Dismantling the Myth of Biological Determinism

Background and Introduction

On 13 March 2023, a three-judge bench of the Supreme Court of India led by the Chief Justice of India, D.Y. Chandrachud, invoked Article 145(3) of the Constitution to refer a clutch of 20 petitions seeking the legal recognition of queer marriages to a Constitutional Bench of five judges comprising the Chief Justice himself and Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli. Despite the decriminalization of homosexuality in 2018, the issue of queer marriage has continued to stir controversy, evoking strong reactions from both activists and opponents. The final hearing of the petitions began on April 18, 2023 and is ongoing.

On the first day of the hearing, Chief Justice Chandrachud engaged in a heated debate with Solicitor General Tushar Mehta who was representing the Government of India in opposition to recognizing queer marriages under the Special Marriage Act, 1954. Mr. Mehta argued that the legislative intent of the Special Marriage Act was solely to solemnize a relationship between a “biological male and a biological female.” Hence, a reading of same-sex marriages and/or marriages between transgender people under the Special Marriage Act would be impermissible and beyond the purview of the Court. To this, the Chief Justice replied “There is no absolute concept of a man or an absolute concept of a woman at all. It’s not the question of what your genitals are.” 

In addition to the Solicitor General disagreeing with the Chief Justice, the social media backlash that followed the Chief Justice’s comments was swift and harsh, with some accusing the Chief Justice of promoting unscientific views of sex, not properly understanding the difference between sex and gender, and sharing views that could negatively affect women’s safety. Some even accused him of peddling ideas that were “imported from the West” and “woke”. However, the Chief Justice’s statement was neither wrong nor unscientific.

The  NALSA Judgment: A Constitutional Affirmation of the Fluidity of Gender and Sexuality 

It is noteworthy to mention that the Chief Justice’s remark about the non-absolute concept of man or woman was upheld by the Supreme Court in the landmark case of the National Legal Services Authority (NALSA) vs. Union of India (2014). This case featured the life story of Laxmi Narayan Tripathy, a Hijra, among others. Tripathy, who was born male, felt different from boys her age and was feminine in her ways. Due to her femininity, she faced repeated sexual harassment, molestation, and sexual abuse from an early age, both within and outside her family. Despite the prejudice she faced, she started to dress and appear in public in women’s clothing in her late teens but did not identify as a woman. Instead, she identified as a Hijra.

Similarly, Siddarth Narrain, who was also born male, identified as a woman from an early age and experienced physical and emotional abuse from his birth family. He eventually joined the Hijra community because they offered him a safe space.

The judgment in NALSA recognized that a person’s sex is usually assigned at birth, but a small group of people may be born with bodies that incorporate both or certain aspects of both male and female physiology- these persons are intersex. And while some intersex persons may be trangender, not all intersex persons are transgender. Additionally, some people’s innate perception of themselves is not in conformity with the sex assigned to them at birth. While some individuals may choose to undergo surgical and other procedures to alter their bodies and physical appearance to acquire gender characteristics, not everyone does. The Supreme Court affirmed that each person’s self-defined sexual orientation and gender identity are integral to their personality and are one of the most basic aspects of self-determination, dignity, and freedom; and that no one should be forced to undergo medical procedures as a requirement for legal recognition of their gender identity.  

The Chief Justice rightly observed that notions of male and female are not absolute concepts; The NALSA case recognized the fluidity of gender and thus, a constitutionally compliant reading of the Special Marriage Act would rightly include queer people. Mr. Mehta’s claim that a “biological man means biological man, there is no notion” overlooks the fundamental right of an individual to self-identify their gender under the NALSA judgment and thereby express themselves in a way most congruent with their notion of self.

The Instability of the Category of “Woman”: Judith Butler and Michel Foucault

In her groundbreaking text, Gender Trouble: Feminism and the Subversion of Identity (1990), noted philosopher and queer theorist, Judith Butler highlighted that even the characterization of “sex” as biological and “gender” as its social or cultural counterpart is not absolute either. This further refutes the opponents who claimed that the Chief Justice mistakenly conflated sex with gender.

Butler explains in detail how the very concept of “woman” is no longer understood in stable or abiding terms, and there is very little agreement on what constitutes, or ought to constitute, the category of “woman“- whether biological or otherwise. Noted philosopher Michel Foucault (whom Butler draws inspiration from) had previously argued in his seminal work, The History of Sexuality (Volume 1) that juridical systems of power “produce” subjects they subsequently come to represent. Therefore, legal conceptions of “man“, “woman” and now the “third gender” are produced not because these classifications are necessarily natural, but because juridical systems have the power to create, re-create, re-imagine, or possibly eliminate these classifications for the purposes of uniform interpretation and application of the law.

But if gender is socially constructed, what about sex? Feminist theory has historically postulated a split between sex and gender- the former being biological and the latter being cultural. However, if an individual’s conception of gender can be different from the sex assigned to them at birth, it is worth questioning how “sex” came to be defined as biologically deterministic in the first place and why it possesses purportedly enduring characteristics. The core characteristics of “biological sex” – anatomical, chromosomal, or hormonal – are up for debate, and so are the scientific discourses that decide unquestionable “facts” of what constitutes a “biological male” or a “biological female.” Foucault reminds us that, like the law, science is not immune to power. It is thus worth considering whether the purported duality and immutability of “biological sex“, as posited by the hegemonic scientific discourse, is established to act in the service of political and social interests. We already have evidence of persons who transcend the biological category of male and female (intersex), so how then was this duality naturalized and normalized in society? These questions complicate the notion of “sex” and lead one to wonder whether sex is gender?- both socially constructed.

The Significance of Nivedita Menon’s Thought Experiment: “The Gender Verification Test” 

In a response to those who cling to biologically deterministic views of sex, professor of Political Theory, Nivedita Menon expands Butler’s argument by proposing a thought experiment: “The Gender Verification Test“. This test includes the following three characteristics to slot individuals into either strictly  the “biological male” or “biological female” categories:

1. Genetic – XX chromosomal pattern for females and XY chromosomal pattern for males;
2. Hormonal – estrogen for females and androgen/testosterone for males; and
3. Genital – the visible physical characteristics of a penis for males and a vagina for females.

However, not everyone would pass this “test” and fulfill each of these three characteristics (Interestingly, genital characteristics were brought up during the hearings).

For example, people with the following chromosomal variations exist and would fail the test:

1. XO (Turner syndrome) is a condition where a female has only one X chromosome instead of the typical two. This can cause various developmental and medical problems, including infertility and short stature.
2. XXY (Klinefelter syndrome) is a condition where a male has an extra X chromosome, resulting in a chromosomal pattern of 47, XXY instead of the typical 46, XY. This can cause developmental and medical issues, including infertility and low testosterone levels.
3. XYY (Jacob’s syndrome) is a condition where a male has an extra Y chromosome, resulting in a chromosomal pattern of 47, XYY instead of the typical 46, XY. Most males with XYY syndrome have no symptoms, but some may have developmental and learning challenges.
4. XXX (Triple X syndrome) is a condition where a female has an extra X chromosome, resulting in a chromosomal pattern of 47, XXX instead of the typical 46, XX. Most females with Triple X syndrome have no symptoms, but some may have developmental and learning challenges.

While these conditions are relatively rare and most people have typical male or female sex chromosomes (46, XY for males and 46, XX for females), they highlight the complexity of biological sex determination and challenge the notion of a strict binary system of male and female.

Similarly, both sexes produce androgens and estrogens, although in different quantities. Intersex conditions may also result in variations in hormone levels. Even within the scientific community, there is no uniform consensus on the point at which a person has “enough” estrogen or androgen in their system to determine whether they enter womanhood or manhood . Procedures like metoidioplasty (a procedure that uses hormones to enlarge the clitoris and create a small penis), phalloplasty (a procedure to create a penis using tissue from other parts of the body), and vaginoplasty (a procedure to create a vagina using tissue from other parts of the body) question the sole existence of genitals as relevant to the determination of one’s biological sex. Thus, self-determination is key and the notion of a strict binary system of male and female, based solely on biological characteristics, is flawed and incomplete.

Self-Determining One’s Gender and Sexuality is a Fundamental Right

While the twin issues of marriage equality and the fluid notions of sex may remain contentious for the public, it’s crucial to recognize that the Chief Justice’s statement, “there is no absolute concept of a man or an absolute concept of a woman at all,” is both scientifically and sociologically true and reflects the core essence of the NALSA judgment. The position taken by Solicitor General Tushar Mehta, opposing the legal recognition of queer marriages under the Special Marriage Act, based on a biologically determinist approach to sex, is untenable in light of the evolving notions of family and gender.

In addition, it is important to note that while the ongoing proceedings have brought marriage equality and gender fluidity to the forefront, issues of non-binary identities remain underrepresented and misunderstood. Non-binary individuals, who do not identify as exclusively male or female, are also a vital part of the queer community, and their legal recognition should also be taken into consideration in any decision made by the Supreme Court of India.

About the Authors

Kanav N Sahgal

Kanav N Sahgal is the Communications Manager at Nyaaya. He holds a Master's in Development from Azim Premji University in Bengaluru and his expertise centers on global gender politics and the law, particularly focusing on gay rights and abortion rights. Kanav also has extensive experience in development communications, volunteer management, program management, and human resources management. He has worked with NGOs, not-for-profits, and for-profits engaged in various domains, including international development, environmental and social consulting, student leadership development, anti-human trafficking, and LGBTQIA+ advocacy. His writings appear regularly in platforms like The Hindu, Deccan Herald, Hindustan Times, The Diplomat Magazine, Cosmopolitan India, JURIST, The LSE Review of Books, and The Cambridge Global Affair. His perspectives have been quoted in publications like Mint Lounge, Outlook India, Time, DW News, The Telegraph, Bloomberg, and The Washington Blade, among others.