Intersex Persons Should Not Be Under Transgender Category : Plea In Supreme Court

A three-judge bench of the Supreme Court is set to hear a public interest litigation filed in the Supreme Court seeking various directions and legal reforms concerning the rights of persons with diverse gender identities, gender expressions and sex characteristics, particularly intersex persons.

A bench of Chief Justice Surya Kant and Joymalya Bagchi today directed that the plea be listed before a three-judge bench, with the CJI remarking that it is a “good petition”.

The PIL was filed last year and notice was issued on April 4, 2024. Thereafter, the plea was not listed before the court till today.

The petitioner, an intersex person, has requested the Court to revisit and clarify the use of the terms “sex” and “gender” in law and policy, contending that they are distinct concepts which have been incorrectly used interchangeably by the legislature, executive and judiciary.

The plea challenges certain observations in the Supreme Court's 2014 judgment in National Legal Services Authority v. Union of India, arguing that the judgment treated “sex” and “gender” as the same and used “transgender” as an umbrella category, which has led to policy confusion and ineffective implementation.

“It is respectfully submitted that this Hon'ble Court did not differentiate between 'Sex identity' and 'Gender identity' and used the term 'third gender' which is neither scientific nor legal. This Hon'ble Court has erred in defining every other identity apart from 'Male' and 'Female' as 'Transgender persons' and every transgender as 'third Gender'. This definition is unscientific and illegal as there is difference between 'Sex' and 'Gender'…It is submitted that unless and until this basic difference between 'sex identity' and 'gender identity' is not clarified and recognized by this Hon'ble Court, no effective policies can be made and implemented for the persons belonging to the diverse sex identities”, the plea states.

The petition states that intersex persons, who are born with sex characteristics that do not fit typical binary notions of male or female bodies, face issues that are biological and medical in nature and are distinct from questions of gender identity. It argues that clubbing intersex persons with transgender persons in law and policy ignores these differences and results in inadequate safeguards, particularly for intersex infants and children.

The plea adds, “the difference between 'Sex' and 'Gender' as elaborated above cannot be just discounted as that will lead to further discrimination and derecognition of GIESC (gender identity/expression and sex characteristics) identities in laws and policies made for the benefit of GIESC (gender identity/expression and sex characteristics) identities. In India, most of the activists, bureaucrats, and members from the Hon'ble judiciary use the term "sex and gender" interchangeably which will impact the entire sections of female specific law and their space.”

One of the core concerns raised relates to medical interventions on intersex infants and children. The petitioner has referred to instances where surgeries were carried out on intersex newborns and children, including surgeries reportedly performed on 40 intersex infants and children at the Government Rajaji Hospital in Madurai during 2022-2023.

The plea states that there is no uniform national policy regulating such medical interventions and that hospitals across the country follow arbitrary practices. It seeks a legislative mechanism to regulate medical intervention on intersex infants and children, except in life-threatening situations.

“Generally, the karyotype (general appearance of the complete set of chromosomes in a cell) is considered to assign the sex of a newborn. When there is a discrepancy, various tests are performed, including genetic tests. Often, in such cases no active surgery is performed and major decisions, which can be irreversible, are taken only after the child reaches 18 years of age. However, there is no uniform policy across the country with respect to the children with non-binary sex identities and the most of the hospitals are clueless regarding how to deal with such a situation. in most of the cases, hospitals across the country are adopting highly arbitrary medical practices”, the plea states.

The petition has also challenged provisions of the Transgender Persons (Protection of Rights) Act, 2019. It challenges the definition of “transgender person” under Section 2(k) of the Act, which includes persons with intersex variations, contending that this definition is unscientific and unconstitutional.

The plea argues that being intersex is a sex characteristic and not a gender identity, and that equating the two leads to discrimination and identity erasure. It also raises objections to the provisions relating to identity certificates, residence rights and treatment of minors under the Act, stating that children cannot be classified as transgender and that parents should not be allowed to decide or consent to irreversible medical procedures on intersex children.

Another issue highlighted in the petition concerns the registration of births and deaths and the conduct of the census. The petition points out that birth and death registration forms and census schedules use the category “gender” instead of “sex” and provide options such as male, female and transgender.

According to the plea, this framework makes it impossible to accurately record intersex persons and results in the absence of reliable data, which in turn affects policy-making. The petition seeks directions to amend the Registration of Births and Deaths Act, 1969 and the Census framework to provide for proper recording of sex characteristics, including intersex categories.

“Further, an intersex person also faces challenges related to social acceptance. While the other set of people with diverse Sexual Orientation, Gender Identities and Gender Expressions largely face social challenges as a result of their varied expressions which does not require any medical and psychological assistance with respect to their expression. Therefore, the policy frameworks required for an intersex person are quite different from those required for the other set of people. However, it is highly unfortunate to note that there is no data available with the government which could provide the number of intersex people in India and only a rough guesswork is made to estimate their number”, the plea further highilghts.

The plea has also sought directions for inclusion of intersex persons in schools, colleges and employment at par with male and female candidates, and has raised the issue of reservation for intersex persons as a marginalised group. It states that existing admission and application forms force individuals to choose between male and female, leading to identity-related issues and exclusion.

In addition, the petition has sought the establishment of a national-level regulatory or statutory body for the protection of the rights of persons with diverse gender identities, expressions and sex characteristics.

The petition argues that the existing National Council for Transgender Persons lacks adequate powers, funds and infrastructure, and seeks its reconstitution or replacement with a broader commission with effective enforcement powers.

Advocate-on-Record Astha Deep and Advocate Sujeet Ranjan represent the petitioner.

Case no. – W.P.(C) No. 241/2024 Diary No. 4315 / 2024

Case Title – Gopi Shankar M v. Union of India