The Supreme Court has referred a PIL seeking legal protection for intersex children and inclusion in the Census to a three-judge Bench. The plea highlights non-consensual medical procedures and calls for clear rights and policies for intersex minors.
New Delhi: The Supreme Court on Tuesday directed that a Public Interest Litigation (PIL) seeking a proper law to regulate medical treatment of intersex infants and children should be placed before a three-judge Bench.
While hearing the matter, Chief Justice of India Surya Kant said,
“A good issue is raised. We’ll refer it to a 3-Judge Bench. Post the matter accordingly.”
The PIL raises serious concerns about the fundamental rights of intersex children, especially against medical procedures carried out without their consent.
The Supreme Court had earlier taken note of the issue in April 2024 and had issued notice, observing that the matter was sensitive and required urgent legal protection.
The petition has been filed by Gopi Shankar M, who is the first openly intersex South Regional Representative of the National Council for Transgender Persons (NCTP).
He was appointed under the Transgender Persons (Protection of Rights) Act, 2019 by the Ministry of Social Justice and Empowerment, Government of India.
During the April hearing, the Bench had also requested Additional Solicitor General Aishwarya Bhati to assist the Court on the issue, considering its constitutional and social importance.
Filed through Advocate-on-Record Astha Deep and Advocate Sujeet Ranjan, the PIL explains that intersex persons are those who are born with sex characteristics such as genitals, reproductive organs (ovaries or testicles), or chromosome patterns that do not fit into the usual male or female categories.
The petition specifically refers to recent surgeries carried out at Government Rajaji Hospital (GRH), Madurai, Tamil Nadu, where around 40 intersex newborns and children with ambiguous genitalia allegedly underwent medical procedures.
The PIL claims that there is no uniform policy across India for handling such cases and that most hospitals do not have proper guidance on how to deal with children born with non-binary sex characteristics.
Highlighting the dangers of unregulated medical practices, the petition states,
“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 also points out serious legal problems faced by intersex children in the adoption process. It states that there are no specific rules or records for the adoption of intersex children, which leaves them legally unprotected and socially excluded.
Based on these concerns, the petition has requested the Supreme Court to issue directions for several important measures, including:
- Making provisions for recording births and deaths of ‘intersex’ persons
- Including ‘intersex’ persons in the national Census
- Issuing identity cards that clearly mention both ‘sex’ and ‘gender’ as separate identities
- Considering the enactment of a law to regulate medical interventions on intersex infants and children
- Setting up a Central or National Regulatory Commission or Centre for the Protection of Rights of People with Diverse Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics
- Strengthening the National Council for Transgender Persons (NCTP) formed under the 2019 Act and providing a small honorarium to the statutory authority
- Ensuring inclusion of intersex persons in schools, colleges, government and private employment, adoption systems, and care homes on equal terms with male and female candidates, and also considering reservation for intersex persons as they form a marginalised group
The Court was further informed that the landmark 2014 judgment in National Legal Services Authority vs. Union of India and Ors. needs reconsideration to a limited extent.
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According to the PIL, the judgment wrongly used the terms ‘sex’ and ‘gender’ interchangeably and also treated ‘transgender’ as an umbrella term for all persons whose identities fall outside the male-female binary, which does not correctly reflect the unique identity of intersex persons.
The Supreme Court now referring the matter to a three-judge Bench, it is expected that the issue of legal protection, bodily autonomy, and dignity of intersex children will receive detailed constitutional consideration in the coming hearings.
Case Title:
Gopi Shankar M vs. Union of India
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