Explained | How has the Supreme Court interpreted ‘sex’ and ‘gender identity’ in the past? 

What did Chief Justice D.Y Chandrachud say about the ambit of ‘gender’ during the hearings? How have Supreme Court judgments defined ‘sex’ and ‘gender identity’ in the past? What definitions do international covenants attribute to these terms?

Updated - April 27, 2023 05:05 pm IST

Published - April 27, 2023 04:29 pm IST

In this Saturday, Feb. 2, 2019, file photo, LGBTQ members take part in a pride parade, in Mumbai.

In this Saturday, Feb. 2, 2019, file photo, LGBTQ members take part in a pride parade, in Mumbai.

The story so far: Chief Justice of India D.Y. Chandrachud, presiding over a five-judge constitutional bench, observed last week that the very notion of a man and a woman is not “an absolute based on genitals”, in response to an argument raised by the Centre that the ‘legislative intent’ of marriage throughout has been a “relationship between a biological man and a biological female”.

The Chief Justice underscored that the Centre was making a ‘value judgment’, that there was no ‘absolute concept of a man or an absolute concept of a woman’ and that gender was ‘far more complex’ than one’s genitals.

The Supreme Court was discussing the ambit of gender and whether it expanded beyond the biological sex of a person while hearing a batch of pleas seeking the legalisation of same-sex marriage in India.

As the Chief Justice’s remarks went viral on social media, he was subjected to incessant trolling. Addressing the reactions, Justice Chandrachud on Thursday remarked, “There is nothing absolute; at the cost of being trolled. Answers to what we say in court is in trolls, and not in court.”

What transpired during the hearing?

Solicitor General Tushar Mehta, appearing for the Centre, argued that existing laws including the Special Marriage Act recognized only heterosexual marriages between a “biological man and a biological woman” and emphasised that the biological gender was indeed the gender of a person. 

Disagreeing with the Solicitor General, Mr. Chandrachud retorted, ‘There is no absolute concept of a man or an absolute concept of a woman at all… A man or a woman is not a definition of what their genitals are, it is far more complex. Even when the Special Marriage Act says ‘man’ and ‘woman’, the very notion of a man and a woman is not an absolute on what genitals you have’.”

Rebutting the CJI’s remark, the Solicitor General submitted that a ‘biological man means the genitals one has’, though adding that he did not want to use that ‘expression’. He added that if the notion referred to by the CJI is treated as a guiding factor to determine whether one is a man or a woman, the court would unintentionally be making several acts unworkable.

Senior advocate AM Singhvi, appearing for one of the petitioners, said that ‘same-sex marriage’ was a narrow term and, if the Court were to grant marriage equality to gay couples, it should be for consenting adults across the “bodily gender and sex spectrum”.

How do international covenants and foreign jurisdictions define ‘sex’ and ‘gender’?

Published in November of 2006 following an international meeting of experts in Yogyakarta, Indonesia, the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity extensively explain the concepts of gender identity and sexual orientation and were also heavily relied upon by the Supreme Court in Navtej Singh Johar v. Union of India.

‘Sexual orientation’ has been defined as each person’s capacity for profound emotional, affectional, and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender. ‘Gender identity’, meanwhile, has been defined as each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms.

The Council of Europe Convention on Preventing and combating violence against Women and domestic violence (Istanbul Convention) is the first international human rights document which contains a definition of gender. Article 3 of the Convention, defines gender as “socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men.” 

Enacted in the year 2015, Malta’s Gender Identity, Gender Expression, and Sex Characteristics Act allows for the legal gender recognition of persons based on self-determination and bodily integrity and added gender identity as grounds for non-discrimination in the constitution. It defines “gender expression” as each person’s manifestation of their gender identity, and/or the one that is perceived by others. Gender identity here is defined in similar terms as the Yogyakarta Principles.

How has the Supreme Court previously interpreted ‘sex’ and ‘gender identity’?

Stereotypes and gender roles

The Supreme Court in 2007 in Anuj Garg v. Hotel Association of Indiastruck down as unconstitutional a law that prohibited women from being employed in spaces serving alcohol, stating that it suffered from “incurable fixations of stereotype morality and conception of sexual role”, and hence discriminated on the grounds of sex.

The Court emphasized that due to traditional cultural norms, women often have to opt out of employment which is otherwise completely innocuous for ment, and called upon the State to ‘focus on factoring in ways through which unequal consequences of sex differences can be eliminated’.

“...legislations with pronounced “protective discrimination” aims, such as this one, potentially serve as double edged swords. Strict scrutiny test should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects,” the judgement said, adding that the perspective arrived at is “outmoded in content and stifling in means”.

Limited public knowledge about gender identity and expression

In its landmark 2014 ruling National Legal Services Authority (NALSA) v. Union of India, the Supreme Court recognized the right to gender identity, holding that transgender persons have the constitutional right to self-identify as male, female, or transgender even without medical re-assignment. The Court held that the rights to life, dignity, and autonomy include the right to one’s gender identity and sexual orientation.

The Court acknowledged that there was limited public knowledge and understanding of sexual orientation and people whose gender identity and expression are incongruent with their biological sex.

“Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution”, the Court underscored.

The Court recognised that while a person‘s sex is usually assigned at birth, a relatively small group of persons may be born with bodies which incorporate both or certain aspects of both male and female physiology.

Accordingly, it ruled that “discrimination on the ground of sex under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression “sex” used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male nor female.”

Sexual orientation is an essential attribute of privacy

On August 24, 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy v. Union of India confirmed that the right to privacy was a fundamental right under Article 21 of the Constitution, and further held that it extended to an individual’s sexual orientation.

The Court said that sexual orientation is an essential attribute of privacy and that discrimination based on it is deeply offensive to the dignity and self-worth of an individual. The judges further held that the right to privacy and “the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Arts 14, 15 and 21”.

The Court added that the right to privacy recognises personal choices governing a way of life, that it is not lost or surrendered merely because an individual is in a public space.

“Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised”, the judgment authored by Justice Chandrachud read.

Sexual orientation is beyond mere sexual preference

In Navtej Singh Johar v. Union of India (2018), a five-judge bench of the Supreme Court decriminalized carnal intercourse ‘against the order of nature’ by reading down Section 377 of the Indian Penal Code (IPC). While the provision technically applied to sexual acts common to heterosexual intercourse as well (such as oral, digital, or anal sex), it was used most commonly to persecute those belonging to the LGBTQ+ community. The judgment facilitated an expansive understanding of the trappings of gender identity as intrinsically related aspects of a person’s identity.

The judgment repeatedly referred to the definition of ‘sexual orientation’ in the Yogyakarta Principles, which goes far beyond mere sexual preference to include “each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.”

Challenging heteronormative gender roles, Justice Chandrachud opined in the judgment, “If individuals as well as society hold strong beliefs about gender roles – that men (to be characteristically reductive) are unemotional, socially dominant breadwinners that are attracted to women and women are emotional, socially submissive caretakers that are attracted to men – it is unlikely that such persons or society at large will accept that the idea that two men or two women could maintain a relationship. If such a denial is further grounded in a law, such as Article 377, the effect is to entrench the belief that homosexuality is an aberration that falls outside the ‘normal way of life.”

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