Sex and gender should not be equalized as it leads to infringement of the rights of the LGBTQIA community. The constitutional bench headed by Chief Justice D.Y. Chandrachud discussed gender and sexuality concerning the Special Marriage Act, which does not include same-sex marriage. A careful observation of the politico-legal landscape of progressive and developed countries reveals that India still has a long way to go in ensuring the right to equality and the right to life and personal liberty of this community. Indian society lacks the education and awareness to develop a mindset of acceptance towards non-cis-gendered people.
Sex refers to a set of biological attributes in humans and animals. It is primarily associated with physical and physiological features including chromosomes, gene expression, hormone levels and function, and reproductive/sexual anatomy.
Gender refers to the socially constructed roles, behaviours, expressions, and identities of girls, women, boys, men, and gender-diverse people. It influences how people perceive themselves and each other, how they act and interact, and the distribution of power and resources in society. Gender identity is not confined to a binary (girl/woman, boy/man) nor is it static; it exists along a continuum and can change over time.
The concept of sex and gender has a long and complex history, with different cultures and societies having varying ideas about what it means to be male or female, and how these roles are constructed and performed.
In ancient Greece, for example, there was a strong emphasis on masculinity and the virtues of manhood, with men being seen as the superior sex and women relegated to subordinate roles. In contrast, in ancient Egypt, there was a more fluid understanding of gender, with some individuals being recognized as "third gender" or "intersex."
During the medieval period in Europe, gender roles became more rigid, with women confined to the domestic sphere and men occupying positions of power and authority.
The rise of the Enlightenment in the 18th century brought new ideas about individual freedom and human rights, challenging traditional gender norms and leading to the emergence of feminist movements advocating for women's rights and gender equality.
The terms sex and gender are often used interchangeably in everyday language, but their meanings are different. Sex is a biological concept and gender is a cultural construct. When the term gender is replaced by sex, the person's identity also gets replaced.
If we equalize sex and gender, we limit our society to male and female only, restricting personal identity exploration. This narrow view confines itself to only one approach and ignores all other possibilities.
The LGBTQIA+ acronym stands for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual, and others. Despite India's independence 76 years ago, the LGBTQIA+ group is still fighting for societal independence and basic rights.
During British rule in 1860, homosexual intercourse was considered unnatural and was declared a criminal offense under Chapter 16, Section 377 of the Indian Penal Code (IPC). On September 6, 2018, the Supreme Court ruled unanimously that Section 377 was unconstitutional in so far as it criminalizes consensual sexual conduct between adults of the same sex.
"Absolute concept of a man or an absolute concept of a woman" and that gender was 'far more complex' than one's genitals. - Chief Justice D.Y. Chandrachud.
A Constitution Bench headed by CJI Chandrachud was responding to the Centre's argument that laws, including the Special Marriage Act, recognized only heterosexual marriages between a "biological man and a biological woman". The Special Marriage Act (SMA), 1954 is an Indian law that provides a legal framework for the marriage of people belonging to different religions or castes.
In many countries, anti-discrimination laws prohibit discrimination based on both sex and gender. This means that individuals cannot be discriminated against because they are male or female, or because they do not conform to traditional gender roles or stereotypes.
Many countries have laws that allow individuals to legally change their gender on identity documents, such as passports and driver's licenses. This is important for transgender individuals who do not identify with the gender assigned to them at birth.
In some countries, laws protect individuals from discrimination based on their sexual orientation and gender identity. This is important for members of the LGBTQ+ community who may face discrimination and harassment.
Laws related to family and reproductive rights can be influenced by both sex and gender. For example, laws related to maternity leave may only apply to individuals who give birth, while laws related to access to fertility treatments may only apply to individuals who are biologically capable of reproducing.
In some countries, laws prohibit discrimination in education based on sex and gender. This includes protections for transgender students, such as the right to use the restroom and participate in sports activities that align with their gender identity.
International human rights law recognizes the right to equality and non-discrimination regardless of sex or gender identity. The United Nations has called for the recognition of gender identity as a fundamental human right, and some countries have enacted laws to protect the rights of transgender individuals.
Protection based on sexual orientation has been provided by the constitutions of Mexico, New Zealand, Portugal, Sweden, and South Africa. India still lacks a basic law that recognizes the protection of rights of people belonging to the LGBTQIA+ community or criminalizes any harassment or discrimination against them.
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