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THE NEED FOR SPECIFIC LEGAL PROTECTION OF INTERSEX INDIVIDUALS IN INDIA:

A GENDER THAT HAS WALKED THE EARTH AS LONG AS MAN BUT HAS REMAINED
LARGELY INVISIBLE TO SOCIETY

AUTHOR - NIKARA LIESHA FERNANDEZ

STUDENT AT SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY), BANGALORE

Best Citation - NIKARA LIESHA FERNANDEZ, THE NEED FOR SPECIFIC LEGAL PROTECTION OF INTERSEX
INDIVIDUALS IN INDIA: A GENDER THAT HAS WALKED THE EARTH AS LONG AS MAN BUT HAS REMAINED
LARGELY INVISIBLE TO SOCIETY, Indian Journal of Legal Review (IJLR), 3 (2) of 2023, Pg. 167-181, APIS –
3920 – 0001 & ISSN - 2583-2344.

I. Introduction definition387 section but makes no efforts to

distinguish it from the term ‘transgender’, as a
Intersex is a term that many people are not result of which the two are treated as one and
familiar with as they do not come across it the same. From a judicial standpoint as well,
everyday lives. Even those who are familiar with there have only been a few judgements that
the term seldom understand the true nature dabble around the topic of ‘intersex.’ The
and intricacies that form a part of the lives of progressive and widely celebrated judgement
individuals who identify as intersex. While in National Legal Services Authority v. Union of
conducting the research for this paper, the India388, has no doubt made great progress for
researcher was shocked to find the dismal lack the transgender community, but on careful
of information, especially from the Indian scrutiny, it can be seen that there has been no
perspective, about intersex individuals. acknowledgement or action taken to allay the
Internationally as well, it has only been in the specific concerns of the intersex community.
last couple of decades that individuals The lacunae in the aforementioned judgement
identifying as ‘intersex’ have been more vocal were corrected with the recent case of
about their plight and have tried to spearhead Arunkumar v. Inspector General of
movements to fight for the recognition and Registration 389
wherein the judiciary took an
protection of their rights. This lack of awareness active step in ordering the Tamil Nadu
of a largely invisible population is clearly visible Government to prohibit medical interventions
in the reflection of the handful of countries that on intersex infants.
actually have laws protecting the rights of
intersex individuals. It is saddening to note that
India has no comprehensive legislative
framework to adequately deal with the specific
issues faced by intersex individuals. From the
387 The Transgender Persons (Protection of Rights) Act 2019, s 2(i), No.40,
legislative standpoint, the Transgender Persons Acts of Parliament, 2019 (India)
(Protection of Rights) Act, 2019 merely defines 388 National Legal Services Authority v. Union of India, (2014) 5 SCC 438

(hereinafter referred to as the NALSA judgement)

‘person(s) with intersex variations’ once in its 389 Arunkumar v. Inspector General of Registration, 2019 SCC OnLine Mad

8779 (hereinafter referred to as the Arunkumar judgement)

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II. Understanding Intersex Individuals genitalia of a male but due to the detection of
ovaries (rather than testes) on the inside of the
The UN defines intersex390 individuals as those individual, the physician might advise and insist
people that ‘are born with physical sex that the parents consider putting this infant
characteristics (such as sexual anatomy, through a gonadectomy to remove the ovaries
reproductive organs, hormonal patterns and/or present in the child as prima facie, it is
chromosomal patterns) that do not fit typical considered ‘abnormal’ for a male to have
definitions for male or female bodies.’ To ovaries. What sadly, is not taken into
understand this in its true sense and consideration is the freedom of choice and
differentiate it from other non-binary consent of the child. This infant is stripped of
categories, especially those that fall under the one of its most important rights of self-
transgender umbrella, attention needs to be determination and reproductive/sexual health
paid to the term ‘physical sex characteristics.’ the moment it is born into the world.
Contrastingly, transgender individuals are
defined391 as ‘someone whose gender identity The stigma behind the belief that there exist
differs from their sex recorded at birth.’ Gender only two genders- male and female is the root
identity 392
can be understood as something that of this problem. It is the reason an entire
a person deeply feels on the inside as a ‘sense segment of human beings that make up 1.7% 394
of being male or female or something in of the world’s population remain invisible and
between.’ This feeling is subjective, self-defined unheard of. It must be understood at the outset
and may or may not correspond with their sex. that transgender individuals are not the same
Sex characteristics 393
on the other hand, refer to as intersex individuals. The former are born as
‘genitalia and other sexual and reproductive typical males or typical females, with their DNA
parts.’ and sex characteristics reflecting the same. It is
only after birth that they recognise and develop
Simply put, sex characteristics are objective or their gender identities by deeply and better
definitive, but their identification or detection is understanding their feminine/masculine sense
rather complex and not always obvious, and so of being on the inside. Intersex individuals are
it is seen as convenient to group them under from birth itself physiologically different from
the same subjective umbrella of ‘transgender.’ the typical male/female. They are born into the
As an illustration, consider a woman gives birth world with these differential sex traits and
to a newborn that externally looks exactly like a characteristics. This does not mean that they
typical male child. However, the doctors, during are any less ‘natural’ or ‘normal’ compared to
the ultrasound, find it difficult, until the actual any other binary man or woman. Why then, are
birth of the child, to conclusively determine its they forced to undergo medical interventions at
sex due to the detection of XX chromosomes such an early stage in their lives? These
that correspond typically to a female’s DNA interventions are often not even medically
pattern. This child may have the external necessary and rather run the risk of being be
life-threatening. The answer has been created
390 The United Nations Human Rights Office of the High Commissioner, by society itself due to their beliefs from time
Intersex people: OHCHR and the human rights of LGBTI people, OHCHR BLOG immemorial. Religious, economic, cultural and
(1st December 2022, 5:29 PM), https://www.ohchr.org/en/sexual-
orientation-and-gender-identity/intersex-people societal factors all have the shared basis that
391 Fleur Mulligan, Gender identity: Developing a statistical standard, UN

Department of Economic and Social Affairs, Statistics Division (3rd an individual is born as either a man or a
December 2022, 6:00PM), woman. The sex you are born as, which is
https://mdgs.un.org/unsd/classifications/expertgroup/egm2017/ac340-
22a.PDF ultimately reflected on your birth certificate
392 Ibid at 5
393 Victorian Equal Opportunity & Human Rights Commission, Sex must be either male or female. Therefore,
characteristics, Human Rights Vic. Gov. Australia (10th December 2022, 7:23
PM), https://www.humanrights.vic.gov.au/for-individuals/sex-
characteristics/ 394 Supra at 4

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parents to intersex individuals as well as the infant himself/herself had no say. From the
medical physicians see these infants as parent’s point of view however, most of them
problems or abominations that need to be are well-meaning and genuinely believe that
‘corrected’ or ‘fixed’ as they depart, in some these surgeries are in the best interest of the
sense, from the traditional characteristics of a child’s future, to save them from being bullied in
typical male or female. These intersex school for appearing/being ‘different.’ There
individuals are perfectly capable of leading have been instances where doctors themselves
long, healthy lives without these corrective have advised parents to consent to such
surgeries. This proves that the surgeries are not surgeries under the false belief that refusing
medically necessary and are rather, cosmetic in surgery would significantly increase the intersex
nature 395
. individual’s risk of contracting cancer 398 in the
future. These decisions are made hastily under
The few instances where medical intervention is false pretences due to the dearth of available
acceptable in case of intersex infants is when and reliable information regarding the
the internal organs of the infant are found on physiology and anatomy of intersex individuals.
the outside of the body or in case of urinary Intersex children are often made to believe that
tract obstructions 396
(surgeries to ensure that they are a rare species of sorts, one of the few of
there is place for urine to leave the body or their kind and that they will not find anyone in
where the internal organs protrude from the the same situation as them. They are also told
abdominal wall/impair excretion). Other to keep their sex a secret. This instils a deep
instances are when the infant is unable to retain sense of shame which leads to depression,
salt in the body and surgeries performed for discrimination, and an inherent sense of
early removal of streak gonads in children with inferiority due to fear of social stigma, were
gonadal dysgenesis397. Barring these, all other people to find out the truth about them.
medical interventions on intersex infants and
individuals are completely cosmetic in nature Some of the more common cosmetic
and there exists no medical necessity for the surgeries399 intersex infants are subjected to are
same. vaginoplasties, labioplasties, clitoral recession
surgeries, penile augmentation surgeries,
A. The Plight and Struggles faced by the urogenital surgeries, phalloplasty, hypospadias
Intersex Community surgeries, etc. In some instances, if intersex
traits are detected during the early stages of
Intersex infants are made to undergo numerous pregnancy, many intersex foetuses are aborted
cosmetic surgeries that are consented to by and this is associated with a whole other range
their parents in order to ‘fix’ something that is of human rights violations closely associated
not a problem or broken to begin with. The with the rights of an unborn child, however the
impact of these surgeries is long-lasting and discussion about the same is beyond the scope
sometimes irreversible in nature, condemning of this paper.
the individual to a life filled with hardships and
complications which are created by man, Yet another risk of performing such surgeries is
treating their bodies as experiments in which that there is no guarantee of its success.
Intersex individuals that have been forced and
395 InterACT Advocates for Intersex Youth, I want to Be Like Nature Made Me:
Medically Unnecessary Surgeries on Intersex Children in the US, HRW ORG
(October 1st, 2022, 7:30 PM), https://www.hrw.org/report/2017/07/25/i- 398 Méndez J. Tamar-Mattis. A. p. 94, Medical treatment of people with intersex
want-be-nature-made-me/medically-unnecessary-surgeries-intersex-children- conditions as torture and cruel, inhuman, or degrading treatment or punishment, Center
us for Human Rights & Humanitarian Law, Washington College of Law, editors.
396 Ibid Torture in healthcare settings: Reflections on the Special Rapporteur on
397 Zillén K., Garland J., Slokenberga S. The Rights of Children in Biomedicine: torture’s 2013 thematic report. (Washington, DC, 2013)
Challenges Posed by Scientific Advances and Uncertainties, Committee on Bioethics 399 Carpenter M, ‘Intersex Variations, Human Rights, and the International

of the Council of Europe (November 29th, 2022, 8:00 PM) Classification of Diseases’ 20 Health and Human Rights 205 (2018)

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subjected such unnecessary cosmetic medical The lifelong pain endured by intersex individuals
interventions in their childhood have had to is felt internally as well. These early corrective
suffer the impacts of the same through surgeries have no guarantee that the sex the
adulthood and do not always have access to doctor assigns to the child will eventually
the facilities to help cope with these coincide402 with the child’s actual gender
hardships 400
. Financial support is often identity. A child develops his/her gender identity
continuously required in cases where the initial during the course of his/her life. By assigning a
forced treatment/surgery does not produce the sex to the child at birth which he/she is made to
desired result and additional believe has been done for his/her own good, the
treatments/surgeries are required to correct the child’s own freedom and right to self-
aberrations created them in the first place. determination to discover his/her identity
Some of the after-effects of these surgeries himself/herself is curtailed. Similarly, this puts
include irreversible nerve damage, infertility, their sexual interests and desires for a particular
incontinence, loss of sexual sensation and type of bodily appearance also in jeopardy.
function as well as the need to be on life-long They are forced to live a life in a body that has
hormone replacement therapy. Examples of been modified according to someone else’s
procedures used to combat these after-effects definition of ‘normal.’ From a legal perspective, it
include further reparative treatments and must be understood that nothing can replace
associated types of health care, practices that the child’s consent403 and any belief’s regarding
include dilation, repeated genital examinations, the child’s best interests by his/her parents,
post-surgery sensitivity testing and medical even if looked upon in light of medical necessity,
photography, to name a few. must not outweigh their right to free and
informed consent.
Sometimes, due to the lack of financial
resources and accessibility to the required, B. Distinctiveness of Intersex Individuals
adequate medical care and support required to
understand and live as in intersex individual, In order to truly understand how intersex
parents’ consent to such cosmetic surgeries individuals are distinct and unique from other
being performed by underqualified doctors who non-binary individuals, it necessary to define
adopt unsafe procedures and methods to ‘cure’ the various other communities intersex
these individuals. In some cases, the repeated individuals commonly get confused with.
insertion of devices into a newly opened vaginal Transgenders have already been defined earlier
cavity in order to perform surgeries such as in this paper. Hijras are commonly referred to as
gonadectomies lead to the need for multiple the ‘third gender.’404 This community derives its
corrective surgeries to be performed during the name from a cultural standpoint rather than a
tender years of the child’s development- both scientific and physiological one. Hijras are most
mental and physical. When these surgeries are commonly born as males however they dress in
performed by people who falsely claim to be feminine ways. They may choose to undergo a
doctors or even by some unscrupulous doctors castration ceremony, the emphasis being on
themselves, they are associated with feelings of their choice to remove their male genitalia as
deep shame and trauma on the victim and an offering to the Bahuchara Mata, a Hindu
have sometimes even been described as a goddess. There however, may be a small
form of sexual abuse . 401 minority of hijras that might actually be born as

402 Supra at 11
403 Supra at 3
400 Jordan-Young RM, Sonksen PH and Karkazis K, ‘Sex, Health, and Athletes’ 404 Harvard Divinity School, The third gender and Hijras,
348 BMJ g2926 at 3 (2014) RPL.HDS.HARVARD.EDU, (15th October 2022, 6:19 PM),
401 Dreger AD, ‘Jarring Bodies: Thoughts on the Display of Unusual Anatomies’ 43 https://rpl.hds.harvard.edu/religion-context/case-studies/gender/third-
Perspectives in Biology and Medicine 161 (2002) gender-and-hijras

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intersex individuals. The defining characteristic traits or even a variety of sex characteristics.
that differentiates the hijra community from the They are also known as individuals with DSD 409-
intersex one is the aspect of choice. The hijra Differences in sex development. However, DSD
concept originated with these individuals and the term ‘hermaphrodite’ must not be used
choosing to leave home and become a part of in common parlance to describe these
the hijra community which typically removes individuals as they have developed a negative
themselves from wider society and teaches its and derogatory connotation over time.
lessons in secret. Traditionally, they have a set Hermaphrodite especially, is a term that is
of duties to perform which include rituals, frowned upon when referenced to the intersex
dances, and other forms of blessings at community as it represents a sort of inferiority,
auspicious Hindu occasions such as births and being also used to describe flowers, animals, or
weddings. It is believed that due to the sacrifice any organism that can produce both male and
of their procreative ability, they have received female reproductive organs.
the blessing of the Goddess to hold incredible
religious powers405. Today however, the III. International Legislative Framework that
community has largely lost its original status in Protects Intersex Individuals
society. Individuals belonging to the hijra
community are often excluded from Over the years, several countries have enacted
employment and education and forced to laws that protect the rights of intersex
resort to prostitution and begging to combat individuals, more particularly, laws that explicitly
the poverty faced by them 406
. protect these individuals from coercive and
forced corrective surgeries that are not
Eunuchs, are commonly referred to as Male to medically necessary. India unfortunately,
Female (MTF) 407
. These individuals are genetic continues to lack a distinct law that specifically
males who are either born without testicles addresses the unique issues faced by intersex
(similar to some intersex individuals), or who, for individuals. The problem in India is that the
various reasons, have them surgically removed. intersex community is placed under the
Historically, eunuchs were believed to be men umbrella legislation that protects
who had their testicles removed for the purpose transgenders- The Transgender Persons
of making them better soldiers. The purpose of (Protection of Rights) Act, 2019. However, on
castration was so that they were not distracted scrutiny of the Act, it is seen that apart from
from their duty or swayed by lust or sexual merely defining ‘persons with intersex
matters. In the Middle East and China, they were variations’ under Section 2(i), the Act makes no
employed mainly as guards or servants in the further provisions that correct the wrongs faced
women’s quarters or harems, and as by the intersex community.
chamberlains 408
to the kings. Eunuchs were,
those individuals who were for most of the time, The judiciary too, until the Arunkumar
forced into castration rather than born without judgement, merged the categories of intersex
testicles. and transgender. Although there do exist
certain similarities between the two, they
The terms that can, however, be associated with remain fundamentally distinct from each other,
intersex individuals are to describe them as each of them facing a unique set of problems.
persons who are born with intersex variations or The NALSA judgement was a leap forward for
the transgender community but did very little to
405 Ibid put an end to the corrective surgeries which
406 Ibid at 18
407 Hermann, M., & Thorstenson, A. ‘A Rare Case of Male‐to‐Eunuch Gender

Dysphoria’ Sexual Medicine, 3(4), 331-333 (2015) 409 Hughes, I. A., Houk, C., Ahmed, S. F., Lee, P. A., & Group, C. ‘Consensus
408 Andrews E. ‘THE ORIENTAL EUNUCHS’ JAMA. XXX(4):173–177 statement on management of intersex disorders’ (Archives of Disease in
(1898) Childhood), 91(7), 554-563 (2006)

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amount to a violation of the human rights of pecuniary punishments for offences412 in

intersex individuals. Due to this lacuna in the contravention of the provisions of the Act
Indian law, it is necessary to look into the laws of (typically a fine of 1000-5000 euros). There also
other countries around the world that exist anti-discriminatory provisions413 that
specifically work towards ensuring that the promote equality and elimination of
human rights of intersex individuals are not harassment. This allows equality of opportunity
violated. Some of the countries that have irrespective of the sex characteristics of the
provisions in their legislations that protect individual. The most notable right that is
intersex individuals are Malta, Chile, Portugal, protected under this Act is the right to bodily
Germany, Iceland, Belgium, Scotland, Denmark, integrity and physical autonomy 414. The Act
France and Uganda. makes it unlawful for medical practitioners or
other professions to conduct medical surgeries
A. The Malta Act and treatments such as sex assignment
treatment or surgical intervention on sex
The Gender Identity, Gender Expression and Sex characteristics of a minor when such treatment
Characteristics Act, 2015 of Malta, by specifically can be deferred until the person is old enough
mentioning three different terminologies in its to give his/her own informed consent.
title, indicates that there exists a difference Additionally, in order to provide support415 to
between these terms. The Act goes on to define intersex individuals throughout their lives in
each of them. Gender identity and sex case of issues that might arise as they advance
characteristics have been discussed earlier in in age (both physical and mental), the Act
this paper. Gender expression410 refers to ‘each states that health services such as counselling,
person’s manifestation of their gender identity, support and individually tailored interventions
and/or the one that is perceived by others.’ It relating to intersex status must be given to
must be understood that although this paper them by experts in the field who are sensitive to
emphasises on the link between sex the unique plight faced by them. These services
characteristics and intersex individuals, it does must be supported by psychologists, medical
not mean that the terms gender expression and practitioners or peer counsellors.
gender identity cannot associated with intersex
individuals as well. To put it plainly, an intersex B. Yogyakarta Principles Plus 10
infant can be born with XX chromosomes but
with the gonads of a man and later will On the international front, the Yogyakarta
recognise and identify as a man (based on the principles plus 10416 are the most comprehensive
strong internal masculine feeling felt by him, set of guidelines that have been formulated for
this being his gender identity) and will thus the protection of intersex individuals by a
dress in a man’s clothing and maybe style his consensus reached between a group of
hair like a man, this being his gender expression. distinguished human rights experts and
academicians including former UN members.
The Act ensures protection of an intersex There have been Indian signatories to these
individual’s right to gender identity as well as principles as well, and they serve as universal,
the right to change his/her gender 411 or first international legally-binding standards to which
name in order to reflect the person’s self- all States are required to comply. These
determined gender identity which he/she might
develop later in life. The Act also provides 412 Ibid note s 11
413 Ibid note s 13
414 Ibid note s 14
415 Ibid note s 15
416 International Commission of Jurists (ICJ), The Yogyakarta Principles Plus 10 -
410 The Gender Identity, Gender Expression and Sex Characteristics Act Additional Principles and State Obligation on the Application of International Human
2015, s 2 Rights Law in Relation to Sexual Orientation, Gender Expression and Sex
411 Ibid note s 4 Characteristics to Complement the Yogyakarta Principles (November 2017)

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principles are however, considered to be soft- as being violative of human rights principles as
law . The initial Yogyakarta principles of 2007
417 418
well as bodily integrity and calls upon
covered human rights in the areas of sexual governments to fight the associated stigma
orientation and gender identity however the and stereotypes that plague society. Some of
Yogyakarta +10 added ten additional principles the principles/duties imposed on the States are
that specifically recognised the unique needs of covered under Principles 30-38 as follows:
intersex people based on the fundamental
understanding of sex characteristics. These  The right to state protection
principles address an intersex individual’s right  Right to legal recognition
to bodily privacy 419
and their right to make  Right to bodily and mental integrity
autonomous choices 420
. One of the  Right to freedom from criminalisation
recommendations put forward in these and sanction on the basis on sexual
principles is to end the registration 421
of the sex orientation, gender identity, gender
at birth in identity documents and as part of expression or sex characteristics
their legal personality while simultaneously  Right to protection from poverty
providing interim arrangements that include a  Right to sanitation
multiplicity of gender markers. Thus, gender is  Right to enjoyment of human rights in
seen as a spectrum where variances in sex relation to information and
characteristics are celebrated rather than seen communication technologies
in black or white. The State is endowed with an  Right to truth
obligation to promote and protect the rights of  Right to practise, protect, preserve and
intersex individuals by ensuring their full revive cultural diversity
equality and actively addressing the problem of
discrimination. C. United Nations Guidelines

The Preamble of the principles422, makes a The departments under the United Nations have
specific differentiation between gender also taken efforts and steps to spread
expression and sex characteristics. The awareness on intersex individuals and their
differentiating factor here is the fact that sex rights. In 2015, the United Nations Free and Equal
characteristics act as a ground that warrants Campaign released a fact-sheet on the rights
protection in case of human right violations. It of intersex people423. This was followed by the
emphasises and recognises that human right first UN Expert Meeting on measures that can be
violations as well as the characteristics and taken to end human rights violations against
populations of individuals on the gender intersex persons. The following year, as a follow-
spectrum vary from one another and are up to the previous efforts, the UN published a
distinct and unique in their own sense. The call to Governments424 all over the world to
principles thus serve as rights to be given to prohibit non-consensual coercive and forced
these individuals irrespective of their sex surgeries including other medically
characteristics or intersex status. Under the unnecessary treatments on intersex children. An
ambit of bodily and mental integrity, Principle 32 education campaign on the rights of intersex
sees the forced and coercive medical practices people was also launched during the UN

417 Thoreson, R.R. ‘Yogyakarta Principles’, The Wiley Blackwell Encyclopedia of

Gender and Sexuality Studies (eds A. Wong, M. Wickramasinghe, r. hoogland 423 United Nations for LGBT Equality, Fact Sheet Intersex, Free & Equal,
and N.A. Naples 2016) UNFE.ORG (29th November, 2022, 8:12 PM), https://www.unfe.org/wp-
418 Yogyakarta Principles, Principles on the application of international human rights content/uploads/2017/05/UNFE-Intersex.pdf
law in relation to sexual orientation and gender identity, (2007) 424 United Nations Human Rights Office of the High Commissioner, Human
419 Ibid note Principle 6 Rights Violations Against Intersex People: A Background Note, OHCHR.ORG (30th
420 Supra at 30 note Principle 32 November, 2022, 7:16 PM), https://www.ohchr.org/en/documents/tools-
421 Supra at 30 note Principle 31 and-resources/background-note-human-rights-violations-against-intersex-
422 Supra at 30 people

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Intersex Awareness Week and a website425 was Convention on the Rights of Child430. This
dedicated solely to spread awareness about provision places a duty on the State to abolish
the plight of intersex individuals which harmful practices that are prejudicial to the
published videos and other educative material. health of children.
The Office of the UN High Commissioner of
Human Rights also made a comment426 which The 26th of October is celebrated globally every
implied that the fear faced by parents/doctors year as Intersex Awareness Day to
of the discrimination likely to be faced by their commemorate the protest of several members
intersex child/patient, can never justify human of the Intersex Society of North America in 1996
right abuses. at an American Academy of Pediatrics (AAP)
meeting that was being held in Boston. This was
Though the above measures refer to specific the first time intersex individuals were speaking
steps taken by the UN organisations towards publicly about the trauma faced by them as a
the providing a solution to the unique problem result of non-consensual genital surgery and
faced by intersex individuals, other human the stigma and isolation that followed them
rights documents of the UN also contain around like a shadow ever since. This protest
provisions that can be interpreted in light of inspired people in the years that followed to
protecting their rights. For example, human voice their human rights concern and spread
rights as per the Universal Declaration of awareness in order to put an end to human
Human Rights 427
under include the freedom to right violations of intersex individuals.
develop as a dignified human being and calls
upon States to rectify human rights violations. D. Other Legislations
The UDHR and the International Covenant on
Civil and Political Rights428 both guarantee the In Germany and Portugal, although intersex
protection against discrimination along with the conditions are not specifically mentioned, the
right to privacy and the right to live a life with law states that no surgeries and treatments
dignity to all human beings. Article 3 of the apart from life-threatening ones are allowed to
UDHR, Article 9 of the ICCPR and Article 17 of the be performed (Portugal) and in Germany 431, only
Convention on the Rights of Persons with those procedures that are considered
Disabilities429 all emphasise on the right to necessary to cure or eliminate a functional
security of a person which includes the freedom disorder… without posing any real threat to the
from injury to the body and mind or bodily and individual’s health at the moment are allowed.
mental integrity. This view can be expanded to The Organisation of Intersex International (OII)
accommodate the fact that forced and in Europe however, does not deem these laws
coercive medical interventions on intersex as protective enough and they are therefore
children violate these very rights. Another working to develop a minimum criteria to help
argument that favours the same is covered determine whether the laws enacted by
under Article 24(3) of the United Nations countries constitute a formal prohibition on
carrying out non-consensual surgeries on
intersex children. These standards are expected
425 Free & Equal, United Nations, ‘United Nations for Intersex Awareness’,
UNFE.ORG (1st December, 2022 5:00 PM), https://unfe.org/intersex- to be unveiled early this year432.
awareness
426 Committee on the Rights of the Child, ‘General Comment No. 14 on the Right

of the Child to Have His or Her Best Interests Taken as a Primary Consideration’ (Art.
3, Para. 1, 2013) 430 UN General Assembly, Convention on the Rights of the Child, 20 November
427 United Nations General Assembly. The Universal Declaration of Human 1989, United Nations, Treaty Series, vol. 1577, p. 3
Rights ( hereinafter referred to as the UDHR). New York: United Nations 431 Lilas Pepy, Malta’s pioneering law on intersex children, Le Monde, (5th

General Assembly (1948) November 2022, 6:00 PM),

428 UN General Assembly, International Covenant on Civil and Political Rights, https://www.lemonde.fr/en/science/article/2022/06/12/malta-s-
United Nations, Treaty Series, vol. 999, p. 171 (16 December 1966) pioneering-law-on-intersex-
(hereinafter referred to as the ICCPR) children_5986507_10.html#:~:text=In%202015%2C%20Malta%20was%20t
429 UN General Assembly, Convention on the Rights of Persons with Disabilities : he,for%20justifying%20any%20medical%20procedure.
resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106 432 Ibid

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The Civil Status Law of 2007433 in Germany impact on the intersex community. Their rights
normally requires that the gender of all children still remain in jeopardy with an exception in the
be documented in the birth register but also State of Tamil Nadu, which after the judgement
allows persons to be identified as neither of the Arunkumar case, put forward an official
female nor male in case, at birth, it is unclear as government order prohibiting the performance
to which sex can be assigned to the child. This of sex reassignment surgeries on intersex
provides room for the right of self- infants and children. The Act also does not
determination of the child to conform to a explicitly recognise the poignant issue faced by
gender identity he/she identifies with later in life. the intersex community of discrimination on the
Similarly, in Spain, the Basque Country Act of basis of sex characteristics. One positive
2012 434
has a provision that deals with non- outcome of the Act has been the fact that
discrimination based on gender identity. intersex individuals have been officially
Although this provision was added in recognised and defined much like in the
recognition of the rights of transgender people, legislation of Scotland.
the same can be extended via interpretation to
intersex individuals as well. Scotland too 435, has Although defining the issue is indeed the first
included intersex issues under its wide umbrella step, further steps need to be taken to solve and
definition of gender identity to extend to those implement the problem of violation of the rights
individuals who are ‘not standard males or of privacy, bodily integrity and self-
females.’ This too however, can prove to be determination of intersex individuals which
problematic as there exists an underlying hint of continue to remain under threat at the hands of
intersex individuals not being ‘standard’ which medical physicians and parents who are still
teeters dangerously close to the edge of seeing swayed by the societal stigma towards intersex
them in a different light, as something individuals. In 2020, the United Nations
abnormal. Committee on Rights of Persons with Disabilities
recommended directly to the Government of
In South Africa a combined and consolidated India that the latter should adopt measures to
reading of two legislations- The Alteration of Sex prevent sex assignment or ‘sex normalising’
Description and Sex Status Act of 2003 and the surgeries as well as bullying and stigmatisation
Promotion of Equality and Prevention of Unfair of intersex children in order to ensure the rights
Discrimination Act of 2000 define intersex to preserve their physical and mental integrity.
persons and insert this definition within the However, unfortunately, to this day, the Central
general categories of ‘sex’ thereby prohibiting Government has failed to take steps to
discrimination of intersex individuals as among implement any of these recommendations.
the typical binary categories of men and There was however, one positive outcome. The
women. Delhi Commission for Protection of Child Rights,
in 2021, recommended that the Delhi
IV. Indian Legislative Framework Government ban the practice of performing
medically unnecessary sex-selective surgeries
As mentioned earlier in the paper, the only on intersex infants following suit of the
mention of the term ‘intersex’ in any Indian precedent set in the Arunkumar judgement.
legislation has been in the Transgender Act and
that too, has failed to have any real positive The intersex community still however remains
invisible in all practicality, the most obvious
433 Civil Status Act (PStG) (BGBl. I S. 122) s 21(1) example of the same being that their
434 Rivera, O. & Sancho, F. & Sánchez, M. & McCormick, A. & Berlo, A. &
Barrios, Á & Benito, J. & Yanguas, José & Sebastián, I. AAL summit 2012:
population is not clearly reflected in the 2011
The Basque country declaration. Gerontechnology (2013) census of India nor the population projections
435 LGBTI and gender recognition, Scottish Government, Riaghaltas na h-

Alba

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for India and States for the years 2011-2036. The National Statistical Office is tasked with the
These records continue to show the expected responsibility of conducting nationwide sample
projections wholly with respect to male and surveys. However, they have still not conducted
females. The 2011 census is the census that is any surveys on intersex persons and the issues
followed today in India as census operations faced by them. The official recognition of
are conducted once every ten years. The 2021 transgender individuals themselves is in its
census was postponed due to the COVID-19 nascent stage and so the recognition of intersex
pandemic and even today, as of January 2023, individuals as a distinct and separate category
the census has still not been updated. There is rather than grouped under the transgender
hope that after the passage of the Act in 2019, umbrella might not take place in a hurry. It is
the Census Division will take into consideration only after these individuals are recognised as
individuals that fall under the non-binary distinct and different from transgenders can
category, such as intersex individuals, in the there be any hope for specific nation-wide laws
computation of the Nation’s population. In a to be made to protect their rights from the
notification published by the Ministry of Social specific human right violations faced by them.
Justice and Empowerment regarding the
Welfare of Transgenders, the Registrar General Another issue that arises due to the non-official
of India, during enumeration of the Census of recognition of intersex individuals in India is that
2011 provided three codes for enumeration- there exists an inaccurate account of the
Male-1, Female-2 and Other-3. However, this statistics of crimes that have been committed
notification expressly stated that the Census of to them. These corrective surgeries should be
India does not collect any data specifically on criminalised from taking place altogether as
‘transgenders’ and as such ‘Other’ was used to they are often performed on infants with
include any person who desires to record their parental consent and due to this they cannot
sex under a category that is not ‘male’ or be reported unless the child is old enough to
‘female’. understand the gravity of what he/she had to
endure as an infant and gain the courage to
V. Issues that continue to be faced by the report such instances himself/herself. This could
Indian Intersex Community take years and such delayed reporting would
not be effective in curtailing the same surgeries
This lack of choice given to the intersex from happening to countless infants in the
community, treated within the transgender interim period.
community, the latter estimated to be a total of
4.88 lakh as per the 2011 census, denies distinct VI. Judicial Precedents
visibility and recognition of an entire community
of individuals. This further provides detrimental Prior to the celebrated Arunkumar judgement,
hardships to intersex individuals who, due to there have been a handful of cases handled by
their lack of visibility in official data struggle in the Indian judiciary that have made references
accessing various social benefits. This issue to intersex individuals. However, most of these
came to the forefront especially for the references have been misplaced due to a faulty
transgender community during the COVID-19 understanding of what being intersex truly
pandemic wherein the promised money means. Some articles436 regarding the lack of
transfers via banks and ration supplies from the judicial intervention towards protection of the
government were never materialised as these
individuals have no official documentation to
begin with. 436 Atreyo Banerjee, Shardha Rajam, Indian Courts Must Understand What Being
Intersex Really Means, Smashboard, (1st January, 2023, 9:00 PM),
https://smashboard.org/indian-courts-must-understand-what-being-intersex-
really-means/

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rights of intersex individuals have even termed Constitutionally protected. Although the Court
this misconstruction as ‘judicial fumbling.’ clubbed hermaphrodites, transgenders, and
eunuchs in the same category, which is clearly
A. Pinki Pramanik v. State of W.B erroneous, they declared that the Constitution
was meant for all persons/living beings of the
The case of Pinki Pramanik v. State of W.B 437, human race in our country. Therefore, whether
dealt with whether an intersex person could be an individual identifies as transgender or
convicted on the charge of sexual assault and hermaphrodite is irrelevant to the fact that they
rape. Upon arresting the plaintiff, she was made are still citizens of this country by virtue of being
to undergo multiple medical examinations in born within the territory of India. Fundamental
order to ‘determine’ her gender, the results of rights are granted to all citizens and the
which indicated that she was a male pseudo- petitioner, being a transgender citizen is also
hermaphrodite who suffered from disorder of granted protection of her rights. The Court also
sexual development. The judgement of the briefly stated the difference between sex and
Calcutta High Court implied that since the gender but made no explicit mention of the
provisions in the Indian Penal Code, 1860 were term ‘intersex.’
not gender-neutral in nature, or in other words,
complaints of sexual offences can only be C. Nangai v. The Superintendent of Police
made by women against men, medical
examinations were necessary to determine In the case of Nangai v. The Superintendent of
whether such charges could be brought against Police439, the Court recognised that the
the plaintiff in the first place. The Court compulsion of an individual to undergo medical
concluded that although her medical reports examinations in order to determine his/her
showed that she was intersex, she was not gender in the absence of a legislation that
capable of ‘penetrative intercourse’ and as a mandated the same amounted to a violation of
result could not be guilty of the crime of rape. the person’s fundamental rights under Article 21
This judgement was problematic in nature as of the Indian Constitution. Forcing an individual,
here too, intersex individuals are seen as (in this case, the petitioner), to accept her
different from normal human beings and stand identity based on a medical declaration rather
beyond the reach of the existing law. This lack of than what she herself identifies as by virtue of
inclusion of intersex persons in the eyes of the her own free will, amounts to a violation of her
law can lead to great injustice in cases where right to equality under Article 14, right to non-
these individuals actually commit non- discrimination under Article 15, right to freedom
consensual sexual intercourse with other of speech and expression under Article 19(1)(a)
persons. They can escape from the criminal as well as the right to life and personal liberty
liability under the misguided belief that they under Article 21 guaranteed by Constitution of
lack the capability to have sexual intercourse India.
due to their non-binary sex characteristics.
D. The NALSA Judgment
B. Ganga Kumari v. State of Rajasthan
In the NALSA judgement, Justice GR
In the case of Ganga Kumari v. State of Swaminathan made a significant observation
Rajasthan 438
, the Court deliberated upon with respect to intersex individuals. He stated
whether the petitioner, who identified as sex that, “When a child is born it is usually endowed
neutral could claim that her rights were with male genitalia or female genitalia. But
there are children who are born with a genitalia
Pinki Pramanik v. State of W.B., 2014 SCC OnLine Cal 18832
437
438Ganga Kumari v. State of Rajasthan & Ors. D.B Civil Writ Petition No.
10672/2021 439 Nangai v. Superintendent of Police, 2014 SCC OnLine Mad 988

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that belongs to neither category. They are in question in the hands of a public official
known as intersex children. They must be given rather than the individual himself/herself thus
their time and space to find their true gender depriving the latter of their right to self-
identity… consent of the parent cannot be determination.
considered as the consent of the child.’
However, this is the only effort made in the By interpretation however, we can extend some
judgement to highlight the plight faced by of the observations made by the Court in the
intersex individuals. In fact, as the judgement NALSA judgement with respect to transgender
progresses, there is a grave error made wherein individuals to be specifically attributed to the
the Court synonymises the terms ‘intersex’ and protection of the fundamental rights of intersex
‘eunuch’ when the two are entirely different. This individuals as well. For example, the mention of
lapse of understanding has ramifications in the ‘person’ in Articles 14 and 21 is gender neutral in
form of the lack of legal interventions that nature. Similarly, the mention of ‘sex’ in Articles
address the specific needs of the intersex 15 and 16 covers hijras and transgenders as well
community. It also omits the fundamental as those individuals who consider themselves
concern of the intersex community which as neither a binary male or female, thereby
revolves around the pathologisation of their expanding the field to possibly include those
bodies during their infancy and childhood. After who identify as intersex. Further, the right to
the judgement, these corrective medical freedom of speech and expression under Article
interventions and treatments continued to take 19(1)(a) can be extended to include a citizen’s
place in order to make the intersex infant right to expression of his/her self-identified
conform to a binary body. Another gender.
misconceived move by the Court was made
when it clubbed hijras, transgenders, eunuchs Articles 253 and 51 allow international law to be
and intersex people under the bracket of ‘third made applicable in those scenarios where
gender’ under law. Although this might help with Indian law is absent or lacking to adequately
making society recognise and acknowledge the deal with the situation. Thus, the international
existence of non-binary individuals, it does not principles and laws that have been discussed
provide any legal remedy for the human right earlier in the paper can be applied and
violations faced specifically by intersex integrated into Indian legislation as well. This
community. would be an effective step to tackle the issue of
legal protection of intersex individuals in India.
The current law in India, after the NALSA
judgement allows individuals to change the sex Articles 14, 19 and 21, 32 and 226 of the
assigned to them at birth in their official Constitution enable the process of judicial
documents. However, the birth registration laws activism. According to this process,
in India only allow this to happen on the Constitutional courts in India must not remain
condition that the entry of such sex was a silent as a mute spectator when they see
typographical error. Further, according to instances of blatant violations of human rights
Section 15 of the Registration of Births and of individuals (in this case, intersex individuals)
Deaths Act of 1969, the original entry made in especially when such rights have achieved
the birth certificate can be appropriately universal recognition and acceptance. Judicial
corrected or cancelled in accordance with the activism calls for purposive interpretation of
rules made by the State Government only if the provisions of law in light of the doctrine of rule of
Registrar is satisfied as to the necessity of the law which frowns upon arbitrariness and
same. In effect, this once again leaves the discrimination that is not based on intelligible
decision of determining the sex of the individual differentia. The doctrine of rule of law demands
protection of the rights of individual human

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beings and states that such rights must be E. Jackuline Mary v. Superintendent of Police
guaranteed to each and every one of them. The
percentage of the population that is composed In the case of Jackuline Mary v. Superintendent
of these marginalised communities is irrelevant of Police440, the issue revolved around whether
in the deciding the question as to whether/not the termination of service of a woman, who
they are holders of human rights. applied to the post of Woman Police Constable
was sustainable based on the fact that her
In the NALSA case, Justice Radhakrishnan stated medical check-up results showed that she was
that intersex individuals along with those transgender. She failed to disclose this fact
individuals (hijras, emasculated and non- during the application to the post in question.
emasculated men) who lacked reproductive The Court did observe that the NALSA
capabilities of either a man or a woman and judgement failed to provide a clear definition of
rather, consider themselves to be a ‘third the term ‘transgender’, but nonetheless
gender’. affirmed the same insofar as to drive the point
home that all persons have a fundamental right
Justice Sikri, in his opinion also recognised the to self-identity with regards to their gender
existence of these marginalised individuals, under Article 19(1)(a) of the Constitution. The
however small in number, in contrast to the Court however, stated that so long as the
typical man/woman population, who are may petitioner declared her gender as female, she
be born with bodies that incorporate would be treated as the same until the State
both/certain aspects of both male or female enacted a law that recognised FTM (female to
physiology. He went on to emphasise on the male) individuals, such as herself, as
universal recognition of human rights as being ‘transgender’. In lieu of the same, the Court
rights that ‘belong’ to every person. This does directed the State authorities to ensure that
not depend on the specifics of the individual nor steps were taken to provide separate facilities
on the relationship between the right-holder for FTM individuals. What was distinct in this
and right-grantor. They are pre-existing rights judgement as compared to the previous ones
that exist regardless of whether they have was that the Court correctly stated that intersex
actually been granted or recognised by the individuals belong under the umbrella of
socio-legal systems and institutions prevailing ‘transsexuals’ rather than ‘transgenders’, which
in the society. He also specifically emphasises is closer to the truth than clubbing intersex
that the discussions made in the judgement individuals under the ambit of transgender.
regarding conferring of a distinct identity are
restrictive in nature and are applicable only in F. The Arunkumar Judgment
light of the transgender community (hijras). This
line in the judgement is supposed to bring The Arunkumar judgement was the first to
clarity but in reality, it does just the opposite by specifically highlight the unique plight faced by
causing even more confusion. This is because, intersex individuals as being distinct from those
in the prior paragraphs, intersex individuals faced by other non-binary communities such
have also been described as hijras and thus the as transgenders. This judgement also
distinctiveness of the intersex community materialised into actual efforts taken by the
continued to remain invisible. Government of Tamil Nadu to curb the menace
of human rights violations caused to intersex
infants and children as a result of non-
consensual corrective and coercive medical
interventions. The facts of the case involved a

440 Jackuline Mary v. Superintendent of Police (2014) SCC OnLine Mad 987

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marriage between a male and a transwoman was perfectly legal in nature as the written
wherein the registering authority refused to consent of the parent/guardian of the infant is
register the marriage. The justification give by taken before conducting the surgery. It was in
the authority for its actions was that on the response to this that the Supreme Court
wedding day, the bride can only be a woman reiterated what was stated previously by the
and a transwoman cannot be considered as a World Health Organisation, that the consent of
woman. The Court highlighted that sex and the child is pivotal in nature and cannot be
gender are not the same and that according to replaced by that of the parent/guardian. The
Article 14 of the Constitution, States shall not WHO in its report also called for deferring
deny ‘any person’ equality before the law and intersex genital mutilation (IGM) until the
equal protection of the laws within the territory individual is old enough to make these
of India. Such protection would apply to decisions for themselves.
transgenders as well as other non-binary
individuals, thus including within its scope, The Court, in order to make more effective the
intersex individuals. mandate put forward in the NALSA case about
forced medical procedures not being a valid
In light of the Constitution being an enabling requirement for legal recognition of a person’s
document, the Court stated that the expression gender identity, found it necessary to direct the
of ‘bride’ under S.5 of the Hindu Marriage Act, Government of Tamil Nadu to issue a
1955 will include intersex as well as transgender Government Order reiterating the same. It also
persons who identify as a woman. This separate fixed a responsibility on the Government to
mention of both ‘intersex’ as well as launch a sustained awareness campaign in
‘transgender’ indicate the recognition of the two order to help the parents of intersex children
as distinct identities and not clubbed under the understand that the status of their child is not a
same umbrella of ‘other gender’. matter of embarrassment or shame.

A pivotal part of this judgement was in the VII. Conclusion

reference made by the Court to a complaint
written to the National Human Rights It is pertinent that society understands and
Commission by Gopi Shankar, an intersex rights acknowledges that intersex rights and human
activist regarding the necessity to give time and rights are intertwined and cannot be
space to those children who are born with considered in isolation of each other. Human
genitalia that completely belong neither to the rights belong to every individual regardless of
female or male category, in order for such their specifics. Such rights cannot be granted to
children to find their true gender identity. In people or taken away by them as they are
order to facilitate this, Shankar prayed that the moral, pre-legal rights. By officially recognising
parents of such children, on the advise of intersex individuals as a distinct and unique
medical physicians, do not forcefully make the category in themselves rather than grouping
infant undergo sex reassignment surgery (SRS). them under the umbrella of ‘transgender’
In effect, Shankar prayed that the NHRC ban individuals, their human rights can be
forced selective surgeries and other forms of effectively protected. On recognition, they can
medical abuses from taking place on intersex finally be included in the census calculation of
babies in India, in recognition of their countries across the world which will allow them
fundamental rights. The response from the to be able to contribute better to society. They
Health Ministry however was disheartening and must also be included from the formal
merely served as a justification behind the consultation processes conducted by the
performance of such surgeries stating that it various authorities while making various legal
and policy decisions so that their struggles are

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voiced and heard. The ripple effect of the same

will also improve their visibility and therefore
their access to health services, education,
public services and employment in the exercise
of the fundamental rights in the Constitution
that guarantee them the same. Globally,
intersex rights activists such as Mx. Anunnaki
Ray Marquez, Dr.Tiger Devore, Pidgeon Pagonis
and Gopi Shankar of Madurai continue to fight
for the rights of intersex individuals all around
the world. Organisations such as InterACT (in
the USA), OII (Europe) and Amnesty
International specifically issue guidelines and
seek to advise the law-making authorities of
their respective regions on measures and
principles that can be adopted to protect the
rights of intersex individuals.

VIII. Scope and Limitations

The scarcity of accurate statistics along with

the lack of awareness of intersex as a
community itself have proven to be hindrances
in conducting research, especially from an
Indian perspective to assess the efficacy of the
prevailing laws and specific instances of human
rights violations of intersex individuals across
the country. The scope for further research can
include the issue of abortion of intersex foetuses
in light of the rights of an unborn child as well as
an in-depth analysis on how effective existing
international legislations and policies have
been in protecting the rights of intersex
individuals.

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