Interview: Court doesn’t know the difference between sex and gender, says equal rights activist Gopi Shankar Madurai

The representative from the National Council for Transgender Persons weighed in on the apex court's recent same-sex marriage judgement.

ByVinodh Arulappan

Published Oct 25, 2023 | 10:00 AMUpdated Oct 25, 2023 | 3:32 PM

Interview: Court doesn’t know the difference between sex and gender, says equal rights activist Gopi Shankar Madurai

On Tuesday, 17 October, the LGBTQIA+ community held high hopes that the Supreme Court of India would officially acknowledge same-sex marriages.

However, the court did not recognise these unions, leading to disappointment within the community. Instead, the apex court said that the responsibility for according such recognition lies with the legislature.

While some are hopeful, many others are critical of what the Union government will do.

In an interview with South First, Gopi Shankar Madurai, the South Regional Representative of the National Council for Transgender Persons (NCTP) under the Ministry of Social Justice and Empowerment, speaks about the scientific nuances behind sexual orientation, gender identity, expressions and sex characteristics of the LGBTQIA+ community, and how the government is clueless about these aspects. Edited excerpts.

Also Read: AUSTRAL AFFAIRS: Same-sex verdict — beyond the headlines

Q. The Supreme Court has refused to recognise same-sex marriages although it did recognise marriage rights and civil rights. What are your views on it?

A. I have read the judgement. I’m one of the petitioners in the case. I think the problem is that the larger judiciary doesn’t have any understanding of the terms “sex” and “gender identity”.

The term sex is common to all the species in the world and, of course, all animals, including us, have sex identity. When we are born, we are established either as male or female. So males have the XY chromosomes and females have the XX chromosomes, and so when you can’t identify the baby either as a male or female, especially when they’re born with ambiguous genitals, you call them intersex.

So their chromosomal pattern may differ. That is, they may be born with XXX. Like this, there are 14 recorded chromosomal patterns — at least 40 diverse intersex conditions.

One of the most important points of the judgement is that the court refused to intervene in the Special Marriage Act to recognise the relationship of gay and lesbian persons. However, the court did recognise marriage rights and civil rights of transgender persons and intersex persons. It’s not the first time this has happened.

But what about the marriage rights of the trans-gay and trans-lesbian? The court had no clue about it. It acted as a moral police. The court, which is a constitutional authority, exhibited a lethargic attitude. The court failed to recognise the non-conscious “subject of the state”. What about the sexual orientation of an autistic child? The questions are endless.

Also read: SOUTH FIRST VIEW: LGBTQIA+ marriage rights are not unnatural

Q. What made you approach the court and what were your contentions before the Bench?

A. The most important thing, as I said, is that the court doesn’t know the difference between sex and gender identity. The Constitution of India only refers to the word sex in two senses. One is a sex identity, which is an identity established at birth. The other is as an activity. So basically, we do not have the word gender in the Constitution. We only have the word sex identity or sex in the Constitution.

The second point is that based on this, we have a statutory provision. What is statutory provision? It is out of a constitutional law based on the constitutional values as well as the ethos. This can be made by the Parliament of India, both Upper House and Lower House, and they pass this particular law. So, we have special statutory authorities to protect those laws.

For example, the National Human Rights Commission is a statutory body. The National Commission for Scheduled Castes is a statutory body. NCPT is a statutory body. We have this special statutory law which is a protection of rights.

The Registration of Birth and Death Act of 1969 only registers the birth and death of Indian citizens as male and female. This particular statutory provision has also created a special position called Director General of Census Count of India, who will maintain the national register to register the birth and death of Indian citizens.

The Registration of Birth and Death Act talks about what to register, how to register, what type of birth, what type of death, and all those things.

But this law, this 1969 law, does not talk about the subject of the state it is going to register. The subjects of the state it is going to register is NOT CLEAR. I mean, we are literally living in a country where we haven’t legally defined what constitutes a male and female!

Also read: ‘Old wine in new bottle’ judgement on same sex marriage by SC

Q. The Supreme Court had directed the Union government to frame a committee to determine the rights of queer unions. Do you think it will help the LGBTQIA+ community to attain its civil rights?

A. The Supreme Court, in 2014, went on to define transgender persons as the “third gender” in an unscientific manner. Definitely, man is not the first gender, woman is not the second gender, and transgender is not the third gender. Gender itself is only specific to homo sapiens, that is human beings.

Sex identity is common to all of us. So what is the problem and what is the difference between sex and gender identity?

Sex is by birth, you don’t define it or you don’t consciously decide whether to be born as male or female or as an intersex person. Intersex is a sex characteristic. Intersex persons are not transgender persons. Transgender is a gender identity, we have men, women, and transgender people — actually, there are at least more than 150 genders.

Now, we cannot give additional sheets with all the 150 gender options. So first of all, our governments, the courts, and the public-private sector should stick only to sex identity as an option.

The court and the government don’t know who intersex people are because they are not even part of the census of India. So, without even having their count, how you can grant them a civil right? Without even recognising identity or calculating our numbers — how many such people live in India — we are going ahead with the civil rights of people.

Q. You are the only petitioner to represent the intersex community in the batch of petitions filed. Do you think this judgement will help civil society understand the intersex community better than before?

A. We should not interchangeably use sex and gender options. This judgement is worrisome and has made the path for civil recognition of intersex and other queer communities’ requests even more difficult. This judgement will not help the LGBTQIA+ community alleviate their poverty or gain social recognition.