"Gender Identity Is Fluid": Solicitor General Tushar Mehta Asks If This Is For The Court To Decide Or A Matter Of Legislative Policy?

Solicitor General (SG) Tushar Mehta on Wednesday (26 April) told the Supreme Court that gender was fluid and took several forms, an aspect which “could not be reconciled with the law”. 

His statements were made before a Constitution Bench of the Supreme Court comprising the Chief Justice of India D Y Chandrachud and justices Sanjay Kaul, Ravindra Bhat, Hima Kohli and P S Narasimha. The bench is hearing a batch of petitions to legalise same-sex marriages. 

SG Mehta was quoted as saying, “A person who does not identify with any gender is called agender, genderless, and there are people who change gender as per surroundings… Then there is gender change as per mood swings… there is amicagender where gender changes as per friends they have, anogender where gender identity fades in and out with intensity and comes back with another gender identity,” as reported by Bar and Bench.

He said, “These are facts without value judgment. Will it be prudent to lay down regulations even if the court gives them the status of marriage? This is inconceivable.” 

His statements have come just days after CJI Chandrachud’s remarks during a hearing in the same case that gender is not limited to genitals and the notion of “biological man and biological woman is not absolute”. 

Mehta also cited the debates of the Constituent Assembly during the passage of the Special Marriage Act to show that the framers of the Constitution were aware of homosexuality and chose to keep it out of the Act. 

“The Parliament was aware of gays and lesbians even at the time of the introduction of Hindu code bills and special marriage act,” he says in a reply to advocate Mukul Rohatgi’s arguments.