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

How have Supreme Court judgments defined ‘sex’ and ‘gender identity’ in the past ? What definitions do international covenants attribute to these terms?

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.”

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 CJIis treated as a guiding factor to determinewhether one is a man or a woman, the court would unintentionally be making several acts unworkable.