The Supreme Court has sought responses from the Centre, the Central Adoption Resource Authority (CARA) in a Public Interest Litigation (PIL) seeking, inter alia, making provisions for recording births and deaths of ‘intersex’ persons, inclusion of ‘intersex’ persons in the Census and for issuance of identity cards carrying both ‘sex’ and ‘gender’ identities separately.

The PIL also seeks regulation of medical intervention with intersex infants and children.

The Petitioner Gopi Shankar M, a resident of Madurai, approached the Apex Court through Advocate on Record (AoR) Astha Deep and Advocate Sujeet Ranjan. The PIL has been filed with respect to the rights of people with diverse gender identity, expression, and sex characteristics (GIESC).

While issuing notice in the matter, the Bench, comprising Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra, asked Additional Solicitor General (ASG) Aishwarya Bhati to assist it during the hearing of the PIL.

The plea stated that people with intersex characteristics have been facing various challenges due to the usage of the terms ‘Sex’ and ‘Gender’ interchangeably. "The pathbreaking judgment by this Hon’ble Court in National Legal Services Authority Vs. Union of India and Ors. reported in (2014) 5 SCC 438 requires to be overruled to the extent of the use of the terms ‘Sex’ and ‘Gender’ interchangeably and also the use of the term ‘transgender’ as an umbrella term for persons whose gender identity lies outside the compartments of sexual binary. The major legal fallacy of the NALSA judgment (Supra) is that the legislature and the executive started to consider “Sex” and “Gender” as one and the same, which eventually led to the formulation of ineffective policies," it added.

The Petition stated 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 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. In fact, the said statutory body is functioning without even an office setup," the PIL read.

The PIL stated that people in the aforementioned category also face several challenges while getting admission in schools or colleges and while applying for jobs. It stated that most schools and colleges, by not providing an option other than male or female in the sex column of their admission forms, are, in a way, forcing a child to only opt for either a male or a female identity for admission, which causes grave identity crisis.

"Further, some schools are using the Term ‘Third Gender’. Surprisingly, there is nothing which defines the ‘First’ and ‘Second’ gender between a Male and a Female keeping both of these Sex identities on the same footing. But when an ‘Intersex’ person is identified as a ‘Third Gender’, the term itself gives a discriminatory message that an ‘Intersex’ person belongs to a ‘Third’ class/category of people after a Male and a Female which is a gross violation of Article 14 of the Constitution of India," it read.

The PIL further stated that adoption is another legal issue that intersex children must deal with and that there are no special records or guidelines for adopting an intersex child. It said that intersex children are frequently abandoned by their families and that not even adoption and shelter homes provide special care for them.

It also stated, "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."

The Petition asserted that the policy frameworks required for an intersex person are quite different from those required for 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 added.

The PIL has named various Union ministries, including Home Affairs, Social Justice and Empowerment, Health and Family Welfare, Law and Justice, and Women and Child Development, as parties to the plea. Additionally, the Registrar General, the Census Commissioner of India, and CARA have been included as parties to the Petition.

Cause Title: Gopi Shankar M v. Union of India and Ors. [Diary No. 4315-2024]

Justice JB PardiwalaJustice Manoj MisraChief Justice DY ChandrachudTransgender

Sukriti Mishra