Intersex persons

The term “intersex” itself refers to “a range of physical traits or variations that lie between stereotypical ideals of male and female.” The UN Office of the High Commissioner for Human Rights defines an Intersex Person to be an individual who is born with sexual characteristics that do not fit into the typical binary division of sex.  It is a heterogeneous group that emerged as a medical diagnosis in order to classify human bodies as male or female. These mainly include individuals with varied sexual anatomy, reproductive organs, hormonal patterns, and/or chromosomal patterns. Such variations may be visible or invisible and may be congenital or acquired after puberty, highlighting that there could not be merely one archetype of an intersex individual.  

Due to such diverse variations, it is hard to pinpoint the frequency of individuals having intersex traits. Yet, some of the earlier estimates, including liberal estimates at present, include the same to be at around 1.7% at the higher limit, while the lower limit is 0.05%.

Over the past decades, concerns regarding the rights of intersex persons have gained national as well as international notoriety. In 2013, the Third International Intersex Forum was organized in Malta, with the support of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) and ILGA-Europe. The forum consisted of various intersex activists from throughout the world who released a joint statement called the Malta Declaration that called upon various institutions, governments, media agencies, and funders to provide visibility to intersex issues and work towards empowerment of intersex individuals. Among others, the declaration demanded an end to unnecessary surgeries, abortion, infanticide, and prenatal screening of intersex children; depathologising intersex variations; allowing easy gender marker change; raising awareness; and upholding the dignity and rights of intersex individuals.

Official Definition of Intersex Person

The Transgender Persons (Protection of Rights Act), 2019 , previously under section 2 (i) defined an intersex person to be a "person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes or hormones from normative standard of male or female body". At the same time, under section 2 (k), it includes intersex persons within the definition of 'transgender person' within the act.

Following the Transgender Persons Amendment Bill, 2026, the definition of intersex persons under section 2(i). The term has also been removed from the definition of 'transgender persons' and further medical terms have been included within the definition providing that only:

a person who, at birth, has a congenital variation in one or more of the following sex characteristics as compared to male or female development:—

(a) primary sexual characteristics;

(b) external genitalia;

(c) chromosomal patterns;

(d) gonadal development;

(e) endogenous hormone production or response, or such other medical conditions, [shall be included].

Legal provisions relating to intersex persons

Transgender Persons Act, 2019

Under Chapter III, the Transgender Persons Act, 2019 provides that each transgender individual has a right to their self-identification, following the procedure provided for in the act alongside the Transgender Persons (Protection of Rights) Rules, 2020. Further, Section 8 of the Act puts an obligation on the government to ensure full and active participation of trans persons in society, along with promoting and protecting their rights. It shall be the duty of the government to formulate welfare schemes, along with their “rescue, protection and rehabilitation”.

Chapter V shifts the obligation to other establishments and persons, including the parents, to provide for the child and make sure they have a right to use the facilities available in the household. Chapter VI puts an obligation on educational institutions to provide a safe and inclusive space, along with vocational training and healthcare facilities for trans persons.

International Provisions

The International Covenant on Civil and Political Rights (ICCPR) declares that each individual has a right to liberty and security (Article 9). This is based upon Article 3 of the Universal Declaration of Human Rights (UDHR), which states that everyone has a right to “life, liberty and security of persons.” In the case of the ICCPR, the UN Human Rights Committee clarified (CCPR/C/GC/35) that the right to security here meant freedom from any form of injury, whether mental or physical, intentionally inflicted upon that person. This right is available to everyone, including, as explicitly clarified, queer identities, including “lesbian, gay, bisexual and transgender persons.” This right is violated when intersex children have to undergo forceful or coercive intervention.

On the other hand, information accessibility is covered by Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which includes the right for people to obtain specific information about their own health status as well as the right to seek, receive, and share ideas and information about sexual and reproductive health issues in general. Everyone has the right to access evidence-based information on all facets of sexual and reproductive health, including young people and adolescents (E/C.12/GC/22). Additionally, such information must be delivered in a way that is in line with the needs of the community and the person, taking into account variables like age, gender, educational attainment, language proficiency, disability, sexual orientation, gender identity, and intersex status.

Furthermore, the UN Convention on the Rights of the Child (CRC) under Article 12 provides that minors who are capable of giving their own views shall be allowed to do so and such views shall be given due account based upon the age and maturity of the child. It further declared in its Article 16 that everyone has a right to privacy against any form of arbitrary interference. Similar provisions exist in Article 17 of the ICCPR. Article 19 of the CRC states that it shall be the duty of the states to protect children that are in the care of their parents or guardians from “physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.” According to Article 24(2), authorities shall take action to end harmful practices and other customs that are detrimental to children's health, including through rights-based strategies that effectively penalize or criminalize harmful practices, fight impunity, and offer victims' compensation. The Committee on the Rights of the Children has declared that evaluations of a child's best interests must take into account the child's opinions and that interpretations of a child's best interests cannot be used to defend actions that violate human dignity and the right to physical integrity (CRC/C/GC/14). This is in reference to guaranteeing the child's best interests, which is the responsibility of both parents and states.

In respect to the UN Convention on the Rights of Persons with Disabilities (CRPD), the treaty body in 2019 raised concerns regarding the practice of “mercy killings” of intersex children with disabilities in India (CRPD/C/IND/CO/1). It also raised concerns regarding “sex-normalizing” surgeries conducted on intersex children without their consent as well as the lack of registration of intersex children at birth.  It recommended that India adopt measures to ensure that the rights of intersex individuals are upheld, alongside launching investigations and punishing the perpetrators.  It additionally recommended that India should “protect intersex children from attacks against their lives and any related harmful practices…” Other recommendations included ensuring inclusive education spaces and taking steps to stop bullying, stigmatization, and rejection of intersex children in schools.

The Committee on the Elimination of Discrimination Against Women, under the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), has also recommended adopting “provisions explicitly prohibiting” unnecessary medical intervention on intersex children until they reach the age and maturity to give free, prior, and informed consent (CEDAW/C/MEX/CO/9).

Intersex Persons as defined in international instruments:

On 4 April, 2024, the UN Human Rights Council adopted a resolution (A/HRC/RES/55/14) on “Combating discrimination, violence and harmful practices against intersex persons,” with 24 of the 47 countries voting in favor. The resolution reaffirmed that intersex persons not only have a right to live a free, equal, and dignified life according to the UDHR but also under various other human rights instruments. Although, it might appear that the resolution used the terms “intersex persons” and “persons with innate variations in sex characteristics” interchangeably. Although the Report of the Office of the United Nations High Commissioner for Human Rights (A/HRC/60/50), presented later, clarifies the difference between the terminologies. The use of the latter recognizes that “intersex” is an “umbrella term to describe a wide range of innate bodily variations in sex characteristics.” Yet, intersex persons may wish to use other terminologies, such as having an “intersex variation,” an “intersex trait,” or being “born with a variation of sex characteristics.”

Intersex Persons as defined in official document:

In 2019, the Tamil Nadu Government passed an order (G.O. (Ms) No. 355) that banned sex-selective surgery on intersex children. The order defined intersex individuals as “people born with physical or biological sex characteristics that are more diverse than stereotypical definitions for male or female bodies.” It further mentions that an individual may develop intersex variations at any point of time during their life. Therefore, there cannot be one normative intersex experience.

Intersex Persons as defined in case law:

One of the most prominent judgements in relation to transgender and intersex persons' rights was that of NALSA v. Union of India, wherein the supreme court granted the right to self-identification to transgender persons. It highlighted the cultural experiences, as well as the historical marginalization of transgender and intersex persons. Yet the court failed to formulate any specific guidelines in the context of intersex persons.

Prohibiting Unnecessary Medical Interventions

In 2019, the Madras High Court came out with a landmark ruling in Arunkumar v. Inspector General of Registration (2019 KHC 4479) covering issues pertaining to sex reassignment surgery on intersex children. The court defined intersex children as children whose genitalia belongs to neither (male nor female) category. The court directed the government “to issue a G.O. [Government Order] prohibiting the performance of sex reassignment surgery on intersex infants and children.” Following this, Tamil Nadu (via G.O. (Ms) No. 355) became the first state in India to ban sex-selective sex reassignment surgery on intersex children, except for life-threatening situations. Here, assessment as to whether a situation is life-threatening or not shall be done by a committee formulated by the Director of Medical Education, ensuring that this exception is not misused.

While similar issues were raised in the Delhi High Court in Srishti Madurai Educational Research Foundation v. Govt. of NCT of Delhi (W.P.(C) 8967 of 2021). Here, the Delhi Commission for Protection of Child Rights was asked to give recommendations, based upon which the Delhi government was given eight weeks to draft a policy on the matter. Yet, at present, the government has not come out with any draft, leading to the court ordering a contempt notice after granting appropriate time (Cont. Cas(C) 1252/2023).

Types of Intersex Persons

Slight differences and nuances in the concept:

Intersex and Transgender Persons

The term 'intersex' is often subsumed to be part of the larger transgender umbrella. Even the present legal framework under the Transgender Persons Act, 2019, believes intersex persons to be considered as transgender persons. This move came to be highly criticised by activists throughout India, and demands were made for a separate law concerning the rights of intersex persons.

To understand the differences between the terms, it is important to note the differences between ‘sex’ and ‘gender’. Sex refers to one's biological characteristics, including their primary and secondary reproductive anatomy and composition of their chromosomes. Typically, individuals’ bodies are considered to fit neatly into one of the two sexes, based upon their biological characteristics. Gender, on the other hand, is a social construct that describes how an individual should behave, based largely upon sex, and the roles and expectations placed upon them.

Intersex individuals, thus, possess a body that does not fit into the neat idea of two sexes, having one or more characteristics of the ‘other’ sex. While transgender persons are those whose gender identity does not align with the one assigned to them at their birth. They may wish to identify themselves as a man, woman or non-binary. Therefore, while an intersex person may identify as a trans individual, based upon the gender assigned to them at birth, not all trans persons are intersex individuals.

Intersex Persons and Eunuch

The Supreme Court in the NALSA judgement, in the context of intersex persons,  merely mentioned ‘eunuch’ as being “an emasculated male and intersexed person whose genitals are ambiguously male-like at birth, but this is discovered the child previously assigned to the male sex, would be recategorized as intersexed-as a Hijra.” Yet the term 'eunuch' itself appears to be a gross mistranslation of Indian terms, confining and derogating a variety of gender-based and sexual practices.

Similarly, while a transgender individual might belong to one or multiple of the socio-cultural identities present in India (including Hijra, Kothi, Aravanis, Jogtas, etc.), it cannot be said that they will be an intersex person, nor can the terms be used interchangeably.

Variations/multiple meanings in terms of usage in research and per civil society:

Often in research, even today, the terms 'intersex person' and 'hermaphrodite' are used interchangeably. The latter refers to “an animal or plant having both male and female reproductive organs, structures, or tissue.” Even when an individual may be born with both ovarian and testicular tissue, it is considered insensitive to refer to them with a biological term with a narrow meaning utilised for non-humans. Further, intersex bodies exist with a variety of variations, and it would be improper to refer to them as hermaphrodites, as it may create wrong assumptions.

Similar is the case with the term “disorders of sex development”. The use of ‘disorders’ makes the term stigmatizing, as it pathologizes, as if there exists an inherent issue that needs to be addressed.

International Experience

Learnings or Best Practices

Australia

Australia became one of the first nations to add intersex status as a protected category in order to prohibit discrimination against intersex individuals (Act no. 98 of 2013). According to the act, intersex status refers to “the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male.”

Malta

Malta became the first nation to prohibit discrimination based on “sex characteristics”, alongside prohibiting unnecessary medical intervention for the same in minors (Act XI of 2015). Here, “sex characteristics” are defined as “the chromosomal, gondal and anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and, or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and, or structure.” The act prohibits any sex assignment surgery, or any surgical intervention of the sex characteristics of a minor, unless the minor provides informed consent for the same. Even without the minor’s consent, the act contemplates intervention to be allowed in cases approved by an interdisciplinary committee formed by the ministry, as long as the same is not “driven by social factors.”

Germany

In 2021, Germany brought out the Act on the protection of children with variations of sex development (Circular 19/27927), which prohibited interventions that attempted to modify a child’s sex characteristics in order to make their appearance similar to male or female. This shall not apply in case the surgical intervention needs to be performed quickly to save the life or protect the health of the minor. Similarly, surgical interventions that lead to approximation of one's sexual characteristics to that of a normative male or female are valid, provided that this is not the sole aim of the intervention and that the same cannot be delayed till the individual is competent to consent. In this case, merely the consent of the parent is not enough, and it would need to be approved by a family court, provided again that the intervention is not urgently required to protect the life or health. Although the law is still not perfect, with it lacking comprehensive protection, having a vague definition about urgency, and having an improper enforcement mechanism.

Kenya

Kenya, in 2023 became the first African nation to recognize and grant equal rights to intersex individuals through its Intersex Persons Act, 2023. The law defines intersex persons as individuals with “a congenital condition in which the biological sex characteristics cannot be exclusively categorized in the common binary of female or male due to inherent and mixed anatomical, hormonal, gonadal or chromosomal patterns…” The law, in addition to prohibiting harmful practices against intersex individuals, provides for registration of the intersex children at birth according to the Births and Deaths Registration Act (Act No: CAP. 149). It further puts the onus on educational institutions, healthcare providers, and parents and guardians of the child to ensure that the dignity and equal rights of intersex individuals are upheld. Lastly, another notable change that the law makes is establishing the National Advisory Committee on Intersex Persons, which shall function as an advisory body to the Kenya National Commission on Human Rights to ensure that the rights of intersex individuals are adequately protected and safeguarded.

Research that engages with Intersex Persons

Intersex Justice in India: A Country Report on the situation of intersex rights in India

In 2024 Intersex Asia published its report on India titled “Intersex Justice in India: A Country Report on the situation of intersex rights in India”. The report comments on the various issues that intersex individuals face in India, along with noting the areas where further changes are still required. It details the historical experience of stigmatization and criminalization that intersex individuals faced in British India and even up till quite recently, as well as mentioning newer legal developments and their gaps.

Based not only upon secondary sources but also on inputs from intersex activists, the report is able to highlight some of the concerns that are typically missed out on. It notes how, due to lack of institutional awareness, intersex individuals are not accommodated in the process of documentation change, adoption or appropriate care. Lastly, as part of its recommendation, the report focuses on training and sensitization, not only of healthcare professionals but also of administrative staff and of students as part of comprehensive sexual education, alongside support and counselling.

Right to Genital Integrity: Law, Limbo, and the Status of Intersex Children in India

In “Right to Genital Integrity: Law, Limbo, and the Status of Intersex Children in India”, Shardha Rajam & Atreyo Banerjee make a case for India to ensure protection of intersex children from unnecessary medical intervention related to their sex characteristics. Moving away from classical bioethics principles, the paper argues that care, instead of unnecessary interventions, shall be provided to intersex children, based upon a feminist and queer bioethics framework. It further focuses on the interpretation of international legal instruments in order to uphold the fundamental rights of intersex individuals. Finally, noting the fallacies of the Indian law, it recommends that the way forward shall focus on ensuring the best interest of the child and working towards a complete prohibition of such “normalising” surgeries.

Beyond the Binary: Advocating Legal Recognition for Intersex Persons in India

The policy brief titled, “Beyond the Binary: Advocating Legal Recognition for Intersex Persons in India” was published in 2020, though the joint collaborative effort of the Centre for Law and Policy Research and the Solidarity Foundation. The brief begins with a brief introduction of the queer and intersex rights movement in India, highlighting the various gaps and challenges, including those with a lack of separate legislation relating to intersex persons. At the same time, it focuses on the need for a separate definition, outside the transgender umbrella, exploring how the same has been done internationally.

The brief highlights two prominent issues faced by intersex individuals in India, namely forced surgical interventions performed on intersex children and lack of recognition of intersex children in the registry. These persistent issues continue to enforce the normative notion of only two possible sexes, ignoring intersex individuals completely. Lastly, the brief recommends that unnecessary surgical interventions shall be prohibited, individuals shall be allowed to easily change their sex/gender markers, including no or temporary markers, and support and training shall be provided.

Challenges

Among the various challenges discussed above, one of the most popular concerns that emerges among intersex activists worldwide is that of unrequired surgeries, or, as they are termed, “normalizing” surgeries done on intersex children without their informed consent. This form of ‘curative violence’ often happens without regard for the dignity or privacy of the child involved. Even when these surgeries are done, they are not based upon the welfare of the child; rather, focus is given to making the child’s anatomy appear similar to that of a normative male body.

Another concern that has especially gained notoriety in recent years is the exclusion of intersex individuals from sporting events. Specifically, in the female category, sportspersons from marginalized groups, or who do not fit into western beauty standard, are made to undergo the humiliating sex testing. Even if the Court of Arbitration for Sports put a moratorium on the International Amateur Athletics Federation (IAAF) Hyperandrogenism Regulations, such testing caused immense harm to athletes like Dutee Chand, being violative of one’s privacy and dignity along with being coercive.

Lastly, another prominent concern among intersex activists is that of a lack of any legal recognition. The Transgender Persons Act, 2019, through its inclusion of intersex identities into the larger transgender umbrella, already reduces visibility for the community, without granting any special rights through such inclusion. Further, neither are intersex individuals granted a separate sex category, continuing the process of dividing intersex individuals into the binary sexes. Even when in such a binary, it is nonetheless hard for individuals to easily change their gender identity from the one that was assigned to them at birth.

Way Forward

The way forward to uphold the rights of intersex individuals would first and foremost include ensuring that the identity itself be recognized and validated in policies and laws. There is a lack of any systematic data on intersex individuals, due to their present categorization as trans individuals and the individuals' own hesitation to reveal or even be aware of their identity. Without adequate numbers it will be almost impossible to push for policy or legal change; thus, this recognition is required. Additionally, while the Supreme Court itself issued notice to the center on the issue of unnecessary surgical interventions on intersex children, it is required that the harmful practice be stopped as early as possible.

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Page created 2026-08-21  ·  Last updated 2026-08-23