Intersex Rights In India

Recently, the Supreme Court referred a Public Interest Litigation (PIL) to a three-judge Bench, recognising that it challenges the conflation of gender and sex in the NALSA judgement.

Legal Framework Based On National Legal Services Authority (NALSA) Judgment

• Foundational Role of NALSA: The legal framework governing sex and gender diversity in India is primarily shaped by the NALSA v Union of India judgment of 2014.
• Interchangeable Use of Sex and Gender: The judgment treated “sex” and “gender” as interchangeable concepts.
• Grouping of Non-Binary Identities: As a result, all non-binary identities were grouped under the umbrella of “transgender” or “third gender.”

About Intersex Persons

• Nature of Sex Characteristics: Intersex persons are born with sex characteristics such as genitals, gonads, or chromosome patterns that do not fit typical binary notions of male or female bodies.
• Biological Diversity: These variations arise from natural biological diversity and are not pathological in themselves.
• Distinction from Sexual Orientation: Being intersex is unrelated to sexual orientation.
• Legal Recognition: Countries like Malta, Germany, and Australia legally recognise intersex persons and prohibit non-consensual medical surgeries on them.

Distinction Between Intersex and Transgender

• Transgender Identity: The term “transgender” relates to gender identity, which is an individual’s internal sense of self.
• Difference in Lived Experience: While transgender persons may identify with a gender different from the sex assigned at birth, intersex persons are born with biological traits that are not exclusively male or female.

Key Issues Mentioned in the PIL

• Identity of the Petitioner: The PIL was filed by Gopi Shankar M, the first openly intersex member of the National Council for Transgender Persons in 2024.
  • The National Council for Transgender Persons (NCTP) is a statutory body constituted under the Transgender Persons (Protection of Rights) Act 2019 to safeguard the rights of transgender persons in India.
• Category Error: The PIL highlights a fundamental distinction often overlooked in Indian law:
  • The difference between “sex” and “gender”, and the physical and legal limbo faced by those who do not neatly fit into the binary categories of male or female.
• Distinct Nature of Protection Required: It contends that intersex persons require protection based on their physical characteristics, which is different from protection linked to self-identified gender.
• Crisis of ‘corrective’ surgeries: The PIL highlights the practice of sex-selective or sex-assignment surgeries performed on infants with ambiguous genitalia.
  • These interventions aim to alter bodies to resemble standard male or female forms cosmetically.
• Lack of Informed Consent: These corrective surgeries are often performed long before children are capable of providing informed consent.
• Role of Societal Pressure: Due to pressure to fit children into a binary framework, parents and doctors may opt for such procedures.
  • The PIL states that these interventions are irreversible, medically unnecessary, and physically and psychologically damaging.
• Allegations Raised: There is no consolidated national data on the prevalence of such surgeries.
  • However, the PIL alleges that 40 intersex newborns and children underwent such surgeries at Government Rajaji Hospital in Madurai during 2022 and 2023.

Judicial and State interventions

• Arunkumar v The Inspector General of Registration (2019): The Madras High Court effectively banned sex-selective surgeries on intersex infants and children.
• Issuance of Government Order: Following the court’s direction, the Tamil Nadu government issued a government order in August 2019.
  • The order banned sex reassignment surgeries on intersex infants and children except in life-threatening situations.
  • Tamil Nadu became the first state in India to protect intersex minors from such interventions legally.
• Recommendation by Child Rights Commission: In 2021, the Delhi Commission for Protection of Child Rights recommended a ban on medically unnecessary sex-selective surgeries.
• Direction of the Delhi High Court: In 2022, the Delhi High Court directed the Delhi government to decide on the recommendation. The Delhi government has not yet implemented such a prohibition.

Challenges Faced by Intersex Persons in India

• Lack of Official Enumeration: There is no official count of the intersex population in India.
• Historical Non-Recognition: Intersex persons have never been recognised as a distinct category in official data.
• Census Misclassification: The 2011 Census recorded intersex persons under the “Transgender” category in the sex column.
  • This reflects an incorrect mix-up of sex and gender.
• Forced Misidentification at Birth: The Registration of Births and Deaths Act, 1969, follows a strict male–female binary.
  • As a result, parents are compelled to register intersex children as either male or female.
  • Such misidentification creates enduring legal and administrative difficulties.

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Key Demands of the PIL

• Legislative Regulation: The PIL’s primary demand is for a direction to the government to enact a legislative mechanism regulating medical interventions, thereby banning non-consensual sex-assignment surgeries on minors nationwide.
• Separate Census Enumeration: Inclusion of “intersex” as a distinct category in the Census.
• Reform of Identity Documents: It also seeks separate columns for biological sex and gender identity to enable individuals to reflect their lived reality.
• Regulatory Commission: The petition for the establishment of a central regulatory commission for the protection of intersex persons.
• Reservation Benefits: It demands the extension of reservation benefits to the intersex community, recognising them as a marginalised class that has historically been excluded from education and employment.

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