Intersex human rights

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Participants at the third International Intersex Forum, Malta, in December 2013

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 typical binary notions of male or female bodies".[1]

Intersex infants and children, such as those with ambiguous outer genitalia, may be surgically and/or hormonally altered to fit perceived more socially acceptable sex characteristics. However, this is considered controversial, with no firm evidence of good outcomes.[2] Such treatments may involve sterilization. Adults, including elite female athletes, have also been subjects of such treatment.[3][4] Increasingly these issues are recognized as human rights abuses, with statements from UN agencies,[5][6] the Australian parliament,[7] and German and Swiss ethics institutions.[8] Intersex organizations have also issued joint statements over several years, including the Malta declaration by the third International Intersex Forum.

Implementation of human rights protections in legislation and regulation has been slower. In 2011, Christiane Völling won the first successful case brought against a surgeon for non-consensual surgical intervention.[9] In 2015, the Council of Europe recognized, for the first time, a right for intersex persons to not undergo sex assignment treatment.[10] In April 2015, Malta became the first country to outlaw non-consensual medical interventions to modify sex anatomy, including that of intersex people.[11][12]

Other human rights and legal issues include the right to life, protection from discrimination, access to justice and reparations, access to information, and legal recognition.[10][13] Few countries so far protect intersex people from discrimination, or provide access to reparations for harmful practices.[10][13]

Contents

Intersex and human rights[edit]

Research indicates a growing consensus that diverse intersex bodies are normal—if relatively rare—forms of human biology,[14] and human rights institutions are placing increasing scrutiny on medical practices and issues of discrimination against intersex people. A 2013 first international pilot study. Human Rights between the Sexes, by Dan Christian Ghattas,[15][16] found that intersex people are discriminated against worldwide:

Intersex individuals are considered individuals with a «disorder» in all areas in which Western medicine prevails. They are more or less obviously treated as sick or «abnormal», depending on the respective society.

The Council of Europe highlights several areas of concern:

  • unnecessary "normalising" treatment of intersex persons, and unnecessary pathologisation of variations in sex characteristics.
  • unnecessary medicalisation is said to also impact a right to life.
  • inclusion in equal treatment and hate crime law; facilitating access to justice and reparations.
  • access to information, medical records, peer and other counselling and support.
  • respecting self-determination in gender recognition, through expeditious access to official documents.[10]

However, the implementation, codification and enforcement of intersex human rights remains slow. These actions take place through legislation, regulation and court cases, detailed below.

"Pinkwashing"[edit]

Main article: Intersex and LGBT

Multiple organizations have highlighted appeals to LGBT rights recognition that fail to address the issue of unnecessary "normalising" treatments on intersex children, using the portmanteau term "pinkwashing". In June 2016, Organisation Intersex International Australia pointed to contradictory statements by Australian governments, suggesting that the dignity and rights of LGBTI (LGBT and intersex) people are recognized while, at the same time, harmful practices on intersex children continue.[17]

In August 2016, Zwischengeschlecht described actions to promote equality or civil status legislation without action on banning "intersex genital mutilations" as a form of pinkwashing.[18] The organization has previously highlighted evasive government statements to UN Treaty Bodies that conflate intersex, transgender and LGBT issues, instead of addressing harmful practices on infants.[19]

Protection from non-consensual medical interventions[edit]

Main article: Intersex medical interventions
  Legal prohibition of non-consensual medical interventions
  Regulatory suspension of non-consensual medical interventions

Non-consensual medical interventions to modify the sex characteristics of intersex people take place in all countries where the human rights of intersex people have been explored.[15] Such interventions have been criticized by the World Health Organization, other UN bodies such as the Office of the High Commissioner for Human Rights, and an increasing number of regional and national institutions.

Several rights have been stated as affected by involuntary or coerced medical treatment, particularly that on minors:

  • the right to life.[10]
  • the right to privacy, including a right to personal autonomy or self-determination regarding medical treatment.[7][8]
  • prohibitions against torture and other cruel, inhuman and degrading treatment.[5][7]
  • a right to physical integrity[20] and/or bodily autonomy.[12][21]
  • additionally, the best interests of the child may not be served by surgeries aimed at familial and social integration.[8]

These issues have been addressed by a rapidly increasing number of international institutions including, in 2015, the Council of Europe, the United Nations Office of the United Nations High Commissioner for Human Rights and the World Health Organization. In April 2015, Malta became the first country to outlaw such interventions.[11][12] In the same year, the Council of Europe became the first institution to state that intersex people have the right not to undergo sex affirmation interventions.[10]

Constitutional Court of Colombia[edit]

Main article: Intersex rights in Colombia

Although not many cases of children with intersex conditions are available, a case taken to the Constitutional Court of Colombia led to changes in their treatment.[22] The case restricted the power of doctors and parents to decide surgical procedures on children's ambiguous genitalia after the age of five, while continuing to permit interventions on younger children. Due to the decision of the Constitutional Court of Colombia on Case 1 Part 1 (SU-337 of 1999), doctors are obliged to inform parents on all the aspects of the intersex child. Parents can only consent to surgery if they have received accurate information, and cannot give consent after the child reaches the age of five. By then the child will have, supposedly, realized their gender identity.[23] The court case led to the setting of legal guidelines for doctors' surgical practice on intersex children.

Maltese legislation[edit]

In April 2015, Malta became the first country to outlaw non-consensual medical interventions in a Gender Identity Gender Expression and Sex Characteristics Act.[11][12] The Act recognizes a right to bodily integrity and physical autonomy, explicitly prohibiting modifications to children's sex characteristics for social factors:

14. (1) It shall be unlawful for medical practitioners or other professionals to conduct any sex assignment treatment and/or surgical intervention on the sex characteristics of a minor which treatment and/or intervention can be deferred until the person to be treated can provide informed consent: Provided that such sex assignment treatment and/or surgical intervention on the sex characteristics of the minor shall be conducted if the minor gives informed consent through the person exercising parental authority or the tutor of the minor.

(2) In exceptional circumstances treatment may be effected once agreement is reached between the Interdisciplinary Team and the persons exercising parental authority or tutor of the minor who is still unable to provide consent: Provided that medical intervention which is driven by social factors without the consent of the minor, will be in violation of this Act.[24]

The Act was widely welcomed by civil society organizations.[21][25][26]

Chile[edit]

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.[27][28]

Right to life[edit]

Preimplantation genetic diagnosis (PGD or PIGD) refers to genetic testing of embryos prior to implantation (as a form of embryo profiling), and sometimes even of oocytes prior to fertilization. PGD is considered in a similar fashion to prenatal diagnosis. When used to screen for a specific genetic condition, the method makes it highly likely that the baby will be free of the condition under consideration. PGD thus is an adjunct to assisted reproductive technology, and requires in vitro fertilization (IVF) to obtain oocytes or embryos for evaluation. The technology allows discrimination against those with intersex traits.

Georgiann Davis argues that such discrimination fails to recognize that many people with intersex traits led full and happy lives.[29] Morgan Carpenter highlights the appearance of several intersex variations in a list by the UK Human Fertilisation and Embryology Authority of "serious" "genetic conditions" that may be de-selected, including 5 alpha reductase deficiency and androgen insensitivity syndrome, traits evident in elite women athletes and "the world's first openly intersex mayor".[30] Organisation Intersex International Australia has called for the Australian National Health and Medical Research Council to prohibit such interventions, noting a "close entanglement of intersex status, gender identity and sexual orientation in social understandings of sex and gender norms, and in medical and medical sociology literature".[31]

In 2015, the Council of Europe published an Issue Paper on Human rights and intersex people, remarking:

Intersex people’s right to life can be violated in discriminatory “sex selection” and “preimplantation genetic diagnosis, other forms of testing, and selection for particular characteristics”. Such de-selection or selective abortions are incompatible with ethics and human rights standards due to the discrimination perpetrated against intersex people on the basis of their sex characteristics.[10]

In 2015, it was reported that an intersex Kenyan adolescent, Muhadh Ishmael, was mutilated and later died. He had previously been described as a curse on his family.[32]

Protection from discrimination[edit]

  Explicit protection on grounds of sex characteristics
  Explicit protection on grounds of intersex status
  Explicit protection on grounds of intersex within attribute of sex
Main article: Discrimination against intersex people

A handful of jurisdictions so far provide explicit protection from discrimination for intersex people. South Africa was the first country to explicitly add intersex to legislation, as part of the attribute of 'sex'.[33] Australia was the first country to add an independent attribute, of 'intersex status'.[34] Malta was the first to adopt a broader framework of 'sex characteristics', through legislation that also ended modifications to the sex characteristics of minors undertaken for social and cultural reasons.[21] Bosnia-Herzegovina listed as "sex characteristics"[35][36] Greece prohibits discrimination and hate crimes based on "sex characteristics", since 24 December 2015.[37][38]

Education[edit]

An Australian survey of 272 persons born with atypical sex characteristics, published in 2016, found that 18% of respondents (compared to an Australian average of 2%) failed to complete secondary school, with early school leaving coincident with pubertal medical interventions, bullying and other factors.[39]

Employment[edit]

A 2015 Australian survey of people born with atypical sex characteristics found high levels of poverty, in addition to very high levels of early school leaving, and higher than average rates of disability.[40] An Employers guide to intersex inclusion published by Pride in Diversity and Organisation Intersex International Australia also discloses cases of discrimination in employment.[41]

Healthcare[edit]

Discrimination protection intersects with involuntary and coercive medical treatment. Maltese protections on grounds of sex characteristics provides explicit protection against unnecessary and harmful modifications to the sex characteristics of children.[12][21]

In May 2016, the United States Department of Health and Human Services issued a statement explaining Section 1557 of the Affordable Care Act stating that the Act prohibits "discrimination on the basis of intersex traits or atypical sex characteristics" in publicly-funded healthcare, as part of a prohibition of discrimination "on the basis of sex".[42]

Sport[edit]

Main article: Sex verification in sports

In 2013, it was disclosed in a medical journal that four unnamed elite female athletes from developing countries were subjected to gonadectomies (sterilization) and partial clitoridectomies (female genital mutilation) after testosterone testing revealed that they had an intersex condition.[43][44] Testosterone testing was introduced in the wake of the Caster Semenya case, of a South African runner subjected to testing due to her appearance and vigor.[43][44][45][46] There is no evidence that innate hyperandrogenism in elite women athletes confers an advantage in sport.[47][48] While Australia protects intersex persons from discrimination, the Act contains an exemption in sport.

Access to justice and reparations[edit]

Access to reparation appears limited, with a scarcity of legal cases.

Christiane Völling case, Germany[edit]

Main article: Christiane Völling

In Germany in 2011, Christiane Völling won what may be the first successful case against her medical treatment. The surgeon was ordered to pay €100,000 in damages[49][50] after a legal battle that began in 2007, thirty years after the removal of her reproductive organs.[9][51]

Benjamín-Maricarmen case, Chile[edit]

Further information: Intersex rights in Chile

On August 12, 2005, the mother of a child, Benjamín, filed a lawsuit against the Maule Health Service after the child's male gonads and reproductive system were removed without informing the parents of the nature of the surgery. The child had been raised as a girl. The claim for damages was initiated in the Fourth Court of Letters of Talca, but ended up in the Supreme Court of Chile. On November 14, 2012, the Court sentenced the Maule Health Service for "lack of service" and to pay compensation of 100 million pesos for moral and psychological damages caused to Benjamín, and another 5 million for each of the parents.[52][53]

M.C. v. Aaronson case, USA[edit]

Further information: Intersex rights in the United States

In the United States the M.C. v. Aaronson case, advanced by Advocates for Informed Choice with the Southern Poverty Law Centre was brought before the courts in 2013.[54][55][56] In 2015, the Court of Appeals for the Fourth Circuit dismissed the case, stating that, "it did not “mean to diminish the severe harm that M.C. claims to have suffered” but that a reasonable official in 2006 did not have fair warning from then-existing precedent that performing sex assignment surgery on sixteen-month-old M.C. violated a clearly established constitutional right."[57][58] State suits were subsequently filed.[57]

Michaela Raab case, Germany[edit]

In 2015, Michaela Raab sued doctors in Nuremberg, Germany who failed to properly advise her. Doctors stated that they "were only acting according to the norms of the time - which sought to protect patients against the psychosocial effects of learning the full truth about their chromosomes."[50] On 17 December 2015, the Nuremberg State Court ruled that the University of Erlangen-Nuremberg Clinic must pay damages and compensation.[59]

Access to information[edit]

With the rise of modern medical science in Western societies, many intersex people with ambiguous external genitalia have had their genitalia surgically modified to resemble either female or male genitals. Surgeons pinpointed the birth of intersex babies as a "social emergency".[60] A secrecy-based model was also adopted, in the belief that this was necessary to ensure “normal” physical and psychosocial development.[8][61][62] Disclosure also included telling people that they would never meet anyone else with the same condition.[7] Access to medical records has also historically been challenging.[10] Yet the ability to provide free, informed consent depends on the availability of information.

The Council of Europe[10] and World Health Organization[63] acknowledge the necessity for improvements in information provision, including access to medical records.

Some intersex organizations claim that secrecy-based models have been perpetuated by a shift in clinical language to Disorders of sex development. Morgan Carpenter of Organisation Intersex International Australia quotes the work of Miranda Fricker on "hermeneutical injustice" where, despite new legal protections from discrimination on grounds of intersex status, "someone with lived experience is unable to even make sense of their own social experiences" due to the deployment of clinical language and "no words to name the experience".[64]

Gender identities and legal recognition[edit]

Main article: Legal recognition of intersex people

Like all individuals, some intersex individuals may be raised as a particular sex (male or female) but then identify with another later in life, while most do not.[65][66][67] Like non-intersex people, some intersex individuals may not identify themselves as either exclusively female or exclusively male. A 2012 clinical review suggests that between 8.5-20% of persons with intersex conditions may experience gender dysphoria,[68] while sociological research in Australia, a country with a third 'X' sex classification, shows that 19% of people born with atypical sex characteristics selected an "X" or "other" option, while 52% are women, 23% men and 6% unsure.[40][69]

Depending on the jurisdiction, access to any birth certificate may be an issue,[70] including a birth certificate with a sex marker.[71] The Asia Pacific Forum of National Human Rights Institutions states that:

Recognition before the law means having legal personhood and the legal protections that flow from that. For intersex people, this is neither primarily nor solely about amending birth registrations or other official documents. Firstly, it is about intersex people who have been issued a male or a female birth certificate being able to enjoy the same legal rights as other men and women[13]

Access to a birth certificate with a correct sex marker may be an issue for people who do not identify with their sex assigned at birth,[10] or it may only be available accompanied by surgical requirements.[13]

The passports and identification documents of Australia and some other nationalities have adopted "X" as a valid third category besides "M" (male) and "F" (female), at least since 2003.[72][73] In 2013, Germany became the first European nation to allow babies with characteristics of both sexes to be registered as indeterminate gender on birth certificates, amidst opposition and skepticism from intersex organisations who point out that the law appears to mandate exclusion from male or female categories.[74][75][76] The Council of Europe acknowledged this approach, and concerns about recognition of third and blank classifications in a 2015 Issue Paper, stating that these may lead to "forced outings" and "lead to an increase in pressure on parents of intersex children to decide in favour of one sex."[10] The Issue Paper argues that "further reflection on non-binary legal identification is necessary":

Mauro Cabral, Global Action for Trans Equality (GATE) Co-Director, indicated that any recognition outside the “F”/”M” dichotomy needs to be adequately planned and executed with a human rights point of view, noting that: “People tend to identify a third sex with freedom from the gender binary, but that is not necessarily the case. If only trans and/or intersex people can access that third category, or if they are compulsively assigned a third sex, then the gender binary gets stronger, not weaker”[10]

Intersex rights by jurisdiction[edit]

Further information: Intersex rights by country, Discrimination against intersex people, and Legal recognition of intersex people


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[70]
South Africa South Africa No Yes[33] 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.[70] In Kenya a birth certificate is necessary for attending school, getting a national identity document, and voting.[70]

South Africa[edit]

Main article: Intersex rights in South Africa
  • 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.[33] 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[77]
  • 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.[78][79]


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[80] No
Chile Chile Yes Regulatory suspension[27][28] November 2012, case before the Supreme Court of Chile.[81][53] No (Pending)[82][28][83]
Colombia Colombia No No, but restricted in children aged over 5. No Yes Self-determination
United States United States No Partial, in healthcare[84] No Laws on female genital mutilation not enforced[85] Yes Opt in, known for California, New York City, Ohio, Oregon only[86][87]

Argentina[edit]

  • Access to changes in binary sex marker: In 2012 the Argentine Congress passed the Ley de Género (Gender Law),[80] 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]

Main article: Intersex rights in Chile
  • 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.[27][28]
  • 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.[81][53]
  • Anti-discrimination legislation: has been announced.[82][83]

Colombia[edit]

Main article: Intersex rights in Colombia
  • 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.[88]

United States[edit]

Main article: Intersex rights in the United States
  • 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".[85]
  • 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.[90] 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.[91] 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.[92]
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."[86] 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.[93][87]

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[94] No Exemptions regarding sport and female genital mutilation[94] Yes Policies vary depending on jurisdiction[95] Yes Opt in at federal level, State/Territory policies vary[95][96]
India India No No Yes[97] Emblem-question.svg
Nepal Nepal No No No[98] No[98]
New Zealand New Zealand No No No Exemptions regarding female genital mutilation[13] Yes Yes Opt in, and at birth if not possible to assign sex[99]
Thailand Thailand No No Warning Requires surgery[13]
Vietnam Vietnam No No Warning Requires surgery[13]

Australia[edit]

Main article: Intersex rights in Australia
  • Prohibition of harmful practices: In October 2013, the Australian Senate published a report entitled Involuntary or coerced sterilisation of intersex people in Australia.[7][100][101][102][103] 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:[34][104]

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.[34]

The Act facilitates exemptions in competitive sport but does not support exemptions on religious grounds.[105][106]
  • Access to same rights as other men/women: Australia's anti-discrimination protections facilitate exemptions in competitive sport.[105][107]
Australian laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.[108]
  • 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.[40][69]
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.[96] Alex MacFarlane received the first Australian passport with an 'X' sex descriptor, reported in January 2003.[72][109][110]
Birth certificates are a State and Territory issue in Australia. Organisation Intersex International Australia states that identification changes are managed as an administrative correction.[111] Alex MacFarlane is believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, reported in January 2003.[109]

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[112] and later attempted suicide.[113][114] 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.[115] 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.[116] 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".[117]
  • 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.[97] Actions in 2015 by gender rights organization Srishti Madurai seek to include intersex people in legislation on gender recognition for transgender people.[118]

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".[119]

New Zealand[edit]

Main article: Intersex rights in New Zealand
  • 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".[120] 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.[121]
  • 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.[122] New Zealand laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.[108]
  • Third sex classifications: New Zealand passports are available with an 'X' sex descriptor.[73] These were originally introduced for people transitioning gender.[123] 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."[124]

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.[13]

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".[13]


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[125]
Denmark Denmark No No Yes Self-determination[126] No
Finland Finland No Yes[127] Emblem-question.svg Emblem-question.svg No
Germany Germany No Warning Two successful legal cases[128][129][130] No Emblem-question.svg Emblem-question.svg Warning Compulsory for some infants, otherwise not available[131][132]
Greece Greece No Yes[37]
Republic of Ireland Ireland No No Yes Self-determination[126] No
Jersey Jersey No Yes[133]
Malta Malta Yes Legislated[24] Yes[24] Yes Yes Yes Self-determination[126] Yes[134]
United Kingdom United Kingdom No No No Requires diagnosis of gender dysphoria[135] No

Bosnia and Herzegovina[edit]

Since August 1, 2016 Bosnia-Herzegovina anti-discrimination laws explicetly protect intersex people, that is listed as "sex characteristics".[125][36]

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.[136][127]

Germany[edit]

Main article: Intersex rights in Germany
  • Reparations:Two legal cases seeking reparations for unwanted, harmful medical interventions have succeeded, those of Christiane Völling and Michaela Raab.[128][129][130] 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,[137] requiring this where a child may not be assigned male or female.[138] 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."[137] The move is controversial with many intersex advocates in Germany and elsewhere suggesting that it might encourage surgical interventions.[71][137][139] 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.[10]

Greece[edit]

Since 24 December 2015, Greece prohibits discrimination and hate crimes based on "sex characteristics".[37][38]

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.[140][141]

Jersey[edit]

Main article: Intersex rights in the United Kingdom
  • 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[133]

Malta[edit]

Main article: Intersex rights in Malta
  • 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.[24]

"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.[24]

The Act was widely welcomed by civil society organizations.[21][12][25][26][142]
  • 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.[24][21][11] Malta also permits an "X" option on identification documents.[134]

United Kingdom[edit]

Main article: Intersex rights in the United Kingdom
  • 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.[135]


Human rights investigations and statements[edit]

San Francisco Human Rights Investigation, 2005[edit]

The 2005 Human Rights Investigation into the Medical "Normalization" of Intersex People, by the Human Rights Commission of the City and County of San Francisco is thought "likely to be the first human rights report into the treatment of intersex people, certainly in the English language."[143][144][145]

  1. Infant genital surgeries and sex hormone treatments that are not performed for the treatment of physical illness, such as improving urinary tract or metabolic functioning, and have not been shown to alleviate pain or illness (hereafter referred to as "normalizing" interventions) are unnecessary and are not medical or social emergencies.
  2. "Normalizing" interventions done without the patient's informed consent are inherent human rights abuses.
  3. "Normalizing" interventions deprive intersex people of the opportunity to express their own identity and to experience their own intact physiology.
  4. It is unethical to disregard a child's intrinsic human rights to privacy, dignity, autonomy, and physical integrity by altering genitals through irreversible surgeries for purely psychosocial and aesthetic rationales. It is wrong to deprive a person of the right to determine their sexual experience and identity. ...
  5. It is ethically wrong to treat people differently or unfairly because they are perceived by others to be "monsters" or "oddities."
    — Human Rights Commission of the City and County of San Francisco[144]

Yogyakarta Principles, 2006[edit]

Main article: Yogyakarta Principles

The 2006 Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a set of principles relating to sexual orientation and gender identity, intended to apply international human rights law standards to address the abuse of the human rights of lesbian, gay, bisexual and transgender (LGBT) people. It briefly mentions intersex, influenced by the Declaration of Montreal which first demanded prohibition of unnecessary post-birth surgery to reinforce gender assignment until a child is old enough to understand and give informed consent. The Yogyakarta Principles detail this in the context of existing UN declarations and conventions under Principle 18, which called on states to:

B. Take all necessary legislative, administrative and other measures to ensure that no child's body is irreversibly altered by medical procedures in an attempt to impose a gender identity without the full, free and informed consent of the child in accordance with the age and maturity of the child and guided by the principle that in all actions concerning children, the best interests of the child shall be a primary consideration;

C. Establish child protection mechanisms whereby no child is at risk of, or subjected to, medical abuse;
— The Yogyakarta Principles

Report of Swiss National Advisory Council on Biomedical Ethics, 2012[edit]

In late 2012, the Swiss National Advisory Commission on Biomedical Ethics reported on intersex. The Commission report makes a strong case against medical intervention for "psychosocial" reasons:[8]

Especially delicate are those cases where a psychosocial indication is used to justify the medical urgency of surgical sex assignment in children who lack capacity. Here, there is a particularly great risk of insufficient respect being accorded to the child's (future) self-determination and its physical integrity...

Decisions on sex assignment interventions are to be guided by the questions of what genitalia a child actually requires at a given age (apart from a functional urinary system) and how these interventions will affect the physical and mental health of the child and the future adult. Treatment needs to be carefully justified, especially since – in functional, aesthetic and psychological respects – surgically altered genitalia ... are not comparable to natural male or female genitalia. Decisions are to be guided, above all, by the child's welfare...

The harmful consequences may include, for example, loss of fertility and sexual sensitivity, chronic pain, or pain associated with dilation (bougienage) of a surgically created vagina, with traumatizing effects for the child. If such interventions are performed solely with a view to integration of the child into its family and social environment, then they run counter to the child's welfare. In addition, there is no guarantee that the intended purpose (integration) will be achieved.
— Swiss National Advisory Commission on Biomedical Ethics[8]

The report is notable for making a clear apology for damage done to intersex people in the past, and up until the present. It recommends deferring all "non-trivial" surgeries which have "irreversible consequences". The report also recommended criminal sanction for non-medically necessary genital surgeries.

Report of UN Special Rapporteur on Torture, 2013[edit]

On 1 February 2013, Juan E. Méndez, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, issued a statement condemning non-consensual surgical intervention on intersex people. His report states:[5][146]

76. … There is an abundance of accounts and testimonies of persons being denied medical treatment, subjected to verbal abuse and public humiliation, psychiatric evaluation, a variety of forced procedures such as sterilization, State-sponsored forcible … hormone therapy and genital-normalizing surgeries under the guise of so called "reparative therapies". These procedures are rarely medically necessary, can cause scarring, loss of sexual sensation, pain, incontinence and lifelong depression and have also been criticized as being unscientific, potentially harmful and contributing to stigma (A/HRC/14/20, para. 23).

77. Children who are born with atypical sex characteristics are often subject to irreversible sex assignment, involuntary sterilization, involuntary genital normalizing surgery, performed without their informed consent, or that of their parents, "in an attempt to fix their sex", leaving them with permanent, irreversible infertility and causing severe mental suffering…

79. The mandate has noted that "members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment because they fail to conform to socially constructed gender expectations.
— UN Special Rapporteur on Torture[5]

Resolution by the Council of Europe, 2013[edit]

In October 2013, the Council of Europe adopted a resolution 1952, 'Children's right to physical integrity'. It calls on member states to[147]

undertake further research to increase knowledge about the specific situation of intersex people, ensure that no-one is subjected to unnecessary medical or surgical treatment that is cosmetic rather than vital for health during infancy or childhood, guarantee bodily integrity, autonomy and self-determination to persons concerned, and provide families with intersex children with adequate counselling and support

— Resolution 1952/2013, Council of Europe[147]

Senate Committee inquiry, Australia, 2013[edit]

In October 2013, the Australian Senate published a report entitled Involuntary or coerced sterilisation of intersex people in Australia.[7][100][148][149][150] 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]

They commented: "...normalisation surgery is more than physical reconstruction. The surgery is intended to deconstruct an intersex physiology and, in turn, construct an identity that conforms with stereotypical male and female gender categories" and: "Enormous effort has gone into assigning and 'normalising' sex: none has gone into asking whether this is necessary or beneficial. Given the extremely complex and risky medical treatments that are sometimes involved, this appears extremely unfortunate."[7]

The report makes 15 recommendations, including ending cosmetic genital surgeries on infants and children and providing for legal oversight of individual cases.[7]

Organisation Intersex International Australia welcomed the report, saying that,

At a first view, many of the headline conclusions and recommendations are positive – accepting our recommendations on minimising genital surgery, concern over the lack of adequate data, insufficient psychosocial support, and concern that decision making on cancer risk is insufficiently disentangled from wider concerns about a person's intersex status itself; we also broadly welcome the recommendations relating to the prenatal use of Dexamethasone ... The distinction between therapeutic and non-therapeutic treatment has failed many intersex people in Australia. We welcome the recommendation for the proper oversight of individual cases.

— Organisation Intersex International Australia[100]

Malta declaration, 2013[edit]

Main article: Malta declaration (International Intersex Forum)

The Malta declaration is the statement of the Third International Intersex Forum, which took place in Valetta, Malta, in 2013. The declaration was made by 34 people representing 30 organisations from multiple regions of the world.[151][152]

The declaration affirmed the existence of intersex people and demanded an end to "discrimination against intersex people and to ensure the right of bodily integrity, physical autonomy and self-determination". For the first time, participants made a statement on birth registrations, in addition to other human rights issues.[153][154][155]

World Health Organization and UN interagency report, 2014[edit]

In May 2014, the World Health Organization issued a joint statement on Eliminating forced, coercive and otherwise involuntary sterilization, An interagency statement with the OHCHR, UN Women, UNAIDS, UNDP, UNFPA and UNICEF. The report references the involuntary surgical "sex-normalising or other procedures" on "intersex persons". It questions the medical necessity of such treatments, patients' ability to consent, and a weak evidence base.[156] The report recommends a range of guiding principles for medical treatment, including ensuring patient autonomy in decision-making, ensuring non-discrimination, accountability and access to remedies.[6]

Council of Europe Issue Paper, 2015[edit]

In a wide-ranging first detailed analysis on intersex health and human rights issues by an international institution, the Council of Europe published an Issue Paper entitled Human rights and intersex people in May 2015. The document highlighted an historic lack of attention to intersex human rights, stating that current social and biomedical understandings of sex and gender make intersex people "especially vulnerable" to human rights breaches. The report cited previous reports from San Franscisco,[144] the Swiss National Advisory Commission on Biomedical Ethics[8] and the Australian Senate.[7] The Commissioner for Human Rights made eight recommendations. For this first time, these recognized a right to not undergo sex assignment treatment.[10]

UN Office of the High Commissioner for Human Rights report, 2015[edit]

In 2015, the UN Office of the High Commissioner for Human Rights (OHCHR) described human rights violations against intersex people:

53. Many intersex children, born with atypical sex characteristics, are subjected to medically unnecessary surgery and treatment in an attempt to force their physical appearance to align with binary sex stereotypes. Such procedures are typically irreversible and can cause severe, long-term physical and psychological suffering.[157]

The OHCHR acknowledged Australia and Malta as "the first countries to expressly prohibit discrimination against intersex persons," and Malta as "the first State to prohibit sex-assignment surgery or treatment on intersex minors without their informed consent." It called on UN member states to protect intersex persons from discrimination, and address violence by:

  • "Banning “conversion” therapy, involuntary treatment, forced sterilization and forced genital and anal examinations;"
  • "Prohibiting medically unnecessary procedures on intersex children"[157]

WHO report, "Sexual health, human rights and the law", 2015[edit]

In June 2015, the World Health Organization published a major report on sexual and reproductive rights and the law. Section 3.4.9, on intersex people, identifies discrimination and stigma within health systems (citations omitted):[63]

Intersex people may face discrimination and stigma in the health system, in many cases being subjected to lack of quality of care, institutional violence and forced interventions throughout their lifetime.

A major concern for intersex people is that so-called sex normalizing procedures are often undertaken during their infancy and childhood, to alter their bodies, particularly the sexual organs, to make them conform to gendered physical norms, including through repeated surgeries, hormonal interventions and other measures. As a result, such children may be subjected to medically unnecessary, often irreversible, interventions that may have lifelong consequences for their physical and mental health, including irreversible termination of all or some of their reproductive and sexual capacity.[63]

The report stated that intersex persons are entitled "to access health services on the same basis as others, free from coercion, discrimination and violence", with the ability offer free and informed consent. The report also called for the education and training of medical and psychological professionals on "physical, biological and sexual diversity and integrity".[63]

Asia Pacific Forum of NHRIs manual, 2016[edit]

In 2016, the Asia Pacific Forum of National Human Rights Institutions (AFP) manual on Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics.[13] The document provides an analysis of human rights issues, including the rights to physical integrity, non-discrimination, effective remedies and redress, and recognition before the law. The report states:

Intersex people often experience human rights violations because their bodies are different. These include so-called ‘sex-normalising’ surgeries or hormone treatment on infants and children, that are medically unnecessary and typically performed when a child is too young to be involved in the decision-making process. These practices violate the right to physical integrity and have been described by human rights bodies as forms of torture or ill-treatment and as harmful practices. Fear and discrimination can never justify human rights abuses, including forced medical treatment. States have a duty to combat harmful stereotypes and discrimination against intersex people.[13]

UN and regional experts statement, 2016[edit]

For Intersex Awareness Day, October 26, UN experts including the Committee against Torture, the Committee on the Rights of the Child and the Committee on the Rights of Persons with Disabilities, along with the Council of Europe Commissioner for Human Rights, the Inter-American Commission on Human Rights and United Nations Special Rapporteurs called for an urgent end to human rights violations against intersex persons, including in medical settings. The experts also called for the investigation of human rights abuses, access to reparations, and the implementation of anti-discrimination measures.[158][159]

States must, as a matter of urgency, prohibit medically unnecessary surgery and procedures on intersex children. They must uphold the autonomy of intersex adults and children and their rights to health, to physical and mental integrity, to live free from violence and harmful practices and to be free from torture and ill-treatment. Intersex children and their parents should be provided with support and counselling, including from peers.[158]

The United Nations Office of the High Commissioner for Human Rights also launched a website, United Nations for Intersex Awareness.[160]

See also[edit]

Notes[edit]

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