IN THE HIGH COURT OF DELHI AT NEW DELHI CIVIL ORIGINAL JURISDICTION CIVIL WRIT PETITION NO. OF 2021

IN THE MATTER OF A PUBLIC INTEREST LITIGATION

IN THE MATTER OF:

Srishti Educational Research Foundation …Petitioner

Versus

Govt. of NCT of Delhi & Ors. ….Respondents

INDEX

S.NO. PARTICULARS PAGES COURT FEE

1. Notice of Motion 1

2. Urgent Application 2

3. Memo of parties 3 – 4

4. Synopsis and List of dates 5 – 11

5. Writ Petition with Affidavit 12 – 24

6. Annexure P-1 25

A true copy of Resolution.

7. Annexure P-2 26 – 54

A true copy of the landmark judgement passed by Hon’ble Madras High Court on 22.04.2019.

8. Annexure P-3 55 – 56

A true copy of the Government Order dated 28.08.2019 passed by the Govt. of . 9. Annexure P-4 57 – 60

A true copy of the order dated 13.01.2021 of the DCPCR

10. Annexure P-5 61

A true copy of the news report published by the Times of on 04.06.2021

11. Application seeking exemption from filing 62 – 66 duly affirmed Affidavit

12. Vakalatnama 67

13. Proof of Advance Service

Filed Through:

Robin Raju, Yash Prakash & Deepa Joseph Advocates 27-B, Pocket A-3, Kalkaji Ext. New Delhi-110019

New Delhi, Date: 15/08/2021

1

IN THE HIGH COURT OF DELHI AT NEW DELHI CIVIL ORIGINAL JURISDICTION CIVIL WRIT PETITION NO. OF 2021

IN THE MATTER OF A PUBLIC INTEREST LITIGATION

IN THE MATTER OF:

Srishti Madurai Educational Research Foundation …Petitioner

Versus

Govt. of NCT of Delhi& Ors. ..Respondents

NOTICE OF MOTION TAKE NOTICE that the accompanying petition will be listed before the Court on /08/2021 at 10:30 O’clock in the forenoon, or soon thereafter as may be convenient to the Court.

Filed Through:

Robin Raju, Yash Prakash & Deepa Joseph 27-B, Pocket A-3 Kalkaji Ext. New Delhi-110019

New Delhi, Date: 15/08/2021

2 IN THE HIGH COURT OF DELHI AT NEW DELHI CIVIL ORIGINAL JURISDICTION CIVIL WRIT PETITION NO. OF 2021

IN THE MATTER OF PUBLIC INTEREST LITIGATION To

The Deputy Registrar, High Court of Delhi, New Delhi. IN THE MATTER OF:

Srishti Madurai Educational Research Foundation …Petitioner

Versus

Govt. of NCT of Delhi & Ors. ….Respondent

URGENT APPLICATION

Sir,

Will you be kindly treat this accompanying application as an urgent one in accordance with High Court Rules and Order. The grounds of urgency are as per the facts stated in the petition.

Filed Through:

Robin Raju, Yash Prakash & Deepa Joseph Advocates 27-B, Pocket A-3, Kalkaji Ext. New Delhi-110019

New Delhi, Date: 15/08/2021

3

IN THE HIGH COURT OF DELHI AT NEW DELHI CIVIL ORIGINAL JURISDICTION CIVIL WRIT PETITION NO. OF 2021

IN THE MATTER OF PUBLIC INTEREST LITIGATION

IN THE MATTER OF:

Srishti Madurai Educational Research Foundation …Petitioner

Versus

Govt. of NCT of Delhi& Ors. …..Respondent

MEMO OF PARTIES

IN THE MATTER OF:

Srishti Madurai Educational Research Foundation Through its Managing Trustee Having its Registered office at Sri Sarada Dham Plot No.2, 4/413-A,Bama Nagar, 2nd Street Ext. P and T Nagar, Madurai Tamil Nadu-625017

…Petitioner Versus

1. Govt. Of NCT of Delhi Through its Chief Secretary Delhi Secretariat, IP Estate,

4 New Delhi-110002

2. Ministry of Health and Family Welfare Through its Secretary 9th Level, A-Wing, I.P. Extension Delhi Secretariat, Delhi— 110001

3. The Delhi Commission for Protection of Child Rights (DCPCR) Through its Chairperson 5th Floor,ISBT Building, Kashmere Gate, New Delhi-110006

...Respondents

Filed Through:

Robin Raju Yash Prakash & Deepa Joseph 27-B, Pocket A-3, Kalkaji Ext., New Delhi-110019

5

IN THE HIGH COURT OF DELHI AT NEW DELHI CIVIL ORIGINAL JURISDICTION CIVIL WRIT PETITION NO.OF 2021

IN THE MATTER OF PUBLIC INTEREST LITIGATION

IN THE MATTER OF:

Srishti Madurai Educational Research Foundation …Petitioner

Versus

Govt. of NCT of Delhi& Ors. ….Respondents

SYNOPSIS AND LIST OF DATES

This Civil Writ Petition filed by the Petitioner is in the nature of

Public Interest litigation for a direction to the Respondent no. 1 and 2 to implement the opinion of Respondent No.3 i.e. Delhi

Commission for Protection of Child Rights(DCPCR), Govt. of

NCT of Delhi and declare a ban on medically unnecessary, sex– selective surgeries on infants and children except in cases of life – threatening situations in Delhi.

,,

The Petitioner herein is a Non-Government funded Trust, having a Pan India presence today and it is represented by an

Intersex person himself. The Petitioner organization was formed in 2011 by a handful of student volunteer team inspired by

6 each other in Madurai. This student’s forum for non-binary,

Genderqueer & Intersex people in Madurai grew into prominence over the years. The organization in the last few years has played a key role to highlight the pathos of LGBTQIA

Community to the high echelons of administration. The organization had initiated some path breaking campaigns such as Justice for Santhi Campaign to highlight the faced by Athletes with Intersex traits. The petitioner has been at the forefront in spreading awareness about the necessity to ban sex selective surgeries on infants born with

Intersex traits since the year 2016. The Petitioner organization was also part of the Madrid Summit 2017 and World Pride,

Madrid, Spain. The organization has also been invited to other important regional conferences on the theme of Intersex Human

Rights.

The instant petition also highlights the need to ban sex selective surgeries on infants born with Intersex traits. But before the petition delves into the core issue, it is imperative to state in a brief about the Intersex People. The people with intersex traits are often wrongly identified as , hijras or . Intersex people are born with reproductive or sexual anatomy that does not fit the typical definitions of female or male. Transgender or

7 people, on the other hand, are born with typical male or female anatomies but feel they are born into the wrong gender.

The issue of banning medically unnecessary, sex selective surgeries on intersex infants and children though may not be trending news or an issue that gains prominence in front pages of newspapers but it is indeed an issue that exists and is prevalent in our society. The cases of violations in India used to go unnoticed in the past, but nowadays due to the strong influence of social media, such news are being highlighted in the public domain.

The Hon’ble Supreme Court in National Legal Services

Authority(NLSA) v. Union of India &Ors (W.P(C)400 of 2012) on

15.04.2014,categorically stated that no one shall be forced to undergo medical procedures, including sex reassignment surgeries, sterilization or hormonal therapy, as a requirement for legal recognition of their .

It is further pertinent to mention that the Hon’ble Madras High

Court in WP(MD)No. 4125/2019 and 3220/2019, directed the

Government of Tamil Nadu to issue a Government Order enshrining the aforesaid mandate of the Hon’be Supreme Court so as to effectively ban sex reassignment surgeries on intersex infants and children. And pursuant to this direction of the

Hon’ble High Court of Madras, the Government of Tamil Nadu

8 issued an Order Vide Letter G.O. (Ms.)No.355, decided to ban sex reassignment surgeries on intersex infants and children except on life threatening situations and orders accordingly.

The State of Tamil Nadu thus became the first in India and Asia and 2nd globally, to ban sex selective surgeries on intersex infants and children. It is pertinent to mention that Petitioner organization was entrusted the mantle to support the

Government in drafting the G.O.

That subsequent to the direction of the State of Tamil Nadu, Dr.

Satendra Singh, Air Cmde (Dr.) Sanjay Sharma and Dr. Aqsa

Shaikh submitted a plea before the Respondent No.3. In their plea they highlighted instances wherein intersex people are treated as disabled, and hence are approached through a medical lens, reducing intersex people to an impairment leading to medical interventions that can lead to long term impairments and requiring lifetime medical care. It was also highlighted in the plea that most of the times these surgeries are conducted without prior free and fully informed autonomous consent.

The Respondent no.3, after appreciating the plea, appointed

Ms. Anjali Gopalan and Mx.Gopi Shankar Madurai, the founder of the petitioner organization, as its advisors to take a considered decision on the plea filed. The Respondent No. 3 after taking into account the response of the Delhi Medical

9 Council, Department of Health and Family Welfare, Govt. of

NCT of Delhi and Department of Social Welfare, Govt. of NCT of

Delhi along with organisations and experts in the domain, including the submissions of the afore-named 2 advisors, came to the considered opinion on 13.01.2021, that the Government of Delhi should declare a ban on medically unnecessary, sex- selective surgeries on intersex infants and children except in cases of life threatening situations.

The Petitioner organization is constrained to move this Hon’ble

Court as the Respondent no. 1 and 2 are yet to take a decision on the issue. The petitioner organization believes that a decision can only be expected if an order similar to the Hon’ble

Madras High Court is passed by this Hon’ble Court.

The issue herein is of extreme significance as it pertains to human rights and bodily integrity of a human being, and it is only if a direction is passed by this Hon’ble Court that an urgent decision will be passed by the Respondent no.1 and 2.

Hence the present Petition.

15.04.2014 The Hon’ble Supreme Court in NLSA v Union of

India &Ors. ( W.P.(C) 400 of 2012),stated that no

one shall be forced to undergo medical

10 procedures, including sex reassignment surgeries,

sterilization or hormonal therapy, as a

requirement for legal recognition of their gender

identity.

2016 The Petitioner organisation has been at the

forefront in spreading awareness about the

necessity to ban sex selective surgeries on infants

with intersex traits.

22.04.2019 The Hon’ble Madras High Court passed a

landmark judgement directing the Govt. of Tamil

Nadu to effectively ban sex reassignment

surgeries on intersex infants and children.

28.08.2019 The Govt. of Tamil Nadu vide an order Letter G.O.

(MS.) No. 355, decided to ban sex reassignment

surgeries on intersex infants and children.

13.01.2021 The Respondent No. 3 gave a considered opinion

that the Respondent No.1 and 2 should declare a

ban on medically unnecessary, sex-selective

surgeries on intersex infants and children except

in cases of life threatening situations. But no

decision has been taken on the said opinion of

Respondent No.3 till date.

11 04.06.2021 News report published by titled

“Intersex people with symptoms reluctant to seek

medical aid” due to their prior experience of

medical violence and trauma.

15.08.2021 This writ petition is filed.

12

IN THE HIGH COURT OF DELHI AT NEW DELHI CIVIL ORIGINAL JURISDICTION CIVIL WRIT PETITION NO. OF 2021 IN THE MATTER OF PUBLIC INTEREST LITIGATION

IN THE MATTER OF:

Srishti Madurai Educational Research Foundation Through its Managing Trustee Mx(Mecks). Gopi Shankar Having its registered office at Sri Sarada Dham Plot No.2, 4/413-A,Bama Nagar, 2nd Street Ext. P and T Nagar, Madurai Tamil Nadu-625017

…Petitioner

Versus

1. Govt. Of NCT of Delhi. Through its Chief Secretary Delhi Secretariat, IP Estate, New Delhi-110002

2. Ministry of Health and Family Welfare Through its Secretary 9th Level, A-Wing, I.P. Extension Delhi Secretariat, Delhi— 110001

3. The Delhi Commission for

13 Protection of Child Rights (DCPCR) Through its Chairperson 5th Floor,ISBT Building, Kashmere Gate, New Delhi-110006 ...Respondents

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION

OF INDIA, INTER-ALIA SEEKING A WRIT OF MANDAMUS TO

DIRECT THE RESPONDENT No. 1 AND 2 INTER-ALIA TO

IMPLEMENT THE OPINION OF RESPONDENT NO.3, DELHI

COMMISSION FOR PROTECTION OF CHILD RIGHTS(DCPCR),

AND DECLARE A BAN ON MEDICALLY UNNECESSARY, SEX

SELECTIVE SURGERIES ON INTERSEX INFANTS AND

CHILDREN.

To The Hon’ble Chief Justice and His Companion Justices of the Hon’ble High Court of Delhi at New Delhi The humble petition of the Petitioner above named MOST RESPECTFULLY SHOWETH:

This writ petition is being filed by the petitioner in public interest to pass a Writ in the nature of Mandamus seeking a writ of mandamus, inter-alia, to direct the respondent no.1 and 2 to implement the opinion of Respondent No.3 i.e. Delhi Commission for Protection of Child Rights(DCPCR), Govt. of

14 NCT of Delhi and declare a ban on medically unnecessary, sex- selective surgeries on intersex infants and children.

Facts of the case:

1. The Petitioner herein is a Non-Governmental Organisation

Trust, having a Pan India presence today. The Petitioner

organization was formed in 2011 by a handful of student

volunteer team inspired by each other in Madurai. This

students forum for non-binary, Genderqueer& Intersex people

in Madurai grew into prominence over the years. The Petitioner

has no personal interest in the litigation and that the petition is

not guided by self-gain or for gain of any other

person/institution/body and that there is no motive other than

of public interest in filing the writ petition. So the petitioner

herein has preferred the present petition. The present petition

is filed by the Petitioner Trust through its Managing Trustee. A

true copy of the Resolution authorizing the Managing Trustee of

the petitioner to file the present case on its behalf is marked as

ANNEXURE P-1 and annexed herewith at Page No. 25.

2. The issue raised in the petition is based on the information

received from volunteers of the petitioner organization who have

worked on the issue and have also been pivotal in compilation

of materials connected with the issue raised.

15 3. The petition intends to benefit people residing in Delhi. The

issue is of wide benefit and is also of significance to the Intersex

community across the country.

4. It is submitted that the relief sought in the petition is for a

direction to the respondents arrayed as party in the petition

and is not against any specific institution /person/body.

5. It is again re-iterated that the petitioner is an NGO Trust,

registered in Madurai, but is working for the Intersex

community all over India. Srishti Madurai Educational

Research Foundation is an organization that has played a key

role to highlight the pathos of LGBTQIA community to the high

echelons of administration. The Petitioner hereby also

undertakes that it has the means to pay the costs, if

any, imposed by the Court.

6. The Petitioner organisation has done extensive work on issues

pertaining to human rights violations of Intersex people. It is

pertinent to mention herein that the Managing Trustee of the

Petitioner organisation was also appointed as an advisor by

Respondent No.3, so that it could take a considered decision on

the plea filed before it to declare a ban on medically

unnecessary, sex-selective surgeries on intersex infants and

children.

16

7. That the Hon’ble Supreme Court on 15.04.2014, in the matter

titled NLSA v Union of India (W.P.(C) 400 of 2012) had stated

that no one shall be forced to undergo medical procedures,

including sex reassignment surgeries, sterilization or hormonal

therapy, as a requirement for legal recognition of their gender

identity.

8. That the Petitioner organisation has been at the forefront in

spreading awareness about the necessity to ban sex selective

surgeries on infants with intersex traits since the year 2016.

9. That it is pertinent to mention that on 22.04.2019, the Hon’ble

Madras High Court passed a landmark judgement directing the

Govt. of Tamil Nadu to effectively ban sex reassignment

surgeries on intersex infants and children. The true copy of the

landmark judgement is marked as ANNEXURE P-2 and

annexed herewith at Page Nos. 26 to 54.

10. That on 28.08.2019, the Govt. of Tamil Nadu vide and

order Letter G.O. (MS.) No. 355, decided to ban sex

reassignment surgeries on intersex infants and children. The

True copy of the G.O. is marked as ANNEXURE P-3 and

annexed herewith at Page Nos. 55 to 56.

17

11. That thereafter a plea was filed Dr. Satendra Singh, Air

Cmde (Dr.) Sanjay Sharma and Dr. Aqsa Shaikh submitted a

plea before the Respondent No.3, Delhi Commission for

Protection of Child Rights (DCPCR). In their plea they

highlighted instances wherein intersex people are treated as

disabled, and hence are approached through a medical lens,

reducing intersex people to an impairment leading to medical

interventions that can lead to long term impairments and

requiring lifetime medical care. It was also highlighted in the

plea that most of the times these surgeries are conducted

without prior free and fully informed autonomous consent.

12. That the Respondent No.3, on the basis of response of the

Delhi Medical Council, Department of Health and Family

Welfare, Govt. of NCT of Delhi and Department of Social

Welfare, Govt. of NCT of Delhi along with organisations and

experts in the domain, including the submissions of the afore-

named 2 advisors, came to the considered opinion on

13.01.2021, that the Government of Delhi should declare a ban

on medically unnecessary, sex-selective surgeries on intersex

infants and children except in cases of life threatening

situations. A true copy of the order dated 13.01.2021 of the

18 DCPCR is marked as ANNEXURE P-4 and annexed herewith at

Page Nos. 57 to 60.

13. That the copies of the above said order of Respondent No.

3 was sent to the Respondent and Ministry of Health, Govt. of

NCT of Delhi, yet so far the Respondents have not taken any

steps towards implementation of the opinion of Respondent

No.3.

14. That the issue of sex-selective surgeries or medically

unnecessary normalizing surgeries has a long lasting drastic

psychological impact on the minds of intersex people and deters

them from even seeking medical attention in future. This aspect

is proved by recent news reports that examine the reasons

behind reluctance to seek medical help despite having

symptoms of Covid-19 among a significant number of intersex

people. A copy of the news report published in the Times of

India on 04.06.2021, is marked as ANNEXURE P-5 and

annexed herewith at Page No. 61.

15. The Petitioner has previously not filed any Public Interest

Litigation before this Hon’ble Court or any other Court in India.

16. Hence this Public Interest Litigation.

19 GROUNDS

(i) FOR THE REASON that Delhi Commission for Protection of

Child Rights had opined vide order dated 13/01/2021, that

the Respondents should declare a ban on medically

unnecessary, sex selective surgeries on intersex infants and

children, except in cases of life threatening situations.

(ii) FOR THE REASON that the Hon’ble Supreme Court in

NLSA v Union of India & ORs. has held that “none shall be

forced to undergo medical procedures, including sex

reassignment surgeries, sterilization, hormonal therapy, as

a requirement for legal recognition for their gender

identity”.

(iii) FOR THE REASON that Hon’ble Madras High Court had also

directed the Government of Tamil Nadu to issue a

Government Order enshrining the aforesaid mandate of the

Hon’ble Supreme Court so as to effectively ban sex

reassignment surgeries on intersex infants and children.

(iv) FOR THE REASON that Government of Tamil Nadu issued a

Government Order banning sex reassignment surgeries in

intersex infants and children except on life threatening

situations and orders accordingly.

(v) FOR the reason that Delhi Medical Council(DMC) vide letter

DMC/EC/f.2/2/2020/292283 has also agreed that since

20 the differences of sex development /intersex are human

rights issues as it pertains to bodily integrity.

(vi) FOR THE REASON that DMC is also of the opinion that

surgical interventions and gender related medical

interventions should be delayed until the patients can

provide meaningful informed consent/assent to these

interventions.

(vii) FOR THE REASON organizations such as the “Humsafar

Trust” has submitted to the Respondent No.3 that medical

treatments of an intrusive and irreversible nature , if they

lack therapeutic purpose, constitute torture or ill

treatment when administered without the free and

informed consent of the person concerned.

(viii) FOR THE REASON that there are many national and

international precedents that support the argument of how

medically unnecessary surgeries on intersex children

interfere with their right to bodily autonomy, the right of

health and informed consent, children’s right and women’s

right.

(ix) FOR THE REASON that unnecessary medical intervention

are against the human rights of children which has far

reaching consequences on the health and sense of self.

(x) FOR THE REASON that the issue is covered by Article 39(f)

of the Constitution of India.

21 (xi) FOR THE REASON That the Hon’ble Supreme Court has

expanded the scope of Right to Life and Liberty and the

instant comes within the purview of Article 21.

(xii) FOR THE REASON that the inaction on the part of the

Respondent is illegal, and arbitrary, thus violating the

fundamental rights of the Petitioner guaranteed under the

Constitution of India.

(xiii) Any other grounds that may be urged at the time of hearing

with the permission of the Hon’ble Court.

17. That the present petitioner has not filed any other petition in

any High Court or the Supreme Court of India on the subject

matter of the present petition.

18. That the respondent herein is an instrumentality of state

and are functioning with instruction from Delhi hence this

Hon’ble Court is having the jurisdiction to entertain the

present petition.

PRAYER

In the premises aforesaid, it is humbly and respectfully prayed that

this Hon’ble Court may be pleased to issue:

(a) A writ or any order to direct the Respondents to implement the

opinion of Delhi Commission for Protection of Child

Rights(DCPCR) and

22 (b) A writ or any other order declare a ban on medically

unnecessary, sex selective surgeries on intersex infants and

children

(c) A writ or any other order to direct the respondents to frame a

detailed policy or guidelines specifying the conditions when

can the medical surgery on intersex infants and children can

be performed

(d) Pass any other order(s) which this Hon’ble Court may deem fit

in view of the facts and circumstances of the instant case.

FILED THROUGH:

Robin Raju, Yash Prakash & Deepa Joseph Advocates 27-B, Pocket A-3, Kalkaji Ext. New Delhi-110019

Date: 15/08/2021