THE NEED FOR SPECIFIC LEGAL PROTECTION OF INTERSEX INDIVIDUALS IN INDIA: A GENDER THAT HAS WALKED THE EARTH AS LONG AS MAN BUT HAS REMAINED LARGELY INVISIBLE TO SOCIETY
AUTHOR – NIKARA LIESHA FERNANDEZ, STUDENT AT SCHOOL OF LAW, CHRIST (DEEMED TO BE UNIVERSITY), BANGALORE
Best Citation – NIKARA LIESHA FERNANDEZ, THE NEED FOR SPECIFIC LEGAL PROTECTION OF INTERSEX INDIVIDUALS IN INDIA: A GENDER THAT HAS WALKED THE EARTH AS LONG AS MAN BUT HAS REMAINED LARGELY INVISIBLE TO SOCIETY, Indian Journal of Legal Review (IJLR), 3 (2) of 2023, Pg. 167-181, APIS – 3920 – 0001 & ISSN – 2583-2344.
I. Introduction
Intersex is a term that many people are not familiar with as they do not come across it everyday lives. Even those who are familiar with the term seldom understand the true nature and intricacies that form a part of the lives of individuals who identify as intersex. While conducting the research for this paper, the researcher was shocked to find the dismal lack of information, especially from the Indian perspective, about intersex individuals. Internationally as well, it has only been in the last couple of decades that individuals identifying as ‘intersex’ have been more vocal about their plight and have tried to spearhead movements to fight for the recognition and protection of their rights. This lack of awareness of a largely invisible population is clearly visible in the reflection of the handful of countries that actually have laws protecting the rights of intersex individuals. It is saddening to note that India has no comprehensive legislative framework to adequately deal with the specific issues faced by intersex individuals. From the legislative standpoint, the Transgender Persons (Protection of Rights) Act, 2019 merely defines ‘person(s) with intersex variations’ once in its definition[1] section but makes no efforts to distinguish it from the term ‘transgender’, as a result of which the two are treated as one and the same. From a judicial standpoint as well, there have only been a few judgements that dabble around the topic of ‘intersex.’ The progressive and widely celebrated judgement in National Legal Services Authority v. Union of India[2], has no doubt made great progress for the transgender community, but on careful scrutiny, it can be seen that there has been no acknowledgement or action taken to allay the specific concerns of the intersex community. The lacunae in the aforementioned judgement were corrected with the recent case of Arunkumar v. Inspector General of Registration[3] wherein the judiciary took an active step in ordering the Tamil Nadu Government to prohibit medical interventions on intersex infants
[1] The Transgender Persons (Protection of Rights) Act 2019, s 2(i), No.40, Acts of Parliament, 2019 (India)
[2] National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (hereinafter referred to as the NALSA judgement)
[3] Arunkumar v. Inspector General of Registration, 2019 SCC OnLine Mad 8779 (hereinafter referred to as the Arunkumar judgement)