On What Basis a Gender of a Person Should Be Determined:

From Corbett to Nalsa

Sex is assigned to a person at the time of birth i.e. it may be either male or female. However,
small proportions of people are born with body which may either does not conform to the
biological attributes of male & female anatomy or incorporate the characteristics of both
male and female physiology. These are called as Transgender individuals. Is there any
provision or test to determine the gender of these individuals?

Biological Basis to Determine the Gender

Corbett v. Corbett1, was the first case in which the judges took upon themselves so as to
determine the gender of a person. Omrod J, set out a biological criteria (Corbett test) so as to
determine the gender of an individual. According to him, the gender of an individual should
be determined on following basis:
I. Chromosomal;
II. Gonadal (presence or absence of testis or ovaries);
III. Genital; and
IV. Psychological.
Initially, it was held that one should adopt the first three of doctor’s criteria so as to determine
the gender of an individual. If all three are congruent then the gender of an individual should
be determined accordingly. In case, these three are incongruent, then more emphasis should
be given to genital criteria in determining the gender of an individual.

Corbett/Biological Test has become Obsolete

There have been end numbers of advancements in medical and scientific arena in subsequent
years. Consequently, Corbett test have become a subject of constant criticism from several
countries such as New Zealand, Australia and India etc. Same has been re-affirmed in
following cases:
1) R v. Harris & McGuiness2: It was held that the decision in Corbett v. Corbett and
R v. Tann which gave emphasis to biological criteria in determining the gender of
an individual should not be followed
2) Deptt. Of Social Security v. SRA3: Court was of the view that individual’s identity
is not a matter of mere chromosomal testing and more emphasis should be given to
1
Corbett v. Corbett, 1971 P 83: (1970) 2 WLR 1306: (1970) 2 All ER 33.
2
R. v. Harris & McGuiness, (1988) 17 NSWLR 158.

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 one’s psychological quest of self-perception and how society perceives an
individual.
3) Attorney General for the Commonwealth v. Kevin and Jennifer4: Citing the
above cases, it was affirmed that there was no reason to exclude psyche as one of
the most important factor in determining the gender of an individual. Other factors
being how society perceives an Individual.

Psychological Basis
Literal meaning of the word “Gender” was interpreted by Supreme Court in Nalsa case as it
deals with one’s self image and deep psychological or emotional sense of sexual identity and
character.
Supreme Court in Nalsa5, held that Corbett test is obsolete and out of touch with medical and
social realities of today. Further, one should prefer to follow the psyche of the person in
determining the gender and prefer the “Psychological test” instead of “Biological test”. The
main objective behind scraping the Corbett principle was to promote the principle of “Self
perceived Gender Identity”.
Gender Identity refers to person’s intrinsic sense of male, female or transsexual person as it
forms the core of one’s personal self, based on self-identification, not on surgical or medical
procedure. Special reference was made to Argentine Legislation which was passed in the year
2012. Under that particular legislation, an individual can request to change its gender and one
does not need to prove that any sex re-assignment surgery has taken place. Based on Nalsa
judgement, The Transgender Persons (Protection of Rights) Bill 2019 has been passed in Lok
Sabha.

Lacunae in Transgender Persons (Protection of Rights) Bill, 2019

This bill has passed in recently in Lok Sabha with 27 amendments that were proposed in
initial draft. However, it has been a subject to constant criticism from Transgender
Community as it violates the principle of “Self Perceived Gender Identity”.This bill made a
two-step process for legal gender recognition:
 First, it requires a transgender person to apply for a “Transgender Certificate”.

3
Deptt. of Social Security v. “SRA”, (1993) 118 ALR 467 : (1993) 43 FCR 299 (Aust).
4
Attorney General for the Commonwealth v. “Kevin and Jennifer” & Human Rights and Equal Opportunity
Commission, 2003 Fam CA 94 (Aust).
5
National Legal Services Authority v. Union of India, (2014) 5 SCC 438 : 2014.

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  Then, a certificate holder can apply for a “Change in Gender Certificate”, so as to
notify the authorities regarding the change in his/her legal gender.
The second step is in direct contravention with Supreme Court guidelines as the bill mandates
an individual to undergo Sex Re-assignment Surgery so as to apply for change in its Gender.
The certificate would be issued only after the satisfaction of District Magistrate and Medical
Superintendent. This means, even though the word “Screening Committee” has been deleted
but the practice of the same still exists. Further, the bill does not provide a Transgender
individual with “Right to Appeal” in case the District Magistrate refuses to issue the
Certificate.
One needs to understand that Transgender people in India should be able to live with dignity
and non-discrimination. “To enact a law that meets international standards, it’s critical that
parliament fully bring transgender people into the conversation.”

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