'Gender' & 'Sex' Distinct Concepts; Right To Choose Gender Is Vested With The Individual : Kerala High Court

The Kerala High Court on Monday embarked upon an elaborate medico-legal discussion on the two concepts of 'gender' and 'sex', in an interesting decision raising the question as to whether the parents of a child with ambiguous genitalia would have the right to decide the gender of the child without the latter's consent and ignorant of the child's orientation.

The Single Judge Bench of Justice V.G. Arun observed that while the terms 'gender' and 'sex' were often used interchangeably in casual conversation, they were, in actuality, two distinct concepts.

"Sex refers to the biological characteristics of a person, particularly in relation to their reproductive anatomy and chromosomal composition. Gender, on the other hand, is a social and cultural construct that encompasses the roles, behaviours, expectations and identities associated with being male-female or non-binary," the Court observed. 

The Court made the above observations while considering a plea by the parents of a child born with ambiguous genitalia, seeking the Court's permission to conduct a genital reconstructive surgery for raising the child as a female. The child was diagnosed of 'Congenital Adrenal Hyperplasia', and was undergoing treatment for the same. The doctors advised genital reconstructive surgery for the child. The parents of the child were aggrieved that despite having approached various experts, none of the doctors were prepared to conduct the surgery without orders from the competent Court. They approached the Court placing reliance upon the Karyotype Report-46XX, which was indicative of the child being a female.

The Court opined that 'Ambiguous genitalia' is a rare condition, identified in less than ten lakh persons out of a hundred and thirty crores.

The Court further noted that both mythology and history were replete with the stories of persons having both genitalia. It took note of an article by Anne Fausto-Sterling wherein the author had observed that 'hermaphrodites' who literally embody both sexes, are vested with the 'irritating ability' to "live sometimes as one sex and sometimes the other, thus raising the spectre of homosexuality". 

The Court observed that decision in National Legal Services Authority v Union of India & Ors. (2014) by the Apex Court was a path-breaking one, which was instrumental in challenging the 'gender binary straitjacket', and legally recognized and protected gender variations. 

"As observed by the Supreme Court, democracy requires its citizenry to respect and develop the free spirit of human beings, which is responsible for all progress in human history. If democracy is based on recognition of the individuality and dignity of man, the right of a human being to choose his/her sex or gender identity, which is one of the most basic aspects of self-determination, dignity and freedom has to be recognized. Conversely, intervention with an individual's right to choose sex or identity will definitely be an intrusion into that person's privacy and an affront to his/her dignity and freedom," the Court noted. 

It was of the opinion that the concept of privacy in the context of individual choice, regardless of it being with respect to 'gender' or 'sex' was well-settled in the Puttaswamy judgment [Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors. (2017)].

It further perused the provisions of the Transgender Persons (Protection of Rights) Act, 2019, and went on to note that, 

"...it is beyond cavil that the right to choose gender is vested with the individual concerned and no one else, not even the court".

A perusal of the approach adopted by other countries in the world towards gender reconstructive surgeries also revealed to the Court that only a few countries had adopted regulations either permitting or regulating genital reconstruction/affirmation surgeries and the age of consent also varied regarding the same. Additionally, the Court noted that United Nations Convention on the Rights of the Children (UNCRC) has also called upon the Member States to ensure non-discrimination against children because of intersex condition, and to repeal all laws discriminating against individuals on the basis of their sexual orientation, gender identity or intersex status. 

The Court also took note of the article on ‘Protecting the Rights of Children with Intersex Conditions from Non-consensual Gender Conforming Medical Interventions’ published in Volume 27 of the Medical Law Review, which stated that surgical interventions were unnecessary, and could result in irreversible mutilation of children's bodies.

Accordingly, the Court in this case took the view that since the parents were seeking the permission of the Court to conduct non-consensual sex affirmative surgery, mere reliance on the Karyotype-46XX report of chromosomal analysis for requesting the same would not be sufficient, since the possibility of a child with Karyotype-46XX developing male like tendencies in adulthood could not be ruled out. 

"On careful analysis of the relevant factors and consideration of the rights of the parents and the child, I find that, grant of permission for conducting genital reconstructive surgery would impinge the rights guaranteed under Articles 14, 19 and 21 of the Constitution of India and conduct of the surgery without consent would violate the child's dignity and privacy. Granting such permission may also result in severe emotional and psychological issues if, on attaining adolescence, the child develops orientation towards the gender, other than the one to which the child was converted through surgical intervention," the Court declared. 

It however added that such intervention could be permitted if recommended by a duly constituted medical board, and proceeded to issue a slew of directions for constituting a State Level Multidisciplinary Committee comprising of experts, which shall examine requests for performing sex selective surgeries.

The Court further directed the said Committee to examine the petitioners' child within two months and decide whether the child was facing any life threatening situation by reason of the ambiguous genitalia, and grant permission for the surgery if the said question is answered in the affirmative.