While understanding gender identity and sex characteristics, the first thing to note is that the two are different and cannot be used interchangeably. Gender identity refers to a person’s internal and individual experience of gender, which may or may not correspond with the sex assigned at birth. Sex characteristics refer to the chromosomal, gonadal and anatomical features of a person.
Being intersex is a sex characteristic and not a gender identity. Intersex people are born with anatomies that do not fit the binary of male and female. These could be variations in genitals, chromosomes, gonads or sex hormones. An intersex person can be transgender too, but a transgender may not be intersex.
While commoners may allow themselves to be a bit confused about these terms, the government and the law cannot—lives depend on it. It is imperative that the Supreme Court and the Union government recognise the existence of people with intersex traits (including intersex infants and gender non-conforming children), because it is not possible to uphold the civil rights of a person without first recognising them.
The law confuses more than it helps. The Registration of Births and Deaths Act of 1969 does not outline what is male and female. The Constitution mentions the term ‘sex’ in Article 15, but not ‘gender’. So the constitutional usage needs to be interpreted variously to recognise persons with diverse sex characteristics. The biggest paradox here is that even without any legal parameter for identifying males and females, courts and the government have gone on to frame policies on terms such as ‘third gender’ and ‘transgender persons’.
Another big gap is that there are no protocols to regulate medical surgeries that seek to ‘normalise’ the sex identity of intersex infants and gender non-conforming children. The Madras High Court, in the 2019 case of Arunkumar vs Inspector General of Registration inspired by the advocacy of Srishti Madurai, imposed a ban on unnecessary medical interventions on intersex infants in Tamil Nadu and directed the state to pass an order. So Tamil Nadu became the first state to legally ban sex-selective surgeries on intersex infants. Now a nationwide ban is the need of the hour.
This judgement not only recognised the plight of intersex infants but also upheld inter-caste marriages of transgender and intersex persons. It highlighted marriage rights among gender-variant persons in Hindu traditions such as the Koothandavar temple in Tamil Nadu, where the marriage of Arjuna’s son Aravan with Krishna is commemorated. We have at least 36 major Hindu temples whose architecture celebrates diverse sex characteristics.
The jurisprudence on the ‘third gender’ has led to fallacies. In Nangai vs Superintendent of Police, the Madras High Court relied on the NALSA judgement to treat an intersex person as transgender and granted rights. This reflected ignorance. However, the Delhi High Court in Faizan Siddique vs Sashastra Seema Bal gave the petitioner the post of a female constable that had been denied because of her intersex traits, and was a more progressive ruling than Nangai.
This does not mean that the government and the Supreme Court recognise the existence of intersex persons. Santhi Soundarajan, a female athlete with intersex traits who won 11 international medals, was devastated when she was told that she had failed an unscientific ‘sex verification test’ after winning a silver medal at the Doha Asian Games. Her medal was taken back and the government didn’t defend her. She was compelled for a while to work as a daily wager and even attempted to end her life. There are several other athletes with intersex variations who have suffered unheard, their bodily existence questioned.
This lack of recognition leads to irregularities. The government adopted the Transgender Persons (Protection of Rights) Act in 2019. The definition of a ‘transgender person’ in Section 2(K) of the Act traces its roots to the NALSA case and defines people of non-normative gender identity and expressions and sex characteristics as ‘transgender persons’. This definition is not scientifically correct and intersex persons cannot be included under the umbrella term. Even the Central Adoption and Resource Authority (CARA) does not recognise the existence of intersex infants and gender non-conforming children. CARA records the adoption of gender non-conforming children as that of a ‘hijra child’.
Not every subject of the state needs to reach the court for recognition. Some of the tribes in the Andaman and Nicobar are not even aware of their rights or status, but they are recognised by the Constitution. As one of the petitioners of the marriage equality case, I am not looking for the hetero-normative society to approve of my relationships. The point is that the recognition of intersex infants and gender non-conforming children should come from the courts or the government suo motu.
Considering the present issues of marriage equality, the Supreme Court’s direction to the government to form a high-level committee to address the SOGIESC (sexual orientation, gender identity, gender expression and sex characteristics) communities is not sufficient. I have recommended to the government that the current National Council for Transgender Persons formed under the 2019 law with representatives from across the nation should be re-constituted as the National SOGIESC Commission with a broader framework and powers to address grievances.
The government should establish an independent body such as a Centre for SOGIESC Studies for regulatory and advisory functions. Cases concerning the marriage right of people with diverse sex characteristics can be routed via this independent body. The government can pass a separate legislation to provide for the right to marry under the Hindu Marriage Act of 1955 itself. After all, the tradition already allows it.
Gopi Shankar Madurai
Regional Representative, National Council for Transgender Persons, GoI, and co-founder of Srishti Madurai and Taiwan-based Intersex Asia
(Views are personal.)