In a significant move for human rights, the Supreme Court of India has escalated a critical petition concerning the legal and bodily rights of intersex persons. On December 16, 2025, a two-judge bench led by Chief Justice of India Surya Kanth referred a Public Interest Litigation (PIL) to a three-judge bench for a deeper constitutional examination.
The Core of the Legal Challenge
The PIL, filed by Gopi Shankar M—the first openly intersex member of the National Council for Transgender Persons in 2024—challenges a fundamental flaw in Indian law: the conflation of sex and gender. It argues that intersex individuals, born with biological traits that do not fit typical male or female binaries, face a unique set of challenges distinct from those of transgender people.
While the landmark NALSA v Union of India (2014) judgment carved out rights for the transgender community, it inadvertently grouped all non-binary identities under the "transgender" umbrella. This PIL asserts that this is a category error, as intersex persons require legal protection for their innate physical characteristics, separate from protections based on self-identified gender.
The Urgent Issue of Non-Consensual Surgeries
A central and pressing demand of the petition is a nationwide ban on medically unnecessary sex-selective or sex-assignment surgeries performed on intersex infants and children. These irreversible procedures, often done for cosmetic reasons to fit a child into a binary mold, are performed without the child's informed consent.
The PIL cites alarming instances, claiming that 40 such surgeries were performed on intersex newborns and children at the Government Rajaji Hospital in Madurai in 2022 and 2023. Such interventions can cause lasting physical and psychological harm.
Some states have taken lead. Following a 2019 Madras High Court order, Tamil Nadu became the first state to ban these surgeries on intersex minors, except in life-threatening situations. The Delhi Commission for Protection of Child Rights made a similar recommendation in 2021, though the Delhi government is yet to implement a formal ban.
Administrative Invisibility and Legal Hurdles
Beyond medical violations, intersex individuals face systemic erasure. India has no official count of its intersex population. The 2011 Census recorded them incorrectly under the "Transgender" category. The Registration of Births and Deaths Act, 1969 forces parents to misidentify an intersex child as either male or female, creating a cascade of legal problems in education, employment, and identity verification later in life.
The consequences of this policy vacuum are stark, as seen in the case of athlete Santhi Soundarajan, who was stripped of her Asian Games silver medal in 2006 after a sex verification test.
What the PIL Demands
The petition seeks comprehensive reforms:
- A central law to ban non-consensual sex-assignment surgeries on minors nationwide.
- Inclusion of "intersex" as a separate category in the upcoming Census and all official documents.
- A redesign of identity documents to have separate columns for "sex" (biological) and "gender" (identity).
- Establishment of a central regulatory commission for people with diverse sex characteristics.
- Extension of reservation benefits to the historically marginalized intersex community.
By referring the matter to a three-judge bench, the Supreme Court has acknowledged the need to re-examine the constitutional principles laid down in the two-judge NALSA verdict. This move marks a pivotal step towards recognizing intersex rights as a distinct and urgent issue of bodily autonomy, legal identity, and human dignity in India.
