In December 2025, India’s Supreme Court agreed to hear a public interest litigation (PIL) seeking legal recognition for intersex persons in birth and death certificates, as well as their inclusion in the national census. Chief Justice Surya Kant, describing the petition as a “very good petition,” ordered the matter to be heard by a three-judge bench, signaling the judiciary’s acknowledgment of a critical gap in India’s legal framework.
The petition, filed by intersex rights activist Gopi Shankar M, challenges a fundamental oversight: the Registration of Births and Deaths Act, 1969 fails to recognize or provide procedures for registering intersex births and deaths. This legal vacuum has profound implications for India’s intersex community, affecting their access to identity documentation, healthcare, education, and fundamental civil rights.
Understanding Intersex: Beyond the Binary
Intersex people are born with sex characteristics, such as chromosomes, gonads, or genitals that do not fit typical binary notions of male or female bodies, according to the United Nations Office of the High Commissioner for Human Rights. This biological diversity occurs in approximately 1.7% of the population, making intersex variations as common as red hair.
However, India’s civil registration and census systems have historically operated on binary classifications of male and female, later expanded to include transgender. This framework leaves intersex individuals without proper recognition, forcing them into categories that do not reflect their lived realities.
The Current Legal Landscape: NALSA and Its Limitations
The foundation for gender identity rights in India was laid in 2014 with the Supreme Court’s landmark judgment in National Legal Services Authority (NALSA) v. Union of India. This decision legally recognized transgender persons as the ‘third gender’ and affirmed that fundamental rights granted under the Constitution would be equally applicable to them.
The NALSA judgment was revolutionary in several respects. The Court upheld the right of all persons to self-identify their gender and declared that hijras and eunuchs can legally identify as “third gender.” Critically, the Court stated that insisting on requiring Sex Reassignment Surgery (SRS) as a prerequisite for changing one’s gender is unlawful.
However, despite its progressive nature, the NALSA judgment and the subsequent Transgender Persons (Protection of Rights) Act, 2019 have created confusion regarding intersex persons. While a transgender person has a gender identity different from that assigned at birth, a person with intersex variations is one whose gender is different from the conventional classifications. The clubbing of intersex persons under the transgender umbrella fails to address their distinct needs and experiences.
The Current PIL: What’s at Stake?
The current petition before the Supreme Court seeks comprehensive reforms across multiple dimensions:
Legal Recognition in Civil Registration
The petition highlights how administrative forms continue to use narrow or confusing definitions, often using “sex” and “gender” interchangeably. Birth and death registration forms and census schedules use the category “gender” instead of “sex” and provide options such as male, female and transgender, making it impossible to accurately record intersex persons.
Identity Documentation
The lack of proper recognition creates barriers to essential services. Many administrative forms use the term “gender” instead of “sex” and provide limited options, forcing intersex persons to fit within categories that do not reflect their lived realities.
Education and Employment
Schools and colleges, by not providing an option other than Male or Female in the Sex column of their admission forms, are forcing a child to only opt either a Male or a Female identity. This exclusion extends to employment opportunities and welfare schemes.
Census Inclusion
The absence of data on intersex populations prevents accurate demographic assessment and hinders the development of targeted welfare policies. The petition seeks to ensure intersex persons are counted in the upcoming national census, providing crucial visibility to this historically marginalized community.
Medical Ethics and Children’s Rights
One of the most critical issues raised concerns medical interventions on intersex children. Historically, intersex infants have been subjected to “normalizing” surgeries without their consent or understanding.
In the NALSA judgment, the Supreme Court clearly held that no individual can be compelled to undergo medical interventions, including SRS, sterilisation, or hormone therapy as a condition for legal recognition.
Building on this principle, in 2019, the Madras High Court directed the Tamil Nadu government to issue a government order to effectively ban sex reassignment surgeries on intersex infants and children, except in life-threatening situations. Tamil Nadu thus became the first Indian state to protect intersex children from non-consensual medical interventions.
The current petition emphasizes that parents should not be allowed to decide or consent to irreversible medical procedures on intersex children, advocating for the child’s right to bodily autonomy and informed consent.
International Precedents and Best Practices
Several countries have already implemented legal frameworks recognizing intersex persons:
Germany became the first European nation to register babies with characteristics of both sexes as indeterminate gender on birth certificates in 2013, though this approach faced criticism from intersex advocates for potentially encouraging surgical interventions.
United States has seen various developments at the state level. In 2016, Sara Kelly Keenan became one of the first people to receive a birth certificate with an “Intersex” sex marker from New York City. Multiple states now offer non-binary options on official documents.
Malta passed legislation in 2024 implementing a non-binary option alongside male and female on birth certificates, providing individuals with greater autonomy over their legal identity.
Argentina’s Gender Identity Law (2012) allows individuals to change their birth-assigned sex without requiring proof of surgical procedures, embodying the principle of self-determination.
The Asia Pacific Forum of National Human Rights Institutions emphasizes that legal recognition of intersex people is primarily about access to the same rights as other people, access to administrative corrections when original sex assignments are inappropriate, and fundamentally about self-determination rather than creating mandatory third-sex classifications.
The Distinction Between Sex and Gender
A crucial aspect of the petition is the call for clarity on the distinction between “sex” and “gender.” The petitioner argues these are distinct concepts that have been incorrectly used interchangeably by the legislature, executive, and judiciary.
“Sex” typically refers to biological characteristics, including chromosomes, hormones, and reproductive anatomy. “Gender” refers to socially constructed roles, behaviors, and identities. This distinction is vital because intersex is a matter of biological variation in sex characteristics, while transgender relates primarily to gender identity.
Conflating these terms creates confusion in policy frameworks and fails to address the specific needs of different communities. An intersex person may identify as male, female, or non-binary in terms of gender, regardless of their sex characteristics.
Challenges Ahead: Implementation and Social Change
Even with favorable legal recognition, significant challenges remain:
Social Stigma and Awareness
The Supreme Court in NALSA directed governments to take steps to create public awareness to better incorporate transgender individuals into society and end treatment as untouchables. Similar efforts will be needed for intersex persons, who face unique forms of discrimination and misunderstanding.
Medical Community Education
Healthcare providers need training on intersex-affirming care that respects bodily autonomy and informed consent. The medicalization of intersex variations as “disorders” requiring correction has caused significant physical and psychological harm.
Administrative Implementation
Even progressive judgments can fail in implementation. The gap between NALSA’s 2014 pronouncements and ground-level reality demonstrates that legal recognition alone is insufficient without robust administrative mechanisms and monitoring.
Data Collection and Policy Development
Without accurate data on intersex populations, governments cannot develop effective welfare schemes or affirmative action policies. The census inclusion sought by the petition is therefore crucial.
The Way Forward: Toward Dignity and Self-Determination
The Supreme Court’s willingness to hear this petition signals a potential evolution in India’s approach to gender identity and sex characteristics. Several principles should guide this development:
Bodily Autonomy: No person, especially children, should be subjected to medically unnecessary procedures without their informed consent.
Self-Determination: Individuals should have the right to identify their own gender and have that identity legally recognized without medical gatekeeping.
Separate Recognition: Intersex identity should be recognized as distinct from transgender identity, with policies tailored to each community’s specific needs.
Privacy and Dignity: Legal frameworks must protect individuals’ privacy while ensuring access to rights and services.
Inclusive Systems: Administrative systems, from birth certificates to educational forms, must accommodate the reality of human biological and gender diversity.
Conclusion: A Critical Juncture
As the three-judge bench prepares to hear this petition, India stands at a critical juncture in its jurisprudence on gender identity rights. The NALSA judgment opened the door to recognizing diversity beyond the male-female binary. Now, the challenge is to ensure that intersex persons, who have remained largely invisible in legal frameworks, receive the specific recognition and protections they need.
This case is not merely about adding categories to forms or documents. It is about acknowledging the fundamental dignity of every person, respecting bodily autonomy, and ensuring that India’s legal system reflects the reality of human diversity. For intersex individuals who have long been forced to navigate a system that does not see them, legal recognition would represent not just administrative convenience but a profound affirmation of their right to exist with dignity.
The petition filed by Gopi Shankar M represents years of activism and lived experience. As the Supreme Court deliberates, it has the opportunity to build on the progressive foundation of NALSA and create a truly inclusive legal framework that recognizes and protects all persons, regardless of their sex characteristics or gender identity. The journey toward equality may be long, but legal recognition is an essential first step.
Ishwarya Dhube is a third-year BBA LLB student who combines academic rigor with practical experience gained through multiple legal internships. Her work spans various areas of law, allowing her to develop a comprehensive understanding of legal practice. Ishwarya specializes in legal writing and analysis, bringing both business acumen and hands-on legal experience to her work.
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