The SC’s nod comes as an expansion of its ongoing efforts to sensitise the legal fraternity — and by extension, the people of the land — to the nuances of neutral language.
In a sign of progressive intent, a three-judge Supreme Court (SC) bench, comprising Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra extended the ambit of pregnancy to include non-binary people and transgender men, among other gender identities, in addition to cisgender women. In its ruling in A (Mother of X) v. State of Maharashtra, involving the termination of pregnancy of a 14-year-old girl, the judges used the term “pregnant person/(s)” over 40 times, clarifying in a footnote that their reason for doing so was an acknowledgement of a wider, more inclusive gender spectrum. In a country where gender rights, including, especially, LGBTQIA+ rights, has had a chequered trajectory, this is a welcome, necessary step.
The SC’s nod comes as an expansion of its ongoing efforts to sensitise the legal fraternity — and by extension, the people of the land — to the nuances of neutral language. In August last year, launching its Handbook on Combating Gender Stereotypes, the Court had emphasised how impartiality is critical to the language of judicial discourse, capable of impacting procedural outcomes adversely, should it make room for paternalistic or prejudicial interpretations. In its introduction, the CJI wrote that the use of outdated language “inhibits the transformative project of the law and the Constitution of India, which seek to secure equal rights to all persons, irrespective of gender”. The current observation is rooted in that spirit.
In broadening categories of identity, this shift in language goes beyond semantics. It urges a reimagination of gender and intersectionality that is not limited to binaries and that recognises the agency of individuals. For transgender men and non-binary people who choose to become pregnant, navigating healthcare and legal frameworks can be discriminatory and isolatory at the best of times. The Court’s acknowledgement represents a vital step towards recognising legal protections for everyone capable of experiencing pregnancy. It is also in keeping with the language of its judgment on same-sex marriage last year in which it urged for legislative safeguards for same-sex couples. In lending institutional heft to the ongoing conversation around the use of gender-neutral language to reference matters of pregnancy, including abortion and fertility, the Court has set a precedent for legal systems and lower courts. While it takes time for change to take root — the legal battle for same-sex marriage, for instance, has been ongoing for decades — this could pave the way for a less conservative and more atypical understanding of gender and family.
