Children's Health Rights and Gender Issues

Chapter 15 Children’s Health Rights and Gender Issues

Melinda Jones

1 Introduction*

Children’s health rights are located at the intersection between the fields of law, medicine and human rights. They are intended to guide the delivery of health services in a non-discriminatory manner that protects and promotes the dignity and personal autonomy of the child. These rights are extremely important for minority children, especially those with non-conforming gender characteristics who often have a difficult relationship with health and medical systems. These are children who are characterized by non-typical gender ex- pression or orientation (lesbian, gay and bisexual), those with gender identity issues (transgender) and those born with atypical sex characteristics (intersex), often grouped together as lgbti (lesbian, gay, bisexual, transgender and intersex) children.1 The very existence of these children challenges the cultural and social constructions of binary gender and what it means to be male or female; masculine or feminine. In this regard, lgbti children find themselves as outsiders living at the edge of the community. The provision of appropriate health rights (including the right to have the highest attainable standard of health) can bring these children in from the margins. The international community has repeatedly asserted that all people are entitled to be treated with dignity and respect and that this unques- tionably includes lgbti people. In 2006, a group of international human rights law experts drafted the Yogyakarta Principles on the Application of International Law in Relation to Sexual Orientation and Gender Identity2

* I would like to thank Dafni Samuni, Danielle Jones-Resnik and Morgan Carpenter for their contributions to this chapter. The views expressed are mine alone. Readers should feel free to comment on this chapter or contact me at [email protected]. 1 I include in this group all children who are gender non-conforming or who have non- mainstream gender orientation or identity. Not all of these children identify as lgbti, but I use this terminology as a shorthand to include, inter alia, children who may be gender fluid or asexual, or who identify as neither male nor female and may be thought of as third gender. 2 International Commission of Jurists (2007) Yogyakarta Principles – Principles on the application of international human rights law in relation to sexual orientation and gender identity: www.icj.org/yogyakarta-principles. See also D. Brown: Making Room for Sexual Orientation

© Koninklijke Brill NV, Leiden, 2019 | DOI:10.1163/9789004327573_ 017 Children’s Health Rights and Gender Issues 383 now considered a seminal document in support of lgbti rights. Because of the ongoing and glaring violations of human rights experienced by mem- bers of the lgbti community, many human rights bodies have issued state- ments declaring that the rights of lgbti people are the same as all other people.3 lgbti children, like all children, are entitled to enjoy the protection and benefits of human rights and require a safe environment where their rights are promoted in order to participate fully in society.4 That this has not been the experience of many lgbti children, should be a matter of concern to all. What is at stake, beyond the lived reality and rights of these children, are questions of key concern to the field of biomedical law. These are therapeutic and non-therapeutic medical intervention; the principle of necessity; the right to consent to medical treatment; and the legal requirement that that consent is informed consent. These issues will be discussed both with respect to the protection and the promotion of the rights of the child. This chapter will focus on three significant issues confronting lgbti children.5 The first is the violence which many lgbti children experience because

and Gender Identity in International Human Rights Law: An Introduction to the Yogyakarta Principles, Michigan Journal of International Law 31 Summer 2010, no. 4, p. 821. 3 Office of the High Commissioner for Human Rights (2011) Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, A/HRC/19/41, par. 16, at: www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/ Session19/A- HRC-19-41_en.pdf; Organization of American States (2012) Human rights, sexual orientation and gender identity, Resolution AG/RES. 2653 (XLI-O/11), at: www.oas.org/ en/iachr/lgtbi/docs/GA%20Res%20%202721.pdf; Parliamentary Assembly of the Council of Europe (2010) Discrimination on the basis of sexual orientation and gender identity, Resolu- tion 1728, at: http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta10/ERES1728 .htm 4 The United Nations Convention on the Rights of the Child (1989) Treaty Series, 1577, 3 at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx; UN Committee on the Rights of the Child: Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination Against Women/General Comment No. 18 of the Committee on the Rights of the Child On Harmful Practices CEDAW/C/GC/31-CRC/C/GC/18 https://documents-dds-ny.un. org/doc/UNDOC/GEN/N14/627/78/PDF/N1462778.pdf?OpenElement; UN Committee on the Rights of the Child: General Comment No. 15: on the right of the child to the enjoyment of the highest attainable standard of health (Art. 24) CRC/C/ GC/ 13, 17 April 2013, at.http:// tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fG- C%2f15&Lang=en 5 Although much discussion about lgbti rights focuses on the rights of adolescents, I have used the term ‘children’ as it is used in Convention on the Rights of the Child, to refer to all up until the age of 18. The age range is significant, because focusing on adolescents fails to account for medical interventions in the lives of intersex children, in particular, that occur during infancy and childhood.