SC notice to Centre on plea to safeguard interests of intersex children

NEW DELHI: The Supreme Court on Monday issued notice to the Centre on a PIL for putting in place legislative mechanism to safeguard interests of intersex children and regulating medical interventions, including sex reassignment surgeries.

A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra asked Additional Solicitor General Aishwarya Bhati to assist the court in dealing with the PIL filed by Gopi Shankar M.  

The court sought a response on from the Union government as advocates Astha Deep and Sujeet Ranjan on behalf of the petitioner said there was a need for a legislative mechanism at the Central level to deal with situations regarding medical interference with the intersex child.

"In other jurisdictions, such medical interventions are punishable offences and a special team of doctors have to determine whether sex determination surgery is an urgent or not until the child attains the age of informed consent,” the counsel said.

The counsel said the sex-determination surgeries are being performed with the consent of the parents of infants in several states and it was only in Tamil Nadu that such surgeries have been banned by the Madras High Court until the child attains the age of giving informed consent.

The plea said the 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.

The plea contended that people with intersex characteristics have been facing various challenges due to the usage of the terms ‘sex’ and ‘gender’ interchangeably.

It also contended the judgment in National Legal Services Authority Vs Union of India and Ors (2014), 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.

It is pertinent to note that there can be many ways in which an individual may not conform to the prevailing gender norms and may feel an inherent sense of gender identity that differs from their sex assigned at birth, the petitioner said.

“There is no uniform policy across the country with respect to the children with non-binary sex identities and most of the hospitals are clueless regarding how to deal with such a situation,” the plea said.

It also said there are no specific records or rules for the adoption of an intersex child. Even adoption and shelter homes do not have specific care for intersex children. The abandonment of intersex children from the family happens in many cases, the plea claimed.

There is also no proper framework to include people with intersex identities in census and inclusion of persons with diverse sex identities as ‘transgender’ in the column of ‘sex’ for Census is incorrect as ‘transgender’ is a gender identity, it contended.

The petitioner made the Ministry of Health and Family Welfare, Ministry of Law and Justice, Ministry of Women and Child Development, Central Adoption Resource Authority, Ministry of Home Affairs, and Registrar General and Census Commissioner of India as parties in the PIL.

The plea said United Nations has used the definition of sex as ‘the physical and biological characteristics that distinguish males and females’ from each other along with from other non-binary sex identities. While the term gender has been defined by the United Nations as “referring to the roles, behaviours, activities, and attributes that a given society at a given time considers appropriate for men and women that are socially constructed and are learned through socialization processes.”

The petitioner said, being a South Regional representative of the National Council for Transgender Persons (NCTP) has been facing a lot of issues arising out of the indiscriminate use of the terms ‘Sex’ and ‘Gender’ interchangeably.