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Kerala High Court Affirms Individual’s Right to Choose Gender; Distinguishes Between ‘Gender’ and ‘Sex’

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Kerala HC Law Insider

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Published on: 09 August 2023 at 13:26 IST

The Kerala High Court in XXX & Anr. v. The Health Secretary & Ors., engaged in a comprehensive medico-legal discourse regarding the distinctions between ‘gender’ and ‘sex.’

This thoughtful verdict delves into the intriguing question of whether parents possess the right to determine the gender of a child with ambiguous genitalia without the child’s consent and awareness of their own orientation.

Justice V.G. Arun, presiding over a Single Judge Bench, elucidated that while ‘gender’ and ‘sex’ are often used interchangeably in everyday conversations, they represent separate and distinct concepts.

The Court emphasized, “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, behaviors, expectations, and identities associated with being male-female or non-binary.”

The case in question involved parents seeking the Court’s permission to conduct a genital reconstructive surgery on their child born with ambiguous genitalia, with the aim of raising the child as a female.

The child had been diagnosed with ‘Congenital Adrenal Hyperplasia,’ undergoing treatment for the condition. The parents’ plea stemmed from the Karyotype Report-46XX, indicating female gender identification.

The Court recognized ‘Ambiguous genitalia’ as a rare condition affecting less than one million individuals out of a population exceeding one hundred and thirty crores. Drawing attention to historical instances of individuals possessing dual genitalia, the Court cited an article by Anne Fausto-Sterling that explored the lives of ‘hermaphrodites’ who experienced fluid gender experiences.

The Court underscored the path-breaking National Legal Services Authority v Union of India & Ors. (2014) Supreme Court ruling, which challenged the ‘gender binary straitjacket,’ acknowledging gender diversity.

It firmly stated that the right to choose one’s gender or sex identity, a fundamental aspect of self-determination, dignity, and freedom, should be honored. The Court emphasized that intervening with this right would infringe upon privacy, dignity, and freedom.

Referring to the Puttaswamy judgment [Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors. (2017)], the Court affirmed the concept of privacy, asserting that individual choice, whether in relation to ‘gender’ or ‘sex,’ is firmly established.

Delving into the Transgender Persons (Protection of Rights) Act, 2019, the Court affirmed that the right to choose gender lies solely with the individual, unaffected by external influences, including the Court.

Furthermore, the Court explored international practices related to gender reconstructive surgeries, highlighting that few countries had regulations governing such procedures, and age of consent varied.

In light of these considerations, the Court rejected the notion of granting non-consensual sex-affirmative surgery based solely on the Karyotype-46XX report. Instead, it introduced the requirement of a duly constituted medical board’s recommendation.

The Court also issued a series of directives for establishing a State Level Multidisciplinary Committee to evaluate surgery requests and life-threatening conditions related to ambiguous genitalia.

Advocates T.P. Sajid, Safwan K., Shifa Latheef, Muhammed Haroon A.N., and Muhammed Musthafa K. represented the petitioners, while Government Pleader P.S. Appu and Amicus Curiae Advocate Indulekha Joseph also participated in the proceedings.