The ongoing petition in the Supreme Court on recognising “same-sex marriage” reflects the lack of conceptual understanding and difference between “sex /sex identity” and “gender /gender identity”. In its famous decision in NALSA v. Union of India, the Supreme Court recognised the existence of transgender or any other gender apart from binary gender as “third gender”.

Following the same approach, if the Supreme Court recognises “same-sex marriage”, it will only be limiting the civil rights of marriage to cis-lesbians and cis-gays, leaving out people with diverse sex characteristics, including intersex persons, and gender variant identities.

While understanding GIESC (Gender Identity and Expressions, and Sex Characteristics), it is pertinent to note that sex characteristics and gender identity are different concepts and cannot be used interchangeably. Being Intersex is a ‘sex characteristic’ and not a gender identity. A person with intersex variations can be a ‘transgender person’ too, but Transgender may not be Intersex. 

It is imperative that the Supreme Court and the Government of India recognise the existence of people with intersex traits (including intersex infants and gender non-conforming children), because it is not objectively possible to uphold the civil rights of persons with diverse sex characteristics without recognising them (making them visible). 

Till now, India has no specific data on the intersex population (including intersex infants and gender non-conforming children). The last Census of India (2011), only recorded the “Transgender persons” population, and that too under the ‘sex’ column. Unless and until we have clear data on a population of persons with diverse sex characteristics which is non-heterogeneous, it is not possible to frame or adopt effective policies for them. The current Census Schedule provides an option for “transgender” in the “sex” column for persons who do not fall under the binary male and female.

But there are no legal aspects to detail what constitutes a male and a female. The Registration of Births and Deaths Act, 1969 does not outline what is male and female. The Constitution of India mentions the term “sex” in Article 15, but there is no use of the term “gender”.

The term “sex” in the Constitution of India needs to be interpreted recognising the existence of persons with diverse sex characteristics. The biggest paradox here is that even without any legal parameter for what constitutes male and female, the Court and the Government of India went on to define the definition of “third gender” and “transgender persons” respectively. 

Furthermore, there are no medical protocols to regulate the performance of a medical surgery to normalise the sex identity of intersex infants and gender non-conforming children. In 2019, the Madras High Court in the case of Arunkumar and Ors. v. IG of Registration, inspired by the advocacy of Srishti Madurai on the rights of intersex infants, imposed a ban on unnecessary medical intervention with intersex infants in the State of Tamil Nadu and directed the Tamil Nadu government to pass a legal order. Subsequently, the State of Tamil Nadu became the first state which provided a legal regime banning sex-selective surgeries with intersex infants. The Government of India must enact a nation-wide ban on unnecessary medical intervention with intersex infants.

The Madras High Court judgment not only recognises the plight of intersex infants but also upholds the inter-caste marriage of transgender persons. It highlights the existence of the marriage rights of gender variant persons in Hindu traditions, such as the Koothandavar Temple in Tamil Nadu, which represents the marriage of Aravan and Krishna. Also, gender-specific sacred spaces are respected in Hindu civilisation which acknowledges the existence of persons with diverse sex characteristics. 

The established jurisprudence by the Apex court on “third gender” has led to fallacies to further recognition of persons with intersex variations. For instance, in Nangai v. The Superintendent of Police, the Madras High Court relied on the NALSA judgment to treat an intersex person as “transgender person” and granted rights. This reflects ignorance of the existence of persons with intersex variations. Some High Courts have tried to uphold the rights of intersex persons. The Delhi High Court in Faizan Siddique v. Sashastra Seema Bal invalidated the decision of Sashastra Seema Bal denying the candidature of Faizan Siddique as Constable (GD) female on the ground of intersex traits.

But this does not mean that the Government of India or the Supreme Court recognises the existence of intersex persons as individuals. Santhi Soundarajan, a female athlete with intersex traits, and the first Tamil Indian to win a silver medal in the Doha Asian Games (total 11 international medals), was devastated when suddenly told she does not pass the gender test. Her silver medal was taken back and the Government of India didn’t even defend her on the international circuit. She was compelled for a time to work as a daily wager for survival.

The absence of Government support and recognition of the rights of a female international athlete with an intersex variation, who had made India proud, pushed her into a corner; she even attempted to end her life. There are several other athletes with intersex variations who have suffered unheard; their bodily existence is itself in question. These intersex persons are living with a question mark over their recognition and existence and the same is impacting their day-to-day activities. It is the duty of the Government of India to recognise the existence of persons with intersex variations and to protect them.

The lack of recognition of the intersex population, including intersex infants and gender non-conforming children, leads to irregularities in laws. For instance, the Government of India adopted the Transgender Persons (Protection of Rights) Act, 2019. The definition of “transgender person” as provided in Section 2 (k) of the Act, traces its roots to NALSA v. Union of India, and defines 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 of “transgender persons”. 

Even the Central Adoption and Resource Authority (CARA) under the Ministry of Women and Child Development does not recognise the existence of intersex infants and gender non-conforming children. The CARA records the adoption of gender non-conforming children as the ‘hijra child’.

Every citizen does not need to approach the Court for recognition. Tribes living in Andaman and Nicobar, like Sentinelese, are not even aware of their rights or status, but these are recognised by the Constitution. The point we wish to make is that the existence and recognition of intersex infants and gender non-conforming children should come from the Court or the Government as a suo motu action; they should give recognition and agency to this voiceless group.

Considering the present issues of same-sex marriage, the Government of India’s proposal to form a committee to address the issues of the community is not sufficient. India is a nation with myriad indigenous traditions and diversity. As a host of G20, India must make the nation more inclusive and closer to its traditional /indigenous roots.

We propose that the current National Council for Transgender Persons (NCTP) formed under the Transgender Persons (Protection of Rights) Act, 2019, having representatives from across the nation, be re-constituted as National SOGIESC (Sexual Orientation, Gender Identity and Expressions, and Sex Characteristics) Commission with a broader framework and powers to address grievances.

The Government should establish an independent body such as a Centre for SOGIESC Studies to offer regulatory, advisory and policy-making functions in matters related to Sexual Orientation, Gender Identity and Expressions and Sex Characteristics. The civil rights of marriage of people with diverse sex characteristics can be routed via this independent body. In fact, the Government can pass separate legislation specifically to provide the civil right of marriage to persons with diverse sex characteristics under Hindu traditions without intervening in the right of marriage of heterogeneous populations under the Hindu Marriage Act, 1955.

Interestingly, Hindu priests have blessed marriages of gender non-conforming couples, as part of our inclusive tradition. Shri Raja Gopal Bhattar has officiated more than twenty marriages of gender non-conforming people via Hindu marriage rites and ceremonies. In response to queries, he asserted that Hindu tradition accepts and recognises gender non-conforming couples and the hence the marriage is right and just.

If the Supreme Court moots recognition of the right of marriage, it should recognise this right for non-heterogeneous marriage (not excluding people with diverse sex characteristics) and accept the same under Hindu Personal Laws. Hindu traditions are valid proofs and reasons for acceptance of non-heterogeneous marriage rights for people with diverse sex characteristics and sexual orientation.

Gopi Shankar Madurai is the first openly intersex statutory authority with the Government of India. Inputs from advocate Vijay Mishra, human rights researcher and Coordinator of the Intersex India project.