Indian Court Decides In Favor of Informed Consent Rights for Intersex People
Source: Human Rights Watch
April 29, 2019
A court in the Indian state of Tamil Nadu has ordered the local government to prohibit medically unnecessary “normalizing” surgeries on children born with intersex variations until the patients themselves can consent.
“Intersex” refers to the estimated 1.7% of the population born with bodily traits that do not fit conventional expectations of female or male. Their sex characteristics – such as chromosomes, gonads, or genitals – differ from social expectations. Except in very rare cases when the child cannot urinate or internal organs are exposed, these variations are medically benign, natural variations of human anatomy.
Yet in the 1960s surgeons in the United States popularized “normalizing” cosmetic operations, such as procedures to reduce the size of the clitoris. This approach has been effectively exported globally.
These procedures are not designed to treat a medical problem and there is no evidence that such operations help children “fit in” or “function in society,” which some surgeons say is their aim. The operations do, however, carry high risks of scarring, loss of sexual sensation, incontinence, sterilization, and psychological trauma
For decades, intersex patients and their advocates have asked governments and the medical community to develop standards to defer elective procedures until patients can decide for themselves – exactly what Justice GR Swaminathan delivered in his judgment on April 22.
The judgment cites India’s landmark 2014 Supreme Court decision upholding the rights of transgender and gender-diverse people. It also refers to Malta’s 2015 gender identity and sex characteristics law, which enshrined rights-based legal recognition for transgender people and banned unnecessary surgery on intersex children, the World Health Organization, which has urged an end to these operations, and the Indian intersex advocate Gopi Shankar.
Shankar wrote to India’s National Human Rights Commission and received a response from the Ministry of Health in 2017, which the judgment cites in full.
The ministry’s response features a subtle but important obfuscation. Officials deny Shankar’s claim that non-consensual medically unnecessary surgeries are being carried out, claiming that “any kind of invasive medical procedure, including sex reassignment surgeries, are done only after thorough assessment of the patient,” and “only after taking a written consent of the patient/guardian.”
But as I documented in my research for Human Rights Watch on the issue in the US, parents sometimes give their consent based on only limited or biased information from doctors. And a parent’s consent to medically unnecessary major surgery on a child too young to speak is hardly sufficient for protecting children from the risks of these surgeries. Scholarly research on the issue has found, similarly, that medical teams often coerce consent from parents by presenting “normalizing” surgeries as the preferred option, or using scare tactics such as suicide fears based on irrelevant data.
In recent years, national, regional, and international health and human rights bodies have increasingly called for the protection of intersex children’s informed consent rights. “The consent of the parent cannot be considered as the consent of the child,” Justice Swaminathan’s ruling stated plainly.
In recent years, national, regional, and international health and human rights bodies have increasingly called for the protection of intersex children’s informed consent rights. In 2015, 12 United Nations agencies released a joint statement referencing “unnecessary surgery and treatment on intersex children without their consent.” In 2017 the Parliamentary Assembly of the Council of Europe passed a resolution calling for protecting intersex children from unnecessary and irreversible surgery without their consent, and in 2019 the European Parliament complemented that call with its own resolution.
Physicians for Human Rights, Amnesty International, and intersex-led organizations worldwide have called for legal protections to ensure that such surgery is conducted only when the patients themselves consent. UN human rights committees, which oversee international treaties, have condemned the practice of non-consensual “normalizing” operations on intersex children 40 times since 2011.
Justice Swaminathan’s words will ring true for intersex activists, patient advocate physicians, and parents around the world who have shown through their own experience that peer support and honest conversations are the best form of care. And as he said, “The parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame.”
The Health and Family Welfare Department of Tamil Nadu has eight weeks to respond with its policy protecting the informed consent rights of children born with intersex traits. They would do right to consult with intersex advocacy groups and follow international human rights standards in crafting their policy and set an example the rest of India should follow. Everyone has the right to informed consent – even those who were born with bodies that are slightly different.
Indiana hate crimes bill signed into law
April 03, 2019
The bill allows judges to impose harsher sentences for criminals who victimize others based on listed traits.
It has been controversial because it was significantly amended from the original bill. Originally, the bill was written to extend protections to people based on age, gender identity and sex. However, the bill that was passed only includes color, creed, disability, national origin, race, religion and sexual orientation in the list of protected traits.
According to the fact sheet released by the Indiana Senate Republicans, judges are not limited to the list in determining sentencing: “This law is carefully worded to make sure that courts can punish any bias crime committed against a person based on any trait they may have, including gender, even if that trait is not specifically listed in the law.”
Senate minority leader Tim Lanane tweeted in response to the bill: “The bias crimes amendment in SB 198 leaves out protections for age, gender and gender identity, but is being called ‘inclusive’ by the supermajority. I wish I could tell you this is an April Fool’s Day jokes, but sadly it’s not.”
Previously, Indiana was one of five states without a hate crimes bill.
Supreme Court rejects Hawaii B&B owner’s appeal in lesbian discrimination lawsuit
March 19, 2019
The US Supreme Court on Monday declined to hear an appeal from a Hawaii bed and breakfast owner who turned away a lesbian couple due to her Christian beliefs, thus leaving open the question of what protections are afforded public business owners who act in violation of anti-discrimination laws but in accordance with closely held religious beliefs.
Phyllis Young, owner of Aloha Bed & Breakfast, appealed the Intermediate Court of Appeals of Hawaii’s decision, which found that Young violated Hawaii’s anti-discrimination law in denying service to Diane Cervilli and Taeko Bufford based on Catholic beliefs.
Young rents three bedrooms as a bed and breakfast in her family home. According to her petition for certiorari, Young welcomes all customers, so long as they abide by the house rules, including the rule that no romantic couples “share a bedroom unless they are a married man and woman.”
Young’s argument was largely premised on Hawaii’s “Mrs. Murphy exemption,” which “provides that if a dwelling has four or fewer rental units and the owner lives in one of those units, that home is exempt from the FHA.” According to the petition, “Mrs. Young believed, in good faith, that Hawai’i protected her right to practice her faith at home because Hawai’i’s statutory ‘Mrs. Murphy exemption’ facially protects from state interference those who rent a few rooms in their dwelling.”
The court’s rejection comes on the heels of the 2018 Colorado baker case, where the court ruled in favor of the baker, who denied service to a gay couple, but only for the reason that the Colorado Civil Rights Commission showed hostility toward certain religious practices. In denying Young’s petition, the court has thus far declined to address the more broad question of whether owners of businesses open to the public may claim religious exemptions from anti-discrimination laws.
Supreme Court rules certain immigrants do not have right to bond hearing
March 19, 2019
The US Supreme Court ruled Tuesday in Nielsen v. Preap that immigrants who have committed certain crimes are not entitled to a bond hearing and once detained can be held in federal custody until their removal proceedings are resolved.
In an opinion by Justice Samuel Alito, the Supreme Court overturned two Ninth Circuit decisions (Preap v. Johnson and Khoury v. Asher) that held that aliens who were not immediately detained upon release from criminal custody were entitled to a bond hearing.
This class action suit arose under 8 USC § 1226, known as the “mandatory detention provision” of the Immigration and Nationality Act. This provision, in relevant part, mandates that “the Attorney General shall take into custody any alien who … is deportable by reason of having committed any offense covered in section … when the alien is released.”
Plaintiffs, mostly green-card holders, argue that, because they were not immediately taken into custody upon completing their sentences, they are not covered by the mandatory detention provision. Many of the plaintiffs lived and worked in the US for years upon release and argue that they should be considered for bond release, rather than detention, while their removal orders are being processed.
The court’s majority disagreed, finding more persuasive the Trump administration’s argument that the government’s duty to detain aliens who have committed certain crimes is not abrogated if the government fails to detain the individual immediately upon release. In closing his opinion, Alito emphasized that the court did not consider the constitutionality of the mandatory detention provision because that question was not brought by the plaintiffs in this case.
In a brief concurrence joined by Justice Neil Gorsuch, Justice Clarence Thomas wrote that various statutes limit judicial review in this cases, noting that the Districts Courts likely did not have jurisdiction.
Justice Stephen Breyer, in a dissent joined by Justices Elena Kagan, Ruth Bader Ginsberg and Sonia Sotomayor, focused primarily on the statute’s text, finding that:
The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordinary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation all argue convincingly to the contrary.
In announcing his dissent, Breyer also cited concerns with the powers the majority’s opinion grants to the government: “It is a power to detain persons who committed a minor crime many years before. And it is a power to hold those persons, perhaps for many months, without any opportunity to obtain bail.”
Federal judge rules San Francisco cash bail system violates rights of poor defendants
March 05, 2019
-United States. –
A federal judge ruled Monday that San Francisco’s bail schedule violates poor defendants’ rights without protecting the public.
San Francisco’s bail schedule sets bail amounts for each crime and requires a defendant to pay that amount to be released after arrest, even if no charges have been filed. The lead plaintiff in this case was held in prison on a $30,000 bail, which she could not afford. She was released two days later but was fired from her job at the Oakland airport due to her absence.
The judge, after hearing arguments from opposing sides, said that she would issue an injunction requiring San Francisco to adopt new rules for freeing defendants after their arrest. She held that San Francisco’s current bail schedule “merely provides a ‘Get Out of Jail’ card for anyone with sufficient means to afford it.”
Bail agents have argued that the current bail schedule protects the public and ensures that defendants will show up to their hearings. However, Gonzalez Rogers did not find from the record that the current bail schedule considers either of these goals, and that a system which assessed risk on an individual level would serve these goals while treating rich and poor defendants the same.
The State of California is set to vote in November 2020 on whether to abolish cash bail statewide and allow a judge to decide whether an individual defendant can safely be released while they await trial. San Francisco will effectively become a test case for abolishing cash bail if Monday’s ruling stands.
Taiwan proposes same-sex marriage Bill
February 22, 2019
The executive body of the Republic of China (Taiwan) submitted a bill to the legislature Thursday to legally recognize same-sex marriage.
In astatement, Premier Su Tseng-chang acknowledged the national referendum last year, where the majority of the island nation’s populace voted against recognizing same-sex marriage. Su also maintained the Executive’s Yuan’s position that the decision of the Constitutional Court stands, and carries the same weight as the nation’s constitution, itself. Despite this acknowledgement, Su stated that it is not the Executive Yuan’s position that the the country’s Civil Code should be amended.
In May 2017 the Constitutional Court of the Republic of China ruled, in its Opinion No. 748, that Articles 972, 973, 980 and 982 under Chapter II of the Civil Code pertaining to marriage was unconstitutional. Specifically, the civil code provisions referred to above restrict marriages to those between a man and a woman. The court based its analysis on Articles 7 and 22 of the Constitution, which broadly guarantees equal protection to all citizens under the law. The Constitutional Court noted that the government has been unsuccessful with producing legislation that would extend recognition marriages to same-sex couples. The Judicial Yuan required the government to amend the Civil Code within two years of its decision. As of May 25, 2019, the deadline for the Legislature would have expired. Should the Legislature fail to meet this deadline, same-sex couples may proceed with their marriage unions, regardless of whether the Civil Code has been amended.
Officially, the bill reflects the Executive Yuan’s position that the Constitutional Court’s opinion should be implemented. Despite no proposed amendments to the existing Civil Code, the draft of the bill addresses what defines a same-sex union, eligibility criteria, as well as provisions regarding property, custody, conflict, and dissolution. Interestingly, the bill designates same-sex unions as “第二條關係”, which roughly translates to a “second relationship.” It appears the bill intends to circumvent the Executive Yuan’s not amending of the Civil Code by stating that the marriage provisions under the Civil Code shall apply to the parties specified under this bill.
Vermont lawmakers approve abortion rights Bill
February 22, 2019
H.57 passed late Thursday evening by a 106-36 vote, following Wednesday’s six-hour debate on the proposal of the bill.
Under the bill, women in Vermont would have access to abortions without any restrictions. The bill prohibits government interference and the prosecution of anyone who induces, performs or attempts to perform an abortion. The bill also states that:
Every individual has the fundamental right to choose or refuse contraception or sterilization. Every individual who becomes pregnant has the fundamental right to choose to carry a pregnancy to term, give birth to a child, or to have an abortion. A fertilized egg, embryo, or fetus shall not have independent rights under Vermont law.
H.57 is expected to head to the Senate in mid-March.