Intersex rights by country

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Intersex people are born with sex characteristics, such as chromosomes, gonads, or genitals that, according to the UN Office of the High Commissioner for Human Rights, "do not fit the typical definitions for male or female bodies".[1][2] Such variations may involve genital ambiguity, and combinations of chromosomal genotype and sexual phenotype other than XY-male and XX-female.[3][4]

Intersex infants and children may be subject to stigma, discrimination and human rights violations, including in education, employment and medical settings.[1] Human rights violations in medical settings are increasingly recognized as human rights abuses.[5][6][7][8] Other human rights and legal issues include the right to life, access to justice and reparations, access to information, and legal recognition.[9][10]

Implementation of rights protections in legislation and regulation has been slower. Few countries so far protect intersex people from discrimination, or provide access to reparations for harmful practices.[9][10]

The human rights of intersex people[edit]

  Legal prohibition of non-consensual medical interventions
  Regulatory suspension of non-consensual medical interventions
  Explicit protection from discrimination on grounds of sex characteristics
  Explicit protection on grounds of intersex status
  Explicit protection on grounds of intersex within attribute of sex

In 2015, an Issue Paper on Human rights and intersex people by the Council of Europe highlighted several areas of concern:

  • unnecessary "normalising" treatment of intersex persons, and unnecessary pathologisation of variations in sex characteristics;
  • facilitating access to justice and reparations;
  • inclusion in anti-discrimination, equal treatment and hate crime law;
  • unnecessary medicalisation is said to also impact a right to life;
  • access to information, medical records, peer and other counselling and support;
  • legal recognition.[9]

According to the Asia Pacific Forum of National Human Rights Institutions, few countries have provided for the legal recognition of intersex people. The Forum states that the legal recognition of intersex people is:

  • firstly about access to the same rights as other men and women, when assigned male or female;
  • secondly it is about access to administrative corrections to legal documents when an original sex assignment is not appropriate; and
  • thirdly, while opt in schemes may help some individuals, legal recognition is not about the creation of a third sex or gender classification for intersex people as a population, but instead is about enabling an opt-in scheme for any individual who seeks it.[10]

In some jurisdictions, access to any form of identification document can be an issue.[11]

Intersex rights by continent and jurisdiction[edit]


Africa[edit]

Country/Jurisdiction Prohibition of harmful practices Reparations Anti-discrimination protection Access to identification documents Access to same rights as other men and women Changing M/F identification documents Third gender or sex classifications
Kenya Kenya No No Yes[11]
South Africa South Africa No Yes[12] Yes Subject to medical and social reports

Kenya[edit]

  • Access to identification documents: In 2014, a Kenyan court ordered the Kenyan government to issue a birth certificate to a five-year-old child born with ambiguous genitalia.[11] In Kenya a birth certificate is necessary for attending school, getting a national identity document, and voting.[11]

South Africa[edit]

  • Anti-discrimination law: In South Africa, the Judicial Matters Amendment Act, 2005 (Act 22 of 2005) amended the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000) to include intersex within its definition of sex.[12] Sex is one of the prohibited grounds under the act, which means that discrimination on the basis of sex is presumed to be unfair, and therefore prohibited, unless proven otherwise. The act provides that:
'intersex' means a congenital sexual differentiation which is atypical, to whatever degree; 'sex' includes intersex;

— Act 4 of 2000, section 1, as amended[13]

  • Access to changes in binary sex marker: The Alteration of Sex Description and Sex Status Act, 2003 (Act 49 of 2003) allows intersex people to change the sex recorded on their official documents. An applicant must submit a medical report indicating that they are intersex as well as a report from a psychologist or social worker indicating that they have lived for at least two years in the corresponding gender role.[14][15]


Americas[edit]

Country/Jurisdiction Prohibition of harmful practices Reparations Anti-discrimination protection Access to identification documents Access to same rights as other men and women Changing M/F identification documents Third gender or sex classifications
Argentina Argentina No No Yes Self-determination[16] No
Chile Chile Yes Regulatory suspension[17][18] November 2012, case before the Supreme Court of Chile.[19][20] No (Pending)[21][18][22]
Colombia Colombia No No, but restricted in children aged over 5. No Yes Self-determination
United States United States No Partial, in healthcare[23] No Laws on female genital mutilation not enforced[24] Yes Opt in, known for California, New York City, Ohio, Oregon only[25][26]

Argentina[edit]

  • Access to changes in binary sex marker: In 2012 the Argentine Congress passed the Ley de Género (Gender Law),[16] which allows any individual aged over 18 to change the gender marker on their national ID on the basis of a written declaration only. In doing so, Argentina became the first country to adopt a gender recognition policy based entirely on individual autonomy, without any requirement for third party diagnosis, surgeries or obstacles of any type.

Chile[edit]

  • Prohibition of harmful practices: In January 2016, the Ministry of Health of Chile ordered the suspension of unnecessary normalization treatments for intersex children, including irreversible surgery, until they reach an age when they can make decisions on their own.[17][18]
  • Reparations: On November 14, 2012, the Supreme Court of Chile sentenced the Maule Health Service for "lack of service" and to pay compensation of 100 million pesos for moral and psychological damages caused to a child, and another 5 million for each of his parents following surgery without informed consent.[19][20]
  • Anti-discrimination legislation: has been announced.[21][22]

Colombia[edit]

  • Protection from harmful practices: A case taken to the Constitutional Court of Colombia restricted the power of doctors and parents to decide surgical procedures on the ambiguous genitalia of children after the age of five, while continuing to permit interventions on younger children.[27]

United States[edit]

  • Access to same rights as other men/women: interACT states that they are "unaware of any jurisdiction in the U.S. that enforces its own FGM laws in cases where the girl undergoing clitoral cutting has an intersex trait".[24]
  • Third gender categories: On Intersex Awareness Day (October 26) 2015, Lambda Legal filed a landmark federal discrimination lawsuit against the United States Department of State for denying non-binary intersex navy veteran, Dana Zzyym, Associate Director of OII-USA, a passport.[30] On November 22, 2016, the District Court for the District of Colorado ruled in favor of Zzyym, stating that the State Department violated federal law.[31] The ruling stated that the court found “no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy,” and ordered the U.S. Passport Agency to reconsider its earlier decision.[32]
On September 26, 2016, intersex California resident Sara Kelly Keenan became the second person in the United States to legally change her gender to non-binary. Keenan, who uses she/her pronouns, identifies as intersex "both as my medical reality and as my gender identification... It never occurred to me that this was an option, because I thought the gender change laws were strictly for transgender people. I decided to try and use the same framework to have a third gender."[25] In December 2016, Keenan received a birth certificate with an 'Intersex' sex marker from New York City, which was the first intersex birth certificate issued in the United States; press coverage also disclosed that Ohio issued a birth certificate with a sex marker of 'hermaphrodite' in 2012.[33][26]

Asia-Pacific[edit]

Country/Jurisdiction Prohibition of harmful practices Reparations Anti-discrimination protection Access to identification documents Access to same rights as other men and women Changing M/F identification documents Third gender or sex classifications
Australia Australia No Yes At federal level[34] No Exemptions regarding sport and female genital mutilation[34] Yes Policies vary depending on jurisdiction[35] Yes Opt in at federal level, State/Territory policies vary[35][36]
China China No No
India India No No Yes[37] Emblem-question.svg
Nepal Nepal No No No[38] No[38]
New Zealand New Zealand No No No Exemptions regarding female genital mutilation[10] Yes Yes Opt in, and at birth if not possible to assign sex[39]
Thailand Thailand No No Warning Requires surgery[10]
Vietnam Vietnam No No Warning Requires surgery[10]

Australia[edit]

  • Prohibition of harmful practices: In October 2013, the Australian Senate published a report entitled Involuntary or coerced sterilisation of intersex people in Australia.[7][40][41][42][43] The Senate found that "normalising" surgeries are taking place in Australia, often on infants and young children, with preconceptions that it described as "disturbing": "Normalising appearance goes hand in hand with the stigmatisation of difference".[7] The report recommendations have not been implemented.
  • Anti-discrimination law: "Intersex status" became a protected attribute in the federal Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act on 1 August 2013, distinguishing intersex status from gender identity, sexual orientation, sex, and disability. It defines intersex as:[44][45]
intersex status means the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male.[44]
The Act facilitates exemptions in competitive sport but does not support exemptions on religious grounds.[46][47]
  • Access to same rights as other men/women: Australia's anti-discrimination protections facilitate exemptions in competitive sport.[46][48]
Australian laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.[49]
  • Third sex classifications: Australian research has shown that 19% of people born with atypical sex characteristics selected an "X" or "other" classification, while 52% are women and 23% men and 6% unsure.[50][51]
Australian federal guidelines enable all people to identify gender as male, female or X on federal documents, including passports. Documentary evidence must be witnessed by a doctor or psychologist, but medical intervention is not required.[36] Birth certificates are a State and Territory issue in Australia. Organisation Intersex International Australia states that identification changes are managed as an administrative correction.[52]

China[edit]

India[edit]

  • Anti-discrimination law: India does not have specific laws for intersex people.
  • Access to same rights as other men/women: Multiple Indian athletes have been subjected to humiliation, discrimination and loss of work and medals following sex verification. Middle-distance runner Santhi Soundarajan, who won the silver medal in 800 m at the 2006 Asian Games in Doha, Qatar, was stripped of her medal[53] and later attempted suicide.[54][55] Track athlete Pinki Pramanik was accused by a female roommate of rape and later charged, gender tested and declared male, though she and other medical experts dispute these claims.[56] Such testing is controversial: Indian athlete Dutee Chand won a case against the IAAF in 2015, enabling women athletes with high testosterone levels to compete as women, on the basis that there is no clear evidence of performance benefits.[57] In 2016, sports clinicians Genel, Simpson and de la Chapelle stated, "One of the fundamental recommendations published almost 25 years ago ... that athletes born with a disorder of sex development and raised as females be allowed to compete as women remains appropriate".[58]
  • Access to changes in binary sex marker: For people who need to change gender, the case of National Legal Services Authority v. Union of India allows this by self determination.[37] Actions in 2015 by gender rights organization Srishti Madurai seek to include intersex people in legislation on gender recognition for transgender people.[59]

In a reply to a letter from an intersex rights activist Gopi Shankar Madurai, the Ministry of Health and Family Welfare, India replied That “Any kind of invasive medical procedure including sex reassignment surgeries are done only after thorough assessment of the patient, obtaining justification for the procedure planned to be conducted with the help of appropriate diagnostic test and only after taking a written consent of the patient/guardian,”[60]

Nepal[edit]

  • Access to changes in binary sex marker: A 2016 report on the status and histories on intersex people in Nepal reported that "Intersex people cannot amend the name or gender marker on birth certificates and have difficulties changing documents including citizenship and educational certificates and transcripts if wanted".[61]

New Zealand[edit]

  • Prohibition of harmful practices: In October 2016, the UN Committee on the Rights of the Child issued observations on practices in New Zealand, including to ensure "that no one is subjected to unnecessary medical or surgical treatment during infancy or childhood, guaranteeing the rights of children to bodily integrity, autonomy and self-determination".[62] A 2016 Intersex Roundtable by the Human Rights Commission on genital "normalizing" surgeries found that there was a lack of political will to address surgeries, and concerns with service delivery to parents and families, the development of legislative safeguards, and a need to test the right to bodily autonomy against the Bill of Rights Act.[63]
  • Access to same rights as other men/women: Material presented by the Australasian Paediatric Endocrine Group to the Australian Senate in 2013 showed New Zealand to be a regional outlier in cases of congenital adrenal hyperplasia, with genital surgical interventions favoured on infant girls aged less than 6 months.[64] New Zealand laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.[49]
  • Third sex classifications: New Zealand passports are available with an 'X' sex descriptor.[65] These were originally introduced for people transitioning gender.[66] Birth certificates are available at birth showing "indeterminate" sex if it is not possible to assign a sex. The New Zealand Department of Internal Affairs states, "A person's sex can be recorded as indeterminate at the time of birth if it cannot be ascertained that the person is either male or female, and there are a number of people so recorded."[67]

Thailand[edit]

  • Access to changes in binary sex marker: Intersex persons who need to change sex assignment are able to "‘correct’ their honorific titles if they have undergone surgery," following action by the country's National Human Rights Commission.[10]

Vietnam[edit]

  • Access to changes in binary sex marker: Since a 2008 decree, intersex persons who wish to change sex assignment have been able to do so, subject to surgeries "at the earliest age". In 2017, a new law will come into effect enabling changes to sex assignment on the basis of "sex disability or their sex is not defined and requires medical intervention".[10]


Europe[edit]

Country/Jurisdiction Prohibition of harmful practices Reparations Anti-discrimination protection Access to identification documents Access to same rights as other men and women Changing M/F identification documents Third gender or sex classifications
Bosnia and Herzegovina Bosnia and Herzegovina No Yes[68]
Denmark Denmark No No Yes Self-determination[69] No
Finland Finland No Yes[70] Emblem-question.svg Emblem-question.svg No
France France No No No Emblem-question.svg Emblem-question.svg No
Germany Germany No Warning Two successful legal cases[71][72][73] No Emblem-question.svg Emblem-question.svg Warning Compulsory for some infants, otherwise not available[74][75]
Greece Greece No Yes[76]
Republic of Ireland Ireland No No Yes Self-determination[69] No
Jersey Jersey No Yes[77]
Malta Malta Yes Legislated[78] Yes[78] Yes Yes Yes Self-determination[69] Yes[79]
United Kingdom United Kingdom No No No Requires diagnosis of gender dysphoria[80] No

Bosnia and Herzegovina[edit]

Since August 1, 2016 Bosnia-Herzegovina anti-discrimination laws explicetly protect intersex people, that is listed as "sex characteristics".[68][81]

Finland[edit]

  • Anti-discrimination law: Since 2015, the Act on Equality between Women and Men includes "gender features of the body" within its definition of gender identity and gender expression, which are the prohibited grounds under the act, meaning that discrimination on these basics is prohibited.[82][70]

France[edit]

  • Prohibition of harmful practices and reparations: In 2017, a delegation of the Senate called for an end to some medical interventions on intersex children, and reparations.[83][84]
  • Third sex classifications: Gaëtan Schmitt is seeking a "neutral sex" civil status. The Court of Cassation is expected to rule on this matter in May 2017.[85]

Germany[edit]

  • Reparations:Two legal cases seeking reparations for unwanted, harmful medical interventions have succeeded, those of Christiane Völling and Michaela Raab.[71][72][73] Both were adults at the time of the medical interventions. There appear to be no statutory provisions offering reparations.
  • Third sex classifications: In November 2013, Germany became the first European country to allow "indeterminate" sex,[86] requiring this where a child may not be assigned male or female.[87] A report by the German Ethics Council stated that the law was passed because, "Many people who were subjected to a 'normalizing' operation in their childhood have later felt it to have been a mutilation and would never have agreed to it as adults."[86] The move is controversial with many intersex advocates in Germany and elsewhere suggesting that it might encourage surgical interventions.[88][86][89] The Council of Europe Issue Paper on intersex restates these concerns:
Human rights practitioners fear that the lack of freedom of choice regarding the entry in the gender marker field may now lead to an increase in stigmatisation and to "forced outings" of those children whose sex remains undetermined. This has raised the concern that the law may also lead to an increase in pressure on parents of intersex children to decide in favour of one sex.[9]

Greece[edit]

Since 24 December 2015, Greece prohibits discrimination and hate crimes based on "sex characteristics".[76][90]

Ireland[edit]

  • Access to changes in binary sex marker: On July 15, 2015, Ireland passed a bill that allows persons aged over 18 to change legal gender from male to female or female to male by self-determination, without requiring medical intervention.[91][92]

Jersey[edit]

  • Anti-discrimination law: Since 1 September 2015, Discrimination (Jersey) Law 2013 includes intersex status within its definition of sex. Sex is one of the prohibited grounds under the act, meaning that discrimination on this basis is prohibited. The act provides that:
"Sex"

(1) Sex is a protected characteristic.
(2) In relation to the protected characteristic –
(a) a reference to a person who has that characteristic is a reference to a man, a woman or a person who has intersex status;
(b) a reference to persons who share the characteristic is a reference to persons who are of the same sex.
(3) In this paragraph, a person has intersex status if the person has physical, chromosomal, hormonal or genetic features that are –
(a) neither wholly male or female;
(b) a combination of male or female; or
(c) neither male nor female

— Discrimination (Jersey) Law 2013, Schedule 1, as amended[77]

Malta[edit]

  • Prohibition of harmful practices and anti-discrimination law: In April 2015, Malta passed a Gender Identity Gender Expression and Sex Characteristics Act that protects intersex people from discrimination on grounds of "sex characteristics", and also recognizes a right to bodily integrity and physical autonomy.[78]
"sex characteristics" refers to the chromosomal, gonadal and anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and/or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and/or structure.[78]
The Act was widely welcomed by civil society organizations.[93][94][95][96][97]
  • Access to changes in binary sex marker and third sex classifications: At the same, Malta introduced new provisions allowing applicants to change their gender identity documents by a simple administrative method.[78][93][98] Malta also permits an "X" option on identification documents.[79]

United Kingdom[edit]

  • Access to changes in binary sex marker: The United Kingdom does not permit intersex people to change sex classification, except by declaring that they are transgender and following transgender medical protocols and a diagnosis of gender dysphoria.[80]


See also[edit]

Notes[edit]

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