Intersex persons in Europe face numerous practical obstacles when seeking legal gender recognition. The lack of a neutral gender marker in the laws of most European countries leads to the effect that decisions on the legal registration of intersex children as either male or female are made under the pressure of the binary legal model. This model breaches the right to self-determination of intersex individuals. The possibility to register a child as either “male” or “female” creates an environment in which variations are not welcome. This notion implies the justification of “normalizing” therapies which will overcome physical ambiguity and reinforce the legal unambiguity.  Research has proved that people whose gender marker in their legal documents matches with their self-identification with a particular gender are less likely to experience mental health issues. This is practically not possible for those intersex people who do not self-identify as either men or women. The gender binary system amplifies the trauma and challenges, which intersex people face in their daily lives. Their very existence is compromised. (Based on Written comments submitted jointly by OII Europe, ILGA-Europe, and C.I.A. on Y against France (Application no. 76888/17) in the ECHR)

 

 

Protecting Intersex people in Europe: A toolkit for law and policymakers

“Bodily autonomy – making one’s own informed decisions about one’s body and what happens to it – is a fundamental human right, repeatedly enshrined throughout myriad human rights instruments globally. Each of us holds this right individually. However, it is not equally protected nor enforced for everyone.

Across Europe, as well as much of the world, the right to bodily autonomy is regularly and greviously violated on the basis of sex characteristics. These violations are increasingly documented, and today, people with variations of sex characteristics are internationally recognised as victims of harmful medical practice and other human rights violations.”

 

 

Human rights violations faced by intersex people

“Normalizing treatment” of intersex individuals

Surgeries and medical interventions on intersex infants and children are still common. According to a 2015 survey published by the EU Fundamental Rights Agency, so-called sex-“normalizing” surgeries on intersex infants and children are carried out in at least 21 of the EU Member States. As of the end of 2020, only Malta and, with certain nuances, Portugal explicitly prohibit these harmful medical interventions. In 2017, the Parlamentary Assemby of the Council of Europe confirmed in its resolution “Promoting the human rights of and eliminating discrimination against intersex people that these surgeries are serious breaches of physical integrity” and highlighted that they are performed “despite the fact that there is no evidence to support the long-term success of such treatments, no immediate danger to health and no genuine therapeutic purpose for the treatment”. (Parliamentary Assembly of the Council of Europe (PACE), Resolution 2191 (2017), Promoting the human rights of and eliminating discrimination against intersex people, §2)

In 2019, the European Parliament emphasized in its resolution The rights of intersex people that it “strongly condemns sex-normalizing treatments and surgeries” and that it encourages Member States to adopt legislation prohibiting such surgeries as soon as possible (European Parliament (EP), Resolution of 14 February 2019 on the rights of intersex people (2018/2878(RSP)), §2.)

Normalizing therapies are performed on the ground that intersex conditions are seen as a “disorder” and intersex people are strongly pathologized.

Why are “Normalizing therapies a problem?
  • They are performed on healthy bodies.
  • They are irreversible, deferrable, and non-emergency medical interventions performed without the consent of the individual (usually a child).
  • If a fetus is diagnosed as intersex, this may entail abortion in some countries.

A parent of an intersex child says: It is common, for expectant parents to be pressured or strongly guided by experts with intense pathologizing views (mostly obstetricians) to terminate - otherwise healthy and desirable- intersex babies.

  • The psychological distress caused by the negative outcomes of “corrective” surgery can result in self-harming and suicidal behaviour.
  • To this day, medical and surgical treatment of intersex infants and minors rests on the belief that such treatment is necessary and desirable. Thus, although parents of intersex children are asked to provide their proxy consent to the treatment, they are often ill-informed and impressionable, and are not given adequate time or options necessary to provide fully informed consent.
  • “Normalizing” therapies usually aim to reinforce the sex assigned at birth. A substantial number of intersex people reject the sex they were registered with at birth. A 2012 clinical review paper found that between 8.5% and 20% of intersex people, regardless of whether their body was subjected to medical interventions, developed a gender identity that did not match the sex or gender that was assigned to them at birth. (P.S. Furtado et al. (2012): Gender dysphoria associated with disorders of sex development, in: Nat. Rev. Urol. 9 (11): 620-627.)
  • Variations in sex characteristics of intersex people are currently codified in medical classifications as pathologies or disorders, usually referred to as ‘disorders of sex development’. This raises serious questions with regard to the medical profession’s ability to help intersex people attain the highest possible level of health that they have a right to.

To this day, medical and surgical treatment of intersex infants and minors rests on the belief that such treatment is necessary and desirable. Thus, although parents of intersex children are asked to provide their proxy consent to the treatment, they are often ill-informed and impressionable, and are not given adequate time or options necessary to provide fully informed consent.

“Normalizing” therapies usually aim to reinforce the sex assigned at birth. A substantial number of intersex people reject the sex they were registered with at birth. A 2012 clinical review paper found that between 8.5% and 20% of intersex people, regardless of whether their body was subjected to medical interventions, developed a gender identity that did not match the sex or gender that was assigned to them at birth.

Variations in sex characteristics of intersex people are currently codified in medical classifications as pathologies or disorders, usually referred to as ‘disorders of sex development’. This raises serious questions with regard to the medical profession’s ability to help intersex people attain the highest possible level of health that they have a right to.

Legislating intersex equality: building the resilience of intersex people through law

The last 20 years has seen a global increase in the legal recognition of intersex. Whilst a number of qualitative studies have examined the experiences of intersex persons in relation to medicine, this paper offers findings from the first study to examine the practical impact that law has had on the lives and experiences of intersex embodied people.

Human rights and Intersex

“Binary classifications of sex and gender are omnipresent in our society and inform the way we understand and organise the world around us. The classification of humankind into two categories – “F” (female) and “M” (male) – and the entrenchment of those categories in identification documents, expose people who do not fit neatly into those two categories to human rights breaches. Among them, intersex persons are especially vulnerable.”

Stereotypes hinging on the supposed dichotomy of gender as well as the medical norms of so-called female and male bodies have allowed for the establishment of routine medical and surgical interventions on intersex people, even when such interventions are cosmetic rather than medically necessary, or when those concerned have not been adequately consulted or informed prior to these procedures. Secrecy and shame around intersex bodies have permitted the perpetuation of these practices for decades, while the human rights issues at stake have remained for the most part unaddressed.”

Background Note on Human Rights Violations against Intersex People

“Intersex is an umbrella term used to describe a wide range of innate bodily variations in sex characteristics. Intersex people are born with sex characteristics that do not fit typical definitions for male or female bodies, including sexual anatomy, reproductive organs, hormonal patterns, and/or chromosome patterns.

In recent years, awareness of intersex people, and recognition of the specific human rights abuses that they face, has grown, thanks to the work of intersex human rights defenders. These include risks of forced and coercive medical interventions, harmful practices and other forms of stigmatisation due to their physical traits. To date, only a handful of countries have implemented measures to prevent and address such abuses, and the effectiveness of existing measures remains to be fully documented.”

First, Do No Harm: ensuring the rights of children born intersex

‘Is it a boy or a girl?’ It is often the first question people ask parents about their baby. It’s a question based on the assumption that the world is divided into two groups of people, male and female, and that everyone’s biological and genetic characteristics fit neatly into one of two categories.

Joint statement by 33+ countries at the UN Human Rights Council

2020 Austria made a statement on behalf of countries from every region of the world, calling on the Human Rights Council to investigate and address human rights violations and abuses against intersex persons.

Survey shows: intersex people are highly vulnerable during the Covid-19 pandemic

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