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Synopsis

The Supreme Court has on April 8, 2024 sought a response from the Union government on a plea to consider enactment of a legislative mechanism to regulate medical intervention with intersex infants and children in order to safeguard their fundamental rights.

A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra issued notice returnable on May 6, 2024 on a PIL filed by Gopi Shankar M, a resident of Madurai, through advocate Ashtha Deep.

The bench asked Additional Solicitor General Aishwarya Bhati to assist the court.

The plea said that the people with diverse gender identities and expressions and sex characteristics (GIESC) are suffering grave injury and loss due to lack of proper policy with respect to them.

It contended that the Supreme Court's pathbreaking judgment in National Legal Services Authority Vs Union of India and Ors (2014) is required to be overruled for the court erred in defining every other identity apart from ‘male’ and ‘female’ as ‘transgender persons’ and every transgender is ‘third gender’. 

"There is difference between the term ‘gender’ and ‘sex’ and using it interchangeably is neither scientific nor legal. There is a general agreement in the scientific community about sex and gender being two different concepts; sex refers primarily to biological factors, while gender closely aligns to social norms and roles," it said.

The PIL contended that intersex people are those born with sex characteristics, including genitals, gonads (reproductive glands such as ovaries or testicles) and chromosome patterns, that do not fit with typical binary notions of male or female bodies.

"There can be many ways in which an individual may not conform to the prevailing gender norms and may feel an inherent sense of gender identity that differs from their sex assigned at birth. Gender identity can be defined as 'someone’s personal and deeply felt internal sense of the self, which may or may not correspond with the person’s physiology or designated sex at birth'," it stated.

The plea said that there is a complete policy paralysis while dealing with the sex and gender related issues of mentioned group of people. Further, National Council for Transgender Persons (NCTP) has been helpless in providing any solutions to such issues since the said statutory body has neither been assigned any power nor any fund is allocated to them, the plea claimed.

It also stated that most of the schools and colleges, by not providing an option other than male or female in the sex column of their admission forms, in a way, are forcing a child to only opt for either a male or a female identity for taking admission which causes grave identity crisis.

"It is very disheartening to note that even the Central Adoption and Resource Authority (CARA) under the Ministry of Women and Child Development, Government of India has no definite policy for the adoption of an intersex child," it contended.

The plea also stated that there is also no proper framework to include people with intersex identities in census and inclusion of persons with diverse sex identities as ‘transgender’ in the column of ‘sex’ for census is incorrect as ‘Transgender’ is a gender identity. 

"The policy frameworks required for an intersex person is 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," it said.

The petitioner highlighted that it is the need of the hour that there should be a legislative mechanism to regulate medical intervention with intersex infants and children to safeguard their fundamental rights, similar to various other jurisdictions and to promote and protect the human rights of people with diverse sex identities with the constitution of a National Commission for the Protection of Rights of People with GIESC Identities.