn’t the surgeon’s fault but held the Clinic responsible for damages and compensation. In another case from Germany, a claim brought 20 years after the surgery was performed which erroneously marked the complainant as a man, was successful in claiming damages against the doctor for illegal medical interference. Similarly in the case of M.C. v. Aaronson in the US, a suit brought by M.C., by and through his adoptive parents, in which under the custody of the South Carolina Department of Social Services (SCDSS), sex assignment surgery was performed on M.C. to make his body appear female. M.C. was born with Ovotesticular DSD, i.e., with internal reproductive organs of both male and female sexes. Later in his life however, M.C. started identifying himself as a boy. The District Court for the District of South Carolina charged the doctors with medical malpractice for failing to obtain adequate informed consent before performing the surgery. However, the Court of Appeals for the Fourth Circuit reversed the lower court’s decision noting that the doctors who performed the surgeries in the year that it was performed did not have a fair warning from then existing precedent that performance of such a surgery would be a violation of constitutional right.

In the Hans Raj case, the court also establishes that there is no bar of limitation for registering a complaint for commission of cognizable offence, which in this case, is of grievous hurt. Although all these cases are of non-consensual medical interventions, the medical intervention on trans* bodies in India has very troubling consequences. There is a very poignant moment in the play ‘Color of Trans 2.0’ which depicts series of life incidents of the performers. In one of the narratives, Angel Glady shares her experience of getting a sex re-assignment surgery. She recounts how nervous but excited she was to be finally getting the surgery. Her appointment gets repeatedly delayed by the surgeon and when she wakes up after the surgery and finally comes in terms with the operation, she thanks the surgeon for having given her a new body and for having given her new hope. But at the same moment she breaks down in a fit of anger and shouts that she also thanks the surgeon for making her urinate like ‘this’ and rips open a pack of water against her thighs which shoots the jet of water against her face while she tries to cover her face with the other hand, evidently indicating how horribly wrong the surgery had gone.

The medical interventions onto trans* bodies have been severely criticized while talking about non-consensual intersex individuals. The surgery done on intersex individuals generally deny diverse sex characteristics among humans and tries to fit the body into male-female binary. The Sex Determination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act of 2013 in Australia includes remedies and redressal for involuntary or coerced [PDF] sterilization of intersex people. In India, the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003 has no way of covering people who could argue for violation of their bodies through surgical interventions as it only talks about the illegality of determining the sex of the unborn child.

The point here is that consensual cases of genital alterations have no way of finding their ways to the court of law apart from medical negligence. Sex Reassignment surgeries as a whole get covered with the discourse of absolute necessity of individuals trying to escape their ‘dysphoria’ or to attain the sex and genders of their choice. The path between the surgery and the purpose for which an individual underwent that surgery somewhere gets lost. With the legal obsession of granting ‘third gender’ rights, there is almost no way of talking about people who undergo surgeries without any intention to attain other genders at all. Nonetheless, the Hans Raj case definitely would open channels to claim damages and/or compensation for SRS gone wrong and genital alteration surgeries.

Akhil Kang is a graduate from NALSAR University of Law, Hyderabad in 2015. He is currently based in New Delhi and works on issues related to caste of gender, sexuality.

Suggested citation: Akhil Kang, Sustaining Trans* individuals Claim to Medical Negligence , JURIST – Professional Commentary, Mar. 8, 2016, http://jurist.org/hotline/2016/03/akhil-kang-transgender-rights.php.