Derechos Humanos / Human Rights

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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 RightsAmnesty 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.


Derecho Constitucional / Constitucional Law

Posted on Actualizado enn

India Supreme Court to consider plea on women in mosques  

Source: Jurist

April 17, 2019

India’s Supreme Court agreed on Tuesday to hear a petition from a Muslim couple to allow entry of women to mosques without restrictions, and issued a notice to the government.

Yasmeen Zuber Ahmad Peerzade and her husband Zuber Ahmad Nazir Ahmad Peerzade said the restrictions on the entry of women into certain mosques should be set aside as such “practices of prohibition” violate Articles 14 (equality), 15 (non-discrimination), 21 (life and liberty), 25 (religious freedom) and 29 (protection of minorities) of the constitution.

At present, women are allowed to offer prayers at mosques under the Jamaat-e-Islami and Mujahid denominations but are barred from mosques under the predominant Sunni faction. “The Quran does not differentiate between man and woman. It speaks only about the faithful. But Islam has become a religion in which women are being oppressed,” said in the petition.

Justices S.A. Bobde and S. Abdul Nazeer were initially averse to issuing notices since mosques are not under the control of the state. But the court later relented in the light of last year’s ruling in the Sabarimala case, which allowed women of all ages to enter the Kerala shrine, lifting the ban on those of childbearing age.

Derechos Humanos / Human Rights

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India court upholds transgender marriage rights            

Source: Jurist

April 24, 2019

A court in the Indian state of Tamil Nadu ruled Monday that a marriage between a cisgender man and a transgender woman is valid. The Madurai-based bench of the Madras High Court held the term “bride,” as used in Section 5 of India’s Hindu Marriage Act, to be inclusive of transgender women.

State registration authorities had refused to recognize and register the marriage of a cisgender man and a transgender woman, arguing that a transgender woman cannot be a “bride” under the Hindu Marriage Act. The couple approached the Madras High Court, claiming a violation of fundamental rights guaranteed by Article 14 of the Constitution of India.

Judge G R Swaminathan, while allowing the couple’s writ petition, observed that transgender rights are a part of the Indian constitution. Reaffirming the constitutional principles recognized by the Supreme Court of India in National Legal Services Authority (NALSA) v. Union of India, he said, “Sex and gender are not one and the same. A person’s sex is biologically determined at the time of birth. Not so in the case of gender. The Supreme Court has held that Article 14 of the Constitution of India which affirms that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India would apply to transgender individuals.”

“Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before the law and equal protection of the law and violates Article 14 of the Constitution of India,” the judgment adds. The court was also of the view that Article 19(1)(a) and Article 21 of the Constitution should be expansively interpreted to encompass gender identity. Article 19(1)(a) aims to ensure the freedom of speech and expression while Article 21 guarantees the “protection of life and personal liberty.”

The court ruled that authorities could not question an individual’s “personal autonomy” to “express her gender identity.” “It is not for the State authorities to question this self-determination,” it said.

Derecho Ambiental / Environmental Law

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India environment court suspends plan to expand coal-based power plant

Source: Jurist

March 18, 2019

 India’s environment tribunal, the National Green Tribunal (NGT), has suspended an environmental clearance issued by the government of the state of Karnataka for the expansion of an existing coal-based power plant in Udupi district. The state government had issued its environmental clearance for the proposed expansion in 2017.

Friday’s decision saw the NGT take cognizance of the adverse findings of a group of experts on the environmental situation in the region. It was observed that the mismanagement of the environment had contaminated the soil, air and both the surface water and groundwater reserves in the power plant’s vicinity.

The New Delhi-based principal bench of the tribunal ordered the operator of the power plant to pay a fine of 50 million Indian rupees to the Central Pollution Control Board as an “interim environmental compensation” within a month. In doing so, the tribunal exercised powers vested in it by Section 20 of the National Green Tribunal Act, which mandates that the tribunal apply the “polluter pays” principle, among other environmental law doctrines.

The bench also ordered a committee comprising senior scientists to assess the environmental damage caused due to the operation of the power plant.

Derecho Ambiental / Environmental Law

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India environment tribunal penalizes state government for damage to lakes

Source: Jurist

December 07, 2018

The National Green Tribunal (NGT), a judicial body that adjudicates environmental matters in India, on Friday imposed a penalty of 500 million Indian Rupees (approximately USD $7 million) on the state government of Karnataka for failing to protect lakes in its capital city of Bangalore.

The tribunal also directed the government to deposit 5 billion Indian Rupees (approximately USD $70 million) in an escrow account to facilitate environmental regeneration in the city’s lakes, as per the “polluter pays” principle.

Finding that the government has been negligent in protecting the city’s lakes and in keeping storm-water drains free from encroachment by unauthorized commercial and residential buildings, the NGT directed it to come up with an “action plan” to mitigate the damage to the lakes and tackle the situation within a month.

A retired Supreme Court judge, Santosh Hegde, has been appointed to lead a committee tasked with ensuring governmental adherence to the timelines of this action plan. It will also set up a website and garner complaints and suggestions from citizens. The state government is to issue a 1 billion Indian Rupee (approximately USD $14 million) performance guarantee, in case it fails to implement the action plan.

Polluted lakes frothing with toxic foam have been a concern in Bangalore. Bellandur lake, one of the city’s most polluted, has caught fire twice in two years and is a health hazard for residents. A report published by a committee of Karnataka legislators has found that of the 1,547 lakes in the city, only 158 lakes have not been encroached upon by government agencies and private builders.

Derecho Internacional / International Law

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India y PakistanIs Unilateral Revocation of the Indus Water Treaty Permissible Under International Law?        

Source: Jurist

November 21, 2018

-India and Pakistan-

Amid the perpetual political tension between India and Pakistan, the Indus water treaty (IWT) is perhaps the only international instrument which has proactively engaged both the countries in bilateral relationship. In fact, the treaty has been the most significant confidence building measure between India and Pakistan since 1960. Despite multiple wars and hostilities between the two countries, the treaty remained undisturbed and survived for more than five decades since its conclusion. After the Uri attack in 2016, India hinted towards unilaterally scraping the IWT. This has been objected to by Pakistan which has warned that any attempts by India to unilaterally revoke the IWT will result in the flagrant violation of its international treaty obligations and shall be treated as an “act of aggression” under international law. The present piece is an attempt to explore whether unilateral withdrawal by India from IWT violates the international law in general and amounts to “act of aggression” in particular as argued by Pakistan. Leer el resto de esta entrada »

Derechos Humanos / Human Rights

Posted on Actualizado enn

lgtbiIndia court legalises gay sex in landmark ruling              

Source: BBC News

September 06, 2018

In a historic decision, India’s Supreme Court has ruled that gay sex is no longer a criminal offence.

The ruling overturns a 2013 judgement that upheld a colonial-era law, known as section 377, under which gay sex is categorised as an “unnatural offence”.

The court has now ruled discrimination on the basis of sexual orientation is a fundamental violation of rights. Leer el resto de esta entrada »