Home > Recent Judgements > Intersex Persons Should Not Be Categorised as Transgender: Supreme Court to Examine Structural Gaps in Law and Policy
Dec 17- 2025
Intersex Persons Should Not Be Categorised as Transgender: Supreme Court to Examine Structural Gaps in Law and Policy
GOPI SHANKAR M V. UNION OF INDIA
Introduction
In a significant public interest litigation raising foundational questions about identity, biology, and constitutional recognition, the Supreme Court of India is set to examine whether intersex persons have been incorrectly subsumed under the transgender category in Indian law and policy. The petition calls for a clear legal distinction between sex characteristics and gender identity, arguing that conflation of the two has resulted in systemic invisibility and inadequate protection of intersex persons.
On the administrative side, the Supreme Court acknowledged the importance of the issues raised. While directing that the matter be placed before a larger bench, the Chief Justice remarked that it is “a good petition”, signalling the Court’s willingness to engage with the complex constitutional and human rights questions involved.
Background of the Petition
The PIL was filed by Gopi Shankar M V, an intersex person and rights activist, seeking comprehensive legal reforms for persons with diverse gender identities, gender expressions, and sex characteristics (GIESC), with particular emphasis on intersex persons.
Notice in the matter was issued on April 4, 2024, though the plea remained unlisted thereafter until it was taken up recently and directed to be heard by a three-judge bench comprising Chief Justice Surya Kant and Justice Joymalya Bagchi.
The petition urges the Supreme Court to revisit and clarify long-standing ambiguities in Indian jurisprudence relating to “sex” and “gender”, contending that the lack of conceptual clarity has deeply affected legislative drafting, executive action, and judicial interpretation.
Core Legal Issue: Distinction Between Sex and Gender
At the heart of the petition lies a fundamental assertion: sex identity and gender identity are distinct concepts and cannot be used interchangeably. According to the petitioner, Indian law has repeatedly failed to acknowledge this difference, most notably in the landmark NALSA V. UNION OF INDIA (2014) judgment.
The plea challenges certain observations in NALSA, arguing that by treating “transgender” as an umbrella term and using the expression “third gender”, the judgment inadvertently collapsed diverse identities particularly intersex persons into a category that does not reflect biological realities.
As stated in the petition:
“This Hon’ble Court did not differentiate between ‘Sex identity’ and ‘Gender identity’ and used the term ‘third gender’ which is neither scientific nor legal. This Hon’ble Court has erred in defining every other identity apart from ‘Male’ and ‘Female’ as ‘Transgender persons’ and every transgender as ‘third Gender’. This definition is unscientific and illegal as there is difference between ‘Sex’ and ‘Gender’”
The petitioner argues that unless this conceptual distinction is judicially clarified, effective and meaningful policy-making for persons with diverse sex characteristics will remain impossible.
Intersex Persons: Biological Realities and Legal Erasure
The petition emphasises that intersex persons are born with sex characteristics that do not fit typical binary notions of male or female bodies, making their concerns fundamentally biological and medical in nature rather than issues of gender expression or identity.
By clubbing intersex persons with transgender persons under existing legal frameworks, the petition contends that:
- The specific medical needs of intersex persons are ignored
- Safeguards for intersex infants and children are diluted
- Identity erasure occurs at the level of law, data, and policy
This conflation, according to the petitioner, has resulted in structural discrimination, particularly in healthcare, documentation, and social welfare schemes.
Medical Interventions on Intersex Infants and Children
One of the most critical aspects of the petition relates to non-consensual and irreversible medical interventions on intersex infants and children. The petitioner has cited instances of surgeries performed on intersex newborns and minors, including reports of 40 intersex infants and children undergoing surgeries at Government Rajaji Hospital, Madurai during 2022–2023.
The plea highlights the absence of a uniform national policy governing such medical interventions, noting that hospitals across India follow arbitrary and inconsistent practices.
It states:
“Most of the hospitals across the country are clueless regarding how to deal with such a situation in most of the cases, hospitals across the country are adopting highly arbitrary medical practices.”
The petitioner seeks a legislative mechanism to regulate medical interventions on intersex infants and children, permitting surgery only in life-threatening situations, and deferring irreversible decisions until the individual can provide informed consent.
Challenge to the Transgender Persons (Protection of Rights) Act, 2019
The petition directly challenges Section 2(k) of the Transgender Persons (Protection of Rights) Act, 2019, which includes “persons with intersex variations” within the definition of a “transgender person”.
According to the petitioner, this definition is: scientifically flawed, constitutionally unsustainable, and based on a misunderstanding of sex versus gender. The plea argues that being intersex is a matter of sex characteristics, not gender identity, and equating the two results in discrimination, misclassification, and denial of appropriate protections.
Objections have also been raised to provisions dealing with: Identity certificates, Residence rights, and Treatment of minors. The petition asserts that children cannot be classified as transgender, and that parents should not be permitted to consent to irreversible medical procedures on intersex children.
Birth Registration, Census, and Data Deficit
Another major concern raised relates to birth and death registration and census practices. The petition notes that official forms use the category “gender” instead of “sex” and offer only “male”, “female”, and “transgender” as options.
According to the petitioner, this framework:
- Makes accurate recording of intersex persons impossible
- Leads to absence of reliable national data
- Severely impacts evidence-based policy-making
The petition seeks amendments to the Registration of Births and Deaths Act, 1969 and changes to census frameworks to allow for proper recording of sex characteristics, including intersex categories.
Social Inclusion, Education, Employment, and Reservation
The plea also addresses broader issues of social inclusion, pointing out that intersex persons face challenges distinct from those faced by individuals with diverse sexual orientations or gender expressions.
It highlights the lack of:
- Inclusion in schools and colleges
- Equal access to employment opportunities
- Appropriate reservation or affirmative action frameworks
The petition notes that admission and application forms routinely force individuals to choose between male and female, leading to exclusion, stigma, and identity-related harm.
Call for a National Statutory Body
Finally, the petitioner has sought the establishment of a national-level regulatory or statutory body for the protection of the rights of persons with diverse gender identities, expressions, and sex characteristics.
The plea argues that the National Council for Transgender Persons is inadequate in terms of: Powers, Funding, Infrastructure, and Enforcement capability. It seeks either the reconstitution of the existing Council or its replacement with a broader commission vested with effective statutory authority.
Conclusion
The petition in GOPI SHANKAR M V. V. UNION OF INDIA raises deeply consequential questions about identity, bodily autonomy, medical ethics, and constitutional recognition. At stake is not merely terminological clarity, but the lived realities of intersex persons who remain largely invisible within India’s legal and policy frameworks.
With the Supreme Court acknowledging the seriousness of the issues and directing the matter to a three-judge bench, the case has the potential to reshape Indian jurisprudence on sex, gender, and human dignity, and to lay the groundwork for more precise, humane, and scientifically informed laws.
The forthcoming hearing will be closely watched for its implications on healthcare regulation, statutory interpretation, and the future of rights-based governance for intersex persons in India.