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Synopsis

A Chief Justice of India led bench today issued notice in a Public Interest Litigation (PIL) seeking a legislative mechanism to regulate medical intervention with intersex infants and children to safeguard their fundamental rights.

Instant PIL has been filed by Gopi Shankar M, the first open intersex South Regional Representative of the National Council for Transgender Persons (NCTP), appointed under the Transgender Persons (Protection of Rights) Act, 2019 by the Ministry of Social Justice and Empowerment, Government of India.

The bench also comprising Justices JB Pardiwala and Manoj Misra has also asked Additional Solicitor General Aishwarya Bhati to assist the court on the issue.

Filed through AOR Astha Deep and Advocate Sujeet Ranjan, the PIL informs court 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.

Citing recent surgeries performed by the Government Rajaji Hospital (GRH), Madurai, Tamil Nadu on 40 intersex newborns and children with ambiguous genitalia, the plea states 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.

"That one such example of adoption of arbitrary medical practices in the absence a proper government policy is of Bhuwaneshwari who was brought up as a female despite being an intersex person. Another similar example may be traced to the Indian athlete Santhi Soundarajan who had to face a lot of embarrassment at 2006 Asian Games, when the athlete was stripped of the silver medal won by her after her failure to an absurd sex verification test", the PIL states.

Another legal challenge faced by intersex children has been flagged which is their adoption as there are no specific records or rules for the adoption of an intersex child.

Accordingly, issuance of directions for following reliefs have been sought:

1. provisions for recording births and deaths of the ‘intersex’ persons
2. provisions for the inclusion of ‘intersex’ persons in the Census
3. provisions for issuance of identity cards carrying both ‘sex’ and ‘gender’ identities separately
4. consider enactment of a legislative mechanism to regulate medical intervention with intersex infants and children
5. establishment of a Central/National Regulatory Commission / Centre for The Protection of Rights Of People With Diverse Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics
6. empower the National Council for Transgender Persons (NCTP) formed under the Transgender Persons (Protection of Rights) Act, 2019 along with a small honorarium for the Statutory Authority
7. inclusion of ‘Intersex’ people in schools, colleges, government and private jobs, adoption and care homes at par with a male or a female candidate and also considering reservation for intersex people, they being, a marginalised class;

Court has further been told that the 2014 judgment of National Legal Services Authority vs. Union of India and Ors. 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.

Case Title: Gopi Shankar M vs. Union of India