The Supreme Court has issued notice in a plea raising issue concerning the distinct recognition, protection and affirmative support framework for Intersex Persons — individuals born with congenital variations in sex characteristics (Differences of Sex Development – DSD).
The petitioner arrayed the Union of India and various state ministries as respondents to seek a clarificatory constitutional recognition and targeted safeguards for intersex persons as a distinct biological class, without diluting the rights already recognized for transgender persons.
It was pleaded that the existing legal and statutory frameworks, including the Transgender Persons (Protection of Rights) Act, 2019, failed to distinguish between individuals experiencing gender identity variance over time and those born with congenital variations in sex characteristics (Differences of Sex Development – DSD).
The Bench of Chief Justice Surya Kant, Justice Joymalya BagchiandJustice V Mohana issued notice in the matter.
The petitioner argued that this lack of distinction led to administrative confusion and rendered intersex infants constitutionally invisible, violating their fundamental rights under Articles 14, 15, and 21 of the Constitution of India.
The Plea filed by Petitioner-in-Person, Shamshravish Rein, has stated in her plea, “Despite the constitutional guarantees of equality and dignity, intersex persons in India continue to face Non-consensual “normalization” surgeries in infancy, absence of birth documentation clarity, social abandonment and stigma, exclusion in inheritance, Lack of structured reservation & Linguistic invisibility in formal systems.”
The petitioner highlighted the grave and continuing violations of bodily integrity and autonomy, specifically pointing to the performance of non-consensual, irreversible, and medically unnecessary “normalization” surgeries on intersex infants for social conformity.
While the Madras High Court in Arunkumar & Anr. v. The Inspector General of Registration (2019)and subsequent state initiatives had banned or advised against such infant surgeries, the Union of India failed to frame comprehensive national legislation, uniform medical protocols, or standardized healthcare guidelines.
It was contended that these Directive Principles, though non-justiciable in isolation, consistently informed and enriched the fundamental right to life and personal liberty under Article 21, thereby mandating that all decisions affecting children prioritize their long-term welfare, bodily integrity, and future autonomy.
Furthermore, under the doctrine of parens patriae, the State and the Supreme Court acted as the ultimate guardians of infants who were legally and physically incapable of protecting their own interests or providing informed consent.
The petitioner argued that non-consensual and medically unnecessary “normalization” surgeries performed on intersex infants permanently altered their bodies for social conformity, thereby violating the constitutional test of proportionality, which required any restriction on bodily autonomy to be justified by a legitimate, necessary, and least-restrictive aim.
The Plea said, “Because Article 21 read with Article 39(f) of the Constitution mandates that children are afforded conditions of freedom, dignity and healthy development, and are protected against physical, moral and psychological harm; any practice that subjects a child to irreversible bodily alteration without informed consent, particularly where not medically necessary, violates this constitutional guarantee. Infants born with variations in sex characteristics are entitled to protection from premature and non consensual medical decisions that may permanently impact their identity, bodily integrity and developmental trajectory, and the State is obligated to ensure that all actions concerning such children are guided by their long term welfare and best interests.”
The petitioner averred that while the Supreme Court in National Legal Services Authority (NALSA) v. Union of India (2014) recognized the right to gender identity and dignity, the said judgment primarily addressed gender identity transitions and did not specifically deal with the distinct biological realities of intersex persons identifiable at birth. It was further submitted that subsequent landmark rulings—such as Suchita Srivastava (2009) on reproductive autonomy, Justice K.S. Puttaswamy (2017) on privacy,andNavtej Singh Johar (2018)on individual autonomy—affirmed the rights of minorities but left a zone of constitutional silence regarding congenital sex variations.
The petitioner stated that the Transgender Persons (Protection of Rights) Act, 2019, despite defining transgender persons to include intersex individuals, failed to provide targeted safeguards against infant medical interventions. Consequently, the present petition sought a clarificatory constitutional recognition and targeted safeguards for intersex persons as a distinct class, without diluting the rights already recognized for transgender persons.
The petitioner placed reliance on medical science to state that biological sex was not strictly binary, enumerating recognized conditions present at birth such as Androgen Insensitivity Syndrome, Congenital Adrenal Hyperplasia, Klinefelter Syndrome (XXY), Turner Mosaicism, Gonadal Dysgenesis, and Ovotesticular DSD.
The petitioner emphasized that these congenital biological realities involved atypical genital formation, chromosomal variations, or mixed gonadal structures, which fundamentally differed from later-stage sexual orientation or gender identity transitions.
“Intersex persons are individuals born with congenitalvariations in sex characteristics, including atypicalgenitalia, chromosomal variations, gonadal differencesand hormonal variations. Such conditions are present atbirth and are distinct from gender identity, whichdevelops over time. Despite constitutional guarantees,intersex persons remain legally invisible within thepresent framework”, the plea said.
The petitioner noted that many such children were historically removed from family support, denied schooling, and deprived of equal inheritance, noting further that the historical stigma was exacerbated by colonial legislations like the Criminal Tribes Act, 1871 (repealed in 1952), which had formally criminalized and marginalized gender-nonconforming identities.
The petitioner submitted that the cause of action for the present petition arose from the continuing performance of non-consensual and medically unnecessary surgical interventions on intersex infants across India, in the absolute absence of uniform national guidelines or statutory safeguards. It was contended that each instance of non-consensual medical intervention and forced categorization constituted a continuing wrong against a vulnerable class incapable of self-representation, thereby renewing the cause of action and warranting the invocation of jurisdiction under Article 32 of the Constitution.
The petitioner highlighted that although the Madras High Court in Arunkumar v. The Inspector General of Registration (2019) directed a prohibition on non-essential interventions—leading to a ban by the Government of Tamil Nadu vide G.O. (Ms.) No. 355—and despite advisory orders passed by the Delhi Commission for Protection of Child Rights (DCPCR) in 2021, the Union of India failed to implement a comprehensive national policy.
The petitioner prayed for the following:
1. To declare that persons born with congenital variations in sex characteristics constitute a distinct, identifiable class for targeted constitutional protection, without affecting the rights of transgender persons.
2. To direct the Union of India to frame separate statutory guidelines for the protection and welfare of intersex persons within six months.
3. To direct the Union of India to constitute a National Medical Protocol Committee for Intersex Care within three months.
4. To direct an immediate nationwide ban on medically unnecessary, irreversible surgical or hormonal interventions on intersex infants and children until they can provide informed consent, except in life-threatening cases.
5. To direct the constitution of an expert committee to recommend educational and public employment reservation frameworks for intersex persons, equivalent to other vulnerable classes.
6. To direct the amendment of birth registration, passport, [Aadhaar Redacted], educational, and employment documentation rules to provide neutral options and update procedures.
7. To direct the Law Commission of India to recommend dignified, neutral honorific titles equivalent to Mr./Ms./Mrs. and Male/Female.
8. To direct the Union of India and the Law Commission of India to recommend clarificatory measures ensuring intersex persons enjoy equal inheritance and succession rights.
Cause Title: Shamshravish Rein v. Union of India and Ors. [W.P. (C) No. 764/2026]
