Gender and sex are distinct concepts; right to choose gender vested with individuals, not courts: Kerala High Court

The Kerala High Court on Monday made pertinent observations regarding the difference between biological sex and gender identity..Justice VG Arun noted that while 'gender' and 'sex' are often used interchangeably, they are actually two distinct concepts."The terms 'gender’ and ‘sex' are often used interchangeably in casual conversation, but are actually two distinct concepts related to human identity and biology. 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..In a judgment dealing with the issues faced by intersex persons, the Court went through the Supreme Court's landmark judgment in the NALSA case and observed,"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 recognised. 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.".On a reading of the provisions of the Transgender Persons (Protection of Rights) Act, 2019, the Court noted,"It is beyond cavil that the right to choose gender is vested with the individual concerned and no one else, not even the court.".In an attempt to understand the trials and tribulations of intersex persons, Justice Arun also included a few stanzas from the poem 'I'm Fluid' by Sarah Crouse, which he believed has "encapsulated the intersex psyche beautifully"..The Court was hearing a petition moved by the parents of a 7-year-old child born with ambiguous genitalia, seeking to conduct genital reconstructive surgery to raise the child as a female. Although doctors advised genital reconstruction, they refused to actually go ahead with the surgery without orders from a competent court..In order to answer the complex question regarding the right of parents to decide the gender of their minor child without the child's consent, the Court first discussed the larger concepts involved.The Court touched on mythological and historical representations of people with genitalia of more than one sex. It considered the views of the United Nations Convention on the Rights of the Children (UNCRC) on the problems faced by intersex infants and the views taken by other countries on genital reconstruction or gender affirming surgeries.It noted that "only few countries have come forward with a legislation either regulating or permitting genital reconstruction/affirmation surgery and even with respect to those countries, the age of consent varies."The Court further observed that an article on the topic published in the Medical Law Review, as well as a report of the World Health Organisation titled 'Sexual Health, Human Rights and the Law', highlighted that there was severe evidentiary deficit of the therapeutic benefits of non-consensual intervention. .Justice Arun ultimately found that allowing the petitioners in this case to go ahead with the surgery on their child would impinge upon the child's rights under Articles 14, 19 and 21 of the Constitution of India and conducting 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 added.However, the Court ordered the constitution of a State Level Multidisciplinary Committee to examine the child and ascertain if there are any life-threatening medical issues. If such was the case, permission can be granted for the surgery, the Court said.It also directed the State government to issue an order regulating sex selective surgeries on infants and children. .The petitioners were represented by Advocates TP Sajid, Safwan K, Shilfa Latheef, Muhammed Haroon AN and Muhammed Musthafa K. Government Pleader PS Appu appeared for the State.Advocate Indulekha Joseph assisted the Court as amicus curiae..[Read Judgment]