Intersex individuals, born with physical or biological sex characteristics that do not fit typical definitions of male or female, continue to face numerous challenges, including non-consensual surgeries, lack of recognition, and misclassification as transgender or hijra. In India, the struggle of intersex individuals is particularly acute, with a lack of awareness, education, and recognition perpetuating the stigma and marginalisation.
The science of intersex is complex, encompassing a range of variations in sex characteristics, including chromosomes, gonads, sex hormones, and genitalia. According to the World Health Organization (WHO), approximately 1.7% of the global population is born with intersex traits, although this figure may be higher due to underreporting. Intersex conditions can arise from genetic, hormonal, or environmental factors, and may manifest in various ways, such as chromosomal variations, gonadal variations, hormonal variations, and genital variations. For example, Congenital Adrenal Hyperplasia (CAH) is a common intersex condition, where the adrenal glands produce excessive amounts of androgens, leading to the development of male characteristics in females.
Understanding intersex
Intersex refers to sex characteristics of a person. The distinction between sex, gender, and sex characteristics is often misunderstood, leading to confusion and controversy, particularly in the context of intersex individuals. Intersex traits refer to physical or biological sex characteristics that do not fit typical definitions of male or female.
Sex characteristics encompass the physical and biological attributes that define an individual’s sex, including chromosomes, gonads, sex hormones, and genitalia. Intersex traits can manifest in various ways, such as hyperandrogenism, a condition characterised by elevated levels of testosterone. This condition has been the subject of controversy in the sports world, where female athletes with intersex traits have faced challenges in competing in women’s events.
The concept of sex identity refers to an individual’s established birth identity as male or female, which may or may not align with their sex characteristics. In contrast, gender identity refers to an individual’s internal sense of being a man, woman, non-binary, or something else, shaped by cultural, social, and personal factors. Interestingly, the term “gender” is a relatively recent concept, coined by sexologist John Money in the 1950s. Money introduced the term “gender role” to describe the social and cultural expectations associated with being male or female. Over time, the concept of gender has evolved to encompass a broader understanding of identity, expression, and experience.
However, the distinction between sex and gender is not always clear-cut, and the two terms are often used interchangeably. This conflation can lead to confusion and misunderstandings, particularly in the context of intersex individuals.
Intersex athletes
The complexities of sex, gender, and sex characteristics are particularly evident in the context of intersex athletes. Regulatory bodies, such as the International Association of Athletics Federations (IAAF), have implemented rules governing the participation of female athletes with intersex traits in women’s events. These rules require female intersex athletes to undergo medical tests and treatments to reduce their testosterone levels, in order to be eligible to compete. These rules have been criticised for being discriminatory and invasive, and for failing to recognise the complexities of intersex traits.
Experts argue that a more nuanced approach is necessary, one that takes into account the diverse experiences of intersex individuals and promotes inclusivity and respect. Despite the diversity of intersex experiences, many individuals face similar challenges, including non-consensual medical interventions and social stigma. Non-consensual surgeries and medical interventions can cause significant harm, both physically and psychologically. The medical community has a crucial role to play in addressing the issues faced by intersex individuals, and prioritising their bodily autonomy and well-being.
Medical ethics
The medical ethics surrounding intersex individuals are complex and multifaceted. The principles of autonomy, beneficence, non-maleficence, and justice must be carefully considered when providing medical care to intersex individuals. The American Academy of Pediatrics (AAP), WHO, and other medical organisations have acknowledged the harm caused by non-consensual surgeries and recommend a more nuanced approach, prioritising the individual’s well-being and autonomy.
In India, the medical community remains largely unaware of the issues faced by intersex individuals. There is a significant lack of awareness and education among medical professionals, which can lead to misdiagnosis, inappropriate treatment, and further marginalisation. Providing training and resources to medical professionals is essential to ensure that they can provide informed and compassionate care to intersex individuals.
Prioritising the autonomy and well-being of intersex individuals is essential to ensure that they receive appropriate medical care and are protected from harm. The Indian government must take a comprehensive approach to address the issues faced by intersex individuals, including providing education and awareness, reforming medical practices and policies, and ensuring legal recognition and protection.
In recent years, there has been a growing recognition of the need to reform medical practices and policies related to intersex individuals.
Countries, such as Australia, Germany, and Malta, have already recognised intersex as a legitimate category, providing a model for India to follow. In Australia, for example, intersex individuals can choose to identify as intersex on their passport, while in Germany, intersex individuals are protected from non-consensual medical interventions.
The Madras High Court’s landmark judgment in April 2019, banning non-essential sex-selective surgeries on intersex infants, was a significant milestone in the fight for intersex rights in India. The court’s direction was reinforced by a government order in August 2019, aimed at implementing the ban. However, despite these efforts, the Tamil Nadu government’s failure to implement the government order has led to a lack of accountability and enforcement.
Alarmingly, more than 500 infants born with intersex traits underwent sex-selective surgeries in Tamil Nadu from 2020 to 2024. More than 40 intersex infants underwent surgeries at the Government Hospital in Madurai alone, highlighting the egregious failure to uphold the ban and protect the rights of intersex individuals. This underscores the need for increased awareness, education, and training among medical professionals, as well as the importance of implementing policies that protect the rights of intersex individuals.
Furthermore, the Tamil Nadu government’s inaction in constituting a high-level committee, as mandated by the Tamil Nadu government order, has exacerbated the issue. This committee was intended to provide a platform for intersex individuals, experts, and stakeholders to discuss and address the challenges faced by intersex individuals in Tamil Nadu. It has resulted in a lack of oversight and accountability, allowing harmful practices to continue unchecked.
Lack of response to PIL
The Indian government’s repeated failure to respond to a critical Public Interest Litigation (PIL) filed by me at the Supreme Court of India is glaring in this regard. Despite four opportunities, the government has neglected to provide a response, with the most recent instance occurring on February 3. This PIL, Gopi Shankar M. vs Union of India, seeks to address long-standing issues faced by intersex individuals in India. The petition demands recognition of intersex individuals, an end to non-consensual surgeries, and increased awareness and education about intersex issues.
On April 8, 2024, a three-judge bench led by Chief Justice D.Y. Chandrachud served notices to over seven government departments and agencies, emphasising the importance of the government’s response in determining the future of intersex individuals in India.
By acknowledging intersex as a legitimate category, the government can ensure that intersex individuals are accurately represented in the census, have access to necessary medical care, and are protected from discrimination and violence. The government’s response will be crucial in shaping the lives of intersex individuals in India.
Inclusion in Census
The inclusion of intersex individuals in the Census and other official documents is essential to ensure that they are counted and recognised. In Kenya, for example, intersex individuals are now recognised and protected under the law, with the option to register their gender as intersex on their birth certificates. Whereas in India, the Registration of Birth and Death Act, 1969, is a critical piece of legislation that governs the registration of births and deaths. However, this Act has a significant flaw — it excludes intersex individuals. The Act requires that every birth and death be registered, and it mandates that the sex of the individual be recorded as either male or female. This binary sex classification system excludes intersex individuals, who do not fit into the traditional male/female dichotomy.
As a result, intersex individuals face significant challenges when trying to register their births or deaths. They are often forced to choose between male and female, which can be a difficult and traumatic experience. This exclusion also perpetuates the erasure of intersex individuals and their experiences.
Furthermore, the exclusion of intersex individuals from this act has far-reaching consequences. It can lead to difficulties in accessing essential services, such as education, healthcare, and employment, which often require proof of identity and sex. It is essential to amend the Registration of Birth and Death Act, 1969, to include a new option for intersex individuals.
Additionally, the Indian government must take steps to educate and sensitise officials responsible for registering births and deaths about intersex issues. This would help to reduce the stigma and trauma associated with the registration process.
The fight for intersex rights in India is a complex and multifaceted issue, requiring a comprehensive approach to address the medical, social, and legal challenges faced by intersex individuals. By prioritising the autonomy and well-being of intersex individuals, the Indian government can ensure their constitutional rights also that they receive appropriate medical care, are protected from discrimination and violence, and are recognised and valued as equal Indian citizens.
(Gopi Shankar Madurai is India’s first openly intersex Statutory Authority, appointed by the Government of India in the Ministry of Social Justice and Empowerment via a Gazette Extraordinary notification in 2020. [email protected] )
Published – February 14, 2025 05:24 pm IST