Constitutional Recognition of Intersex Persons

Context

The Supreme Court of India has recently issued notices to the Centre and State governments on a Public Interest Litigation (PIL) filed in the matter to declare intersex persons as a distinct class of transsexuals. A bench of three judges headed by Chief Justice of India Surya Kant is looking into the plea for separate guidelines. The petition highlights status of the Constitution as a transformative charter and biological reality of intersex individually as distinct from the transgender individual.

Understanding the Core Terms

• Intersex Persons: People who are born with differences in the physical sex characteristics (also called Congenital Variations of sex characteristics). This ranges from differences in genitalia, chromosomes, gonads or hormones which do not conform to the binary terms of male and female.
• The Distinction (Sex vs. Gender):
  • Sex is a natural biological fact of life, first experienced the moment of birth.
  • Gender Identity is a personal, psychological and social construct that may develop over time and/or later in life.
  • Conflation Issue: At present, intersex people are routinely equated with transsexuals and transgendered people by the Indian administration. Transgender is about gender expression, which is different from one’s birth sex; intersex is solely about an anatomical, biological variation.

Core Demands of the Petition

The PIL by advocate Shamshravish Rein calls for the following institutional and legal remedies:

• Ban on Normalization Surgeries: A nationwide ban on medically unnecessary, irreversible cosmetic or surgical procedures for intersex infants and children.
• National Medical Protocol Committee: Establishment of a dedicated expert body within 3 month to create rights based uniform medical handling protocol.
• Amnesty in Civil Documentation: Amendment to rules for Aadhaar, passports, birth registries and educational certificates to provide for a suitable neutral gender option.
• Affirmative Action Framework: Provision of educational and public employment reservations and protection in the inheritance and succession laws.

Constitutional Provisions at Stake

The present “zone of silence” and legislative silence on intersex persons directly affects the fundamental rights under Part III of the constitution:

• Article 14 (Right to equality): Forcing intersex persons to fall into the binary system of recognition by their biological sex would exclude them from the equal protection of the laws.
• Article 15 (Prohibition of Discrimination): Prohibition of discrimination “on the basis of sex”. This mandate should legally embrace and include from birth the natural variation in human bodies.
• Article 21 (Right to Life and Personal Liberty): Applies to the right to bodily integrity, personal autonomy and privacy. The irrevocable gender-assignment surgery on an infant is a breach of the doctrine of proportional state intervention.

Socio-Administrative Challenges

• The “Parens Patriae” Doctrine: The State as the final protector of those in need. The State delegates this role to the parent and physician, leaving parents and physicians to make permanent surgical decisions for infants before they can give consent.
• Social Vulnerabilities: Social stigma is a severe consequence of lack of recognition and leads to infant abandonment, exclusion from education systems and legal restrictions on inheriting family assets.
• Statistical Invisibility: The national census and population metrics fail to record intersex births separately, disabling the state from designing targeted social welfare schemes.

Way Forward

The Supreme Court’s action represents a change from symbolic recognition of gender to biological protection. In future this structural deficiency must be taken up by the executive, who must distinguish between “sex identity” and “gender identity” in administrative records. A moratorium on non-emergency infant surgeries (as in human rights standards worldwide) and special welfare boards will make constitutional equality functional, meaningful and protective from the moment of birth. 

Source: The Hindu

UPSC Mains Practice Question 

Q. Examine the need for legal recognition and protection of intersex persons in India. How can public policy promote their rights, dignity, and social inclusion?

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