The practical limits of the gender determination aspect of the NALSA decision were tested on the 4th of October, 2019 when a single judge bench of the Madhya Pradesh High Court ordered a gender determination test in a matrimonial dispute. In this blog, I will summarize the facts and the decision, and demonstrate that: 1. There is still confusion about the definition of transgender, and intersex persons are considered to be transgender; and 2. That this decision provides a legal imitation to the fundamental right to self-determined gender identity.
The facts of the case were that the petitioner (wife) and the respondent (husband) were married in 2009 in Jabalpur. However, after some time, a dispute arose between the parties and the wife filed a petitioner under Section 9 of the Hindu Marriage Act, 1955, in the Family Court at Jabalpur. As per Section 9, if a party to the marriage withdraws from the company of the other without any reasonable excuse then the other party can file a petition for the restitution of conjugal rights. Once this petition has been filed, the court will examine whether there exists any legal reason for not granting the restitution. If no such reason exists then the court can order the withdrawing party to resume cohabitation with the deserted party.
Incorrect Understanding of the Meaning of Transgender
In response to the petition filed by the wife, the husband argued that the wife lacked any womanly attributes, and that she was transgender. In his response, the husband also prayed that the wife’s gender be determined by testing at the local hospital in Jabalpur. The wife claimed the argument of the husband to be frivolous because it had been eight years since their marriage, and their marriage had been consummated, and the husband had never raised such doubts before. Note that the wife did not raise an argument of self-determination i.e. she did not argue that based on NALSA, gender identity is a matter of self-determination. In other words, she did not resist the gender determination test on the grounds of self-determined gender but on the grounds of consummation and passage of time. Therefore, it is arguable that in this case when the husband alleged that the wife was transgender, he was not referring to her internally felt gender identity but to an intersex condition that the wife possessed, which she rebutted by arguing that their marriage had been consummated and the husband had never raised this as an issue before. If this argument holds then this case betrays a lack of understanding. Being transgender is not the same as having an intersex condition. Intersexuality is a biological condition in which the internal and/or the external sexual characteristics do not match with those typically assigned to males and females. Being a transgender person means that one’s truly felt gender identity does not match with the gender assigned at birth. Having an intersex condition does not make one transgender per se and vice versa. However, the NALSA judgment has included intersex persons within the definition of transgender, arguably to offer protection to those intersex children who are given away at birth to the Hijra community. The other reason for this inclusion could be that some intersex adults may grow up and choose to align themselves to a gender different from the one assigned to them at birth (though this is true of anyone, whether intersex or not) and therefore this group is included in the definition of transgender by the Supreme Court.
Gender Testing and Impact on the NALSA Decision
Before coming before the High Court, this question of gender testing had been considered at the Family Court level in Madhya Pradesh with respect to the same parties. The judge of the family court had allowed the gender testing. The case mentions that the judge had taken this decision, “taking note of the medical papers submitted by the respondent in respect of the petitioner’s physical attributes.” However, the case does not mention what papers the husband had submitted and does not raise any question as to how these papers had indeed been procured. To rebut the argument of gender testing, the counsel for the wife also argued that such a test violated the fundamental rights of the wife embedded under Article 20(3) and 21, and also violated her right to privacy. Whereas Article 20(3) protects a person from being compelled to be a witness against themselves, Article 21 protects the right to life from arbitrary interference. Recently, the Supreme Court has confirmed that the right to privacy is one of the rights protected under Article 21 (in the Puttaswamy case). Note once again that the defence raised by the wife does not flow from the NALSA decision.
However, the judge of the High Court while considering this question, alluded to the NALSA decision when he stated, “ [the] court is conscious of the fact that one’s sex/gender is one’s own business.” However, the court read into this right a qualification which was this: if gender was a relevant question in the dispute between the parties then evidence on that could be considered. In the words of the court:
In a matrimonial dispute, if gender of one of the parties is questioned by the other party, it assumes importance and the party raising such issue also has a right to adduce the evidence in this behalf and the other party, to rebut the same.
It reasoned that although gender was one’s own business, in the context of a marriage it assumed importance to maintain a peaceful and healthy married life. In fact, the court went on to say that the Article 21 rights of the party requesting the gender testing were at stake while considering the legality of the test. The Article 21 rights of the husband to know the correct gender of the wife trumped the Article 21 privacy rights of the wife to resist a gender test. The court analogized by noting that in matrimonial cases, testing for impotency and DNA have been previously been allowed by courts, which similarly allegedly infringed the right to privacy under Article 21. Accordingly, the court ordered that the wife undergo gender testing and the result be submitted to the court in a sealed envelope. With this order, the petition was dismissed.
This decision necessarily qualifies the fundamental right to self-determined gender at least in one situation. The gender identity of a person in a matrimonial dispute can be determined by a medical test. However, does this qualification apply only against intersex persons or against all transgender persons? This question has not been answered by the case.
 Thanks to L. Ramakrishnan of SAATHII for alerting me to this reason.