Discrimination against intersex people

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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 typical binary notions of male or female bodies";[1] "Because their bodies are seen as different, intersex children and adults are often stigmatized and subjected to multiple human rights violations".[1]

Discriminatory treatment includes infanticide, abandonment, mutilation and neglect, as well as broader concerns regarding right to life.[2][3] Intersex people face discrimination in education, employment, healthcare, sport, with an impact on mental and physical health, and on poverty levels, including as a result of harmful medical practices.[4]

The United Nations, African Commission on Human and Peoples' Rights, Council of Europe, Inter-American Commission on Human Rights, and other human rights institutions, have called for countries to ban discrimination and combat stigma.[5] Few countries so far protect intersex people from discrimination, or provide access to reparations for harmful practices.[2][6]

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

A 2013 first international pilot study. Human Rights between the Sexes, by Dan Christian Ghattas, 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."[7][8]

The United Nations states that intersex people suffer stigma on the basis of physical characteristics, "including violations of their rights to health and physical integrity, to be free from torture and ill-treatment, and to equality and non- discrimination."[1] The UN has called for governments to end discrimination against intersex people:

Ban discrimination on the basis of sex characteristics, intersex traits or status, including in education, health care, employment, sports and access to public services, and consult intersex people and organizations when developing legislation and policies that impact their rights.[9]

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'.[10] Australia was the first country to add an independent attribute, of 'intersex status'.[11] 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.[12] Since then, Bosnia-Herzegovina has prohibited discrimination based on "sex characteristics",[13][14] and Greece has prohibited discrimination and hate crimes based on "sex characteristics" since 24 December 2015.[15][16]

Right to life[edit]

Intersex people face genetic de-selection via pregnancy terminations and preimplantation genetic diagnosis, as well as abandonment, neglect, infanticide and murder due to their sex characteristics. 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.[2]

In 2015, Chinese news reported a case of abandonment of an infant, thought likely due to its sex characteristics.[17] Hong Kong activist Small Luk reports that this is not uncommon, in part due to the historic imposition of a policy of one child per family.[18] Cases of infanticide, attempted infanticide, and neglect have been reported in China,[19] Uganda[3][20] and Pakistan.[21]

Kenyan reports suggest that the birth of an intersex infant may be viewed as a curse.[22] In 2015, it was reported that an intersex Kenyan adolescent, Muhadh Ishmael, was mutilated and later died. Ishmael had previously been described as a curse on his family.[23]

Healthcare[edit]

Further information: Intersex medical interventions

In places with accessible healthcare systems, intersex people face harmful practices including involuntary or coercive treatment, and in places without such systems, infanticide, abandonment and mutilation may occur.[24]

Harmful practices[edit]

Intersex people face harmful practices including involuntary or coerced medical treatment from infancy.[25][26] Where these occur without personal informed consent, these are "violations of their rights to health and physical integrity, to be free from torture and ill-treatment, and to equality and non-discrimination."[1][5]

A 2016 Australian study of 272 people born with atypical sex characteristics found that 60% had received medical treatment on the basis of their sex characteristics, half receiving such treatments aged under 18 years, "most commonly genital surgeries (many of which occurred in infancy) and hormone treatments", and the "majority experienced at least one negative impact".[27] Overall, while some parents and physicians had attempted to empower participants, the study found "strong evidence suggesting a pattern of institutionalised shaming and coercive treatment" and poor (or no) information provision.[4] 16% of study participants were not provided with information on options of having no treatment, and some were provided with misinformation about the nature of their treatment, and information about peer support was also lacking. OII Europe reports:

A German study conducted by a medical team between 2005 and 2007 covered the experiences of 439 intersex individuals of all ages, from Germany, Austria and Switzerland. 81% had been subjected to one or multiple surgeries due to their DSD diagnosis. Almost 50% of the participating adults reported psychological problems and a variety of problems related to their physical well-being and their sex life. Two-thirds made a connection between those problems and the medical and surgical treatment they had been subjected to. Participating children reported significant disturbances, especially within their family life and in relation with their physical well-being.[28]

Rationales for medical intervention frequently focus on parental distress, or problematize future gender identity and sexuality, and subjective judgements are made about the acceptability of risk of future gender dysphoria.[29][30] Medical professionals have traditionally considered the worst outcomes after genital reconstruction in infancy to occur when the person develops a gender identity discordant with the sex assigned as an infant. Human rights institutions question such approaches as being "informed by redundant social constructs around gender and biology".[31]

Decision-making on any cancer and other physical risks may be intertwined with "normalizing" rationales. In a major Parliamentary report in Australia, published in October 2013, the Senate Community Affairs References committee was "disturbed" by the possible implications of current practices in the treatment of cancer risk. The committee stated: "clinical intervention pathways stated to be based on probabilities of cancer risk may be encapsulating treatment decisions based on other factors, such as the desire to conduct normalising surgery... Treating cancer may be regarded as unambiguously therapeutic treatment, while normalising surgery may not. Thus basing a decision on cancer risk might avoid the need for court oversight in a way that a decision based on other factors might not. The committee is disturbed by the possible implications of this..."[26]

Despite the naming of clinician statements as "consensus" statements, there remains no clinical consensus about the conduct of surgical interventions,[26] nor their evidence base, surgical timing, necessity, type of surgical intervention, and degree of difference warranting intervention.[30][32][33] Surgery may adversely impact physical sensation and capacity for intimacy,[34][33] however, research has suggested that parents are willing to consent to appearance-altering surgeries even at the cost of later adult sexual sensation.[35] Other research shows that parents may make different choices with non-medicalized information.[36] Child rights experts suggest that parents have no right to consent to such treatments.[37]

Clinical decision-making is frequently portrayed as a choice between early or later surgical interventions, while human rights advocates and some clinicians portray concerns as matters of consent and autonomy.[33][38]

Medical photography and display[edit]

Photographs of intersex children's genitalia are circulated in medical communities for documentary purposes, and individuals with intersex traits may be subjected to repeated genital examinations and display to medical teams. Sharon Preves described this as a form of humiliation and stigmatization, leading to an "inability to deflect negative associations of self" where "genitalia must be revealed in order to allow for stigmatization".[39][40][41] According to Creighton et al, the "experience of being photographed has exemplified for many people with intersex conditions the powerlessness and humiliation felt during medical investigations and interventions".[41]

Access to medical services[edit]

Adults with intersex variations report poor mental health due to experiences of medicalization,[42] with many individuals avoiding care as a result. Many Australian study participants stated a need to educate their physicians. Similar reports are made elsewhere: reports on the situation Mexico suggests that adults may not receive adequate care, including lack of understanding about intersex bodies and examinations that cause physical harm.[43][44]

In countries without accessible healthcare systems, infanticide, abandonment and mutilation may occur.[24] Access to necessary medical services, for example due to cancer or urinary issues, is also limited.[20][44][45]

Suicide and self-harm[edit]

The impact of discrimination and stigma can also be seen in high rates of suicidal tendencies and self harm. Multiple anecdotal reports, including from Hong Kong and Kenya point to high levels of suicidality amongst intersex people.[18][22] The Australian sociological study of 272 people born with atypical sex characteristics found that 60% had thought about suicide, and 42% thought about self-harm, "on the basis of issues related to having an intersex variation ... 19% had attempted suicide"; causes identified included stigma, discrimination, family rejection and school bullying.[46]

A 2013 German clinical study found high rates of distress, with "prevalence rates of self-harming behavior and suicidal tendencies ... comparable to traumatized women with a history of physical or sexual abuse."[47] Similar results have been reported in Australia[47] and Denmark.[42]

Education[edit]

An Australian sociological 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 on the basis of physical characteristics, and other factors.[46] A Kenyan news report suggests high rates of early school leaving, with the organisation Gama Africa reporting that 60% of 132 known intersex people had dropped out of school "because of the harassment and treatment they received from their peers and their teachers".[22]

The Australian study found that schools lacked inclusive services such as relevant puberty and sex education curricula and counselling, for example, not representing a full range of human bodily diversity. Only a quarter of respondents felt positive about their schooling experiences, schooling coincided with disclosure of an intersex condition, associated with well-being risks, and early school leaving peaked "during the years most associated with puberty and hormone therapy interventions".[46] Cognitive differences may also be associated with some traits such as sex chromosome variations.[48] Nevertheless, in addition to very high rates of early school leaving, the Australian study also found that a higher proportion of study participants completed undergraduate or postgraduate degrees compared to the general Australian population.[46]

Poverty and employment discrimination[edit]

The impact of discrimination and stigma can be seen in high rates of poverty. 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.[4] 6% of the 272 survey participants reported being homeless or couch surfing.[46]

OII Europe states that "stigma, structural and verbal discrimination, harassment" as well as harmful practices and lack of legal recognition can lead to "inadequate education, broken careers and poverty (including homelessness) due to pathologisation and related trauma, a disturbed family life due to taboo and medicalisation, lack of self-esteem and a high risk of becoming suicidal."[49]

An Employers guide to intersex inclusion published by Pride in Diversity and Organisation Intersex International Australia discloses cases of discrimination in employment.[50]

Legal[edit]

Main article: Legal recognition of intersex people
Not to be confused with Discrimination towards non-binary gender persons.

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.[51][52][53] 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,[29] 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.[4][27]

Depending on the jurisdiction, access to any birth certificate may be an issue,[54] including a birth certificate with a sex marker.[55] 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[6]

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,[2] or it may only be available accompanied by surgical requirements.[6]

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.[56][57] 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.[58][59][60] 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."[2] The Issue Paper argues that "further reflection on non-binary legal identification is necessary".

Sport[edit]

Main article: Sex verification in sports

Women who have, or are perceived to have intersex traits are subject to stigmatization, humiliation and trial by media.[61][62][63] Currently suspended IAAF regulations on hyperandrogenism "mandated that national Olympic committees "actively investigate any perceived deviation in sex characteristics"" in women athletes.[62]

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.[62][64] 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.[62][64][65][66] There is no evidence that innate hyperandrogenism in elite women athletes confers an advantage in sport.[67][68] While Australia protects intersex persons from discrimination, the Act contains an exemption in sport.

LGBT[edit]

Main article: Intersex and LGBT

Intersex people may face discrimination within LGBT settings and 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". Emi Koyama has described how inclusion of intersex in LGBTI can fail to address intersex-specific human rights issues, including creating false impressions "that intersex people's rights are protected" by laws protecting LGBT people, and failing to acknowledge that many intersex people are not LGBT.[69] Julius Kaggwa of SIPD Uganda has written that, while the gay community "offers us a place of relative safety, it is also oblivious to our specific needs".[70] Mauro Cabral has written that transgender people and organizations "need to stop approaching intersex issues as if they were trans issues" including use of intersex as a means of explaining being transgender; "we can collaborate a lot with the intersex movement by making it clear how wrong that approach is".[71]

Organisation Intersex International Australia states that some intersex individuals are same sex attracted, and some are heterosexual, but "LGBTI activism has fought for the rights of people who fall outside of expected binary sex and gender norms"[72][73] but, in June 2016, the same organization 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.[74] 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.[75] 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.[76]

Protections and 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[54]
South Africa South Africa No Yes[10] 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.[54] In Kenya a birth certificate is necessary for attending school, getting a national identity document, and voting.[54]

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.[10] 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[81][82] November 2012, case before the Supreme Court of Chile.[83][84] No (Pending)[85][82][86]
Colombia Colombia No No, but restricted in children aged over 5. No Yes Self-determination
United States United States No Partial, in healthcare[87] No Laws on female genital mutilation not enforced[88] Yes Opt in, known for California, New York City, Ohio, Oregon only[89][90]

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.[81][82]
  • 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.[83][84]
  • Anti-discrimination legislation: has been announced.[85][86]

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.[91]

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".[88]
  • 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.[94] 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.[95] 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.[96]
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."[89] 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.[97][90]

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[98] No Exemptions regarding sport and female genital mutilation[98] Yes Policies vary depending on jurisdiction[99] Yes Opt in at federal level, State/Territory policies vary[99][100]
India India No No Yes[101] Emblem-question.svg
Nepal Nepal No No No[102] No[102]
New Zealand New Zealand No No No Exemptions regarding female genital mutilation[6] Yes Yes Opt in, and at birth if not possible to assign sex[103]
Thailand Thailand No No Warning Requires surgery[6]
Vietnam Vietnam No No Warning Requires surgery[6]

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.[26][104][105][106][107] 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".[26] 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:[11][108]

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.[11]

The Act facilitates exemptions in competitive sport but does not support exemptions on religious grounds.[109][110]
  • Access to same rights as other men/women: Australia's anti-discrimination protections facilitate exemptions in competitive sport.[109][111]
Australian laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.[112]
  • 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.[4][113]
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.[100] Alex MacFarlane received the first Australian passport with an 'X' sex descriptor, reported in January 2003.[56][114][115]
Birth certificates are a State and Territory issue in Australia. Organisation Intersex International Australia states that identification changes are managed as an administrative correction.[116] Alex MacFarlane is believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, reported in January 2003.[114]

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[117] and later attempted suicide.[118][119] 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.[120] 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.[121] 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".[122]
  • 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.[101] Actions in 2015 by gender rights organization Srishti Madurai seek to include intersex people in legislation on gender recognition for transgender people.[123]

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".[124]

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".[125] 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.[126]
  • 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.[127] New Zealand laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.[112]
  • Third sex classifications: New Zealand passports are available with an 'X' sex descriptor.[57] These were originally introduced for people transitioning gender.[128] 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."[129]

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.[6]

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".[6]


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[13]
Denmark Denmark No No Yes Self-determination[130] No
Finland Finland No Yes[28] Emblem-question.svg Emblem-question.svg No
Germany Germany No Warning Two successful legal cases[131][132][133] No Emblem-question.svg Emblem-question.svg Warning Compulsory for some infants, otherwise not available[134][135]
Greece Greece No Yes[15]
Republic of Ireland Ireland No No Yes Self-determination[130] No
Jersey Jersey No Yes[136]
Malta Malta Yes Legislated[137] Yes[137] Yes Yes Yes Self-determination[130] Yes[138]
United Kingdom United Kingdom No No No Requires diagnosis of gender dysphoria[139] No

Bosnia and Herzegovina[edit]

Since August 1, 2016 Bosnia-Herzegovina anti-discrimination laws explicetly protect intersex people, that is listed as "sex characteristics".[13][14]

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.[140][28]

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.[131][132][133] 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,[141] requiring this where a child may not be assigned male or female.[142] 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."[141] The move is controversial with many intersex advocates in Germany and elsewhere suggesting that it might encourage surgical interventions.[55][141][143] 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.[2]

Greece[edit]

Since 24 December 2015, Greece prohibits discrimination and hate crimes based on "sex characteristics".[15][16]

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.[144][145]

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[136]

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.[137]

"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.[137]

The Act was widely welcomed by civil society organizations.[12][146][147][148][149]
  • 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.[137][12][150] Malta also permits an "X" option on identification documents.[138]

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.[139]


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[98] No Exemptions regarding sport and female genital mutilation[98] Yes Policies vary depending on jurisdiction[99] Yes Opt in at federal level, State/Territory policies vary[99][100]
India India No No Yes[101] Emblem-question.svg
Nepal Nepal No No No[102] No[102]
New Zealand New Zealand No No No Exemptions regarding female genital mutilation[6] Yes Yes Opt in, and at birth if not possible to assign sex[151]
Thailand Thailand No No Warning Requires surgery[6]
Vietnam Vietnam No No Warning Requires surgery[6]

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.[26][104][152][153][154] 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".[26] 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:[11][108]

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.[11]

The Act facilitates exemptions in competitive sport but does not support exemptions on religious grounds.[109][155]
  • Access to same rights as other men/women: Australia's anti-discrimination protections facilitate exemptions in competitive sport.[109][156]
Australian laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.[112]
  • 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.[4][113]
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.[100] Alex MacFarlane received the first Australian passport with an 'X' sex descriptor, reported in January 2003.[56][114][115]
Birth certificates are a State and Territory issue in Australia. Organisation Intersex International Australia states that identification changes are managed as an administrative correction.[157] Alex MacFarlane is believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, reported in January 2003.[114]

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[158] and later attempted suicide.[159][160] 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.[161] 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.[121] 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".[162]
  • 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.[101] Actions in 2015 by gender rights organization Srishti Madurai seek to include intersex people in legislation on gender recognition for transgender people.[163]

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".[164]

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".[165] 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.[166]
  • 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.[167] New Zealand laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.[112]
  • Third sex classifications: New Zealand passports are available with an 'X' sex descriptor.[57] These were originally introduced for people transitioning gender.[168] 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."[169]

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.[6]

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".[6]


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[13]
Denmark Denmark No No Yes Self-determination[130] No
Finland Finland No Yes[28] Emblem-question.svg Emblem-question.svg No
Germany Germany No Warning Two successful legal cases[131][132][133] No Emblem-question.svg Emblem-question.svg Warning Compulsory for some infants, otherwise not available[170][171]
Greece Greece No Yes[15]
Republic of Ireland Ireland No No Yes Self-determination[130] No
Jersey Jersey No Yes[136]
Malta Malta Yes Legislated[137] Yes[137] Yes Yes Yes Self-determination[130] Yes[138]
United Kingdom United Kingdom No No No Requires diagnosis of gender dysphoria[139] No

Bosnia and Herzegovina[edit]

Since August 1, 2016 Bosnia-Herzegovina anti-discrimination laws explicetly protect intersex people, that is listed as "sex characteristics".[13][14]

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.[172][28]

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.[131][132][133] 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,[141] requiring this where a child may not be assigned male or female.[142] 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."[141] The move is controversial with many intersex advocates in Germany and elsewhere suggesting that it might encourage surgical interventions.[55][141][173] 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.[2]

Greece[edit]

Since 24 December 2015, Greece prohibits discrimination and hate crimes based on "sex characteristics".[15][16]

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.[174][175]

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[136]

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.[137]

"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.[137]

The Act was widely welcomed by civil society organizations.[12][146][147][148][149]
  • 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.[137][12][150] Malta also permits an "X" option on identification documents.[138]

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.[139]


See also[edit]

Notes[edit]

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