The Kerala High Court on Monday said that the ‘right to choose gender’ is vested only with the individual concerned and the court cannot grant permission for conducting non-consensual sex affirmative surgery. The court said that while the terms ‘gender’ and ‘sex’ were often used interchangeably in casual conversation, they were, in actuality, ‘two distinct concepts’ related to human identity and biology.

“Sex refers to the biological characteristics of a person, particularly in relation to their reproductive anatomy and chromosomal composition. Gender, on the other hand, is a social and cultural construct that encompasses the roles, behaviours, expectations, and identities associated with being male-female or non-binary,” the court said.

The court made the remarks while hearing a plea by the parents of a 7-year-old child born with ambiguous genitalia, seeking the court’s permission to conduct a genital reconstructive surgery for raising the child as a female. The child was diagnosed with ‘Congenital Adrenal Hyperplasia’, and was undergoing treatment for the same. They apprised the court that the doctors are not prepared to conduct the surgery without orders from the competent court.

Advocate for the petitioners submitted that the parents are best suited to decide the future of the child and delaying the decision will cause undue trauma to the child and hardship to the family. On the other hand, Government Pleader PS Appu suggested the constitution of State Level Multidisciplinary Committees to take a studied and legally sound decision.

The high court denied granting recognition to the right of the parents to decide the gender of their minor child, without the minor’s consent and ignorant of the child’s ‘orientation’.

“If democracy is based on recognition of the individuality and dignity of man, the right of a human being to choose his/her sex or gender identity, which is one of the most basic aspects of self- determination, dignity and freedom has to be recognised. Conversely, intervention with an individual’s right to choose sex or identity will definitely be an intrusion into that person’s privacy and an affront to his/her dignity and freedom,” the court said.

The court said that though parents have raised concern regarding the child’s health, the medical records do not make out a case warranting immediate intervention. “No doubt, there can be such intervention, if so recommended by a duly constituted medical board,” it said.

The court directed the State Level Multidisciplinary Committee to examine the child within two months and decide whether the child is facing any life-threatening situation by reason of the ambiguous genitalia. If so, permission can be granted for carrying out the surgery, it added.