sign in sign up
<<
Home , Dan Christian Ghattas, Dignity, Intersex rights in Malta, Sexual differentiation

04/2015

The fundamental situation of people

Most European societies recognise people as either male or . However, this does not account for all variations in characteristics. As a result, intersex people experience fundamental rights violations ranging from to medical interventions without their consent.

This paper examines the legal situation of intersex people from a fundamental rights perspective. It draws on evidence from the Agency’s updated legal analysis on homophobia, , and discrimination on grounds of and identity, which now includes a section on intersex issues.

Key facts Key conclusions

 Many Member States legally require births  Legal and medical professionals should be to be certified and registered as either male better informed of the fundamental rights or female. of intersex people, particularly children.  In at least 21 Member States, sex  Gender markers in identity documents and ‘normalising’ surgery is carried out on birth registries should be reviewed to better intersex children. protect intersex people.  In 8 Member States, a legal representative  Member States should avoid non- can consent to sex ‘normalising' medical consensual ‘sex-normalising’ medical interventions independently of the child’s treatments on intersex people. ability to decide.  18 Member States require patient consent provided the child has the ability to decide.  Intersex discrimination is better covered by sex discrimination rather than discrimination on the basis of sexual orientation and/or as it concerns physical (sex) characteristics.

1 The fundamental rights situation of intersex people

them to fall outside of this classification. It can Introduction also lead to grave violations of their rights to physical and psychological integrity as well as ‘Intersex’ is used in this paper as an umbrella other fundamental rights. term to denote a number of different variations in a person’s bodily characteristics that do not match strict medical definitions of male or female. These characteristics may be Background chromosomal, hormonal and/or anatomical and may be present to differing degrees. Many In the intersex issues have variants of sex characteristics are immediately progressively emerged as relevant to detected at birth, or even before. Sometimes fundamental rights protection. However, they these variants become evident only at later are still largely treated as medical issues falling stages in life, often during . While most outside the scope of public scrutiny. A number of intersex people are healthy, a very small developments at EU level in recent years have percentage may have medical conditions which contributed to a better understanding of the might be life-threatening, if not treated problems intersex people face. For example, in promptly. 2013, the ‘working definitions’ laid down by the Council of the European Union stated that traditional notions of maleness and femaleness Intersex is a collective term for many natural 2 are culturally established. The ‘Lunacek Report’ variations in sex characteristics. It is not a of the European Parliament, also adopted in medical condition. 2013, recommended that the European Commission, EU Member States and relevant Medically, some of these variants are grouped agencies address the current lack of knowledge, under ‘disorders of sexual development’. research and relevant legislation on the 3 However, this is rejected by many, including rights of intersex people. activists and intersex people themselves, who perceive it to be stigmatising and pathologising.1 Member States have also raised the issue of It should also be noted that some intersex people intersex. For instance, in 2010, the Italian Committee on published a report may not wish to identify as such. reinforcing the exclusively medical approach to

intersex issues, reinstating sex binary as an Practices, such as issuing birth certificates and “indispensable element of personal identity”.4 medical treatments, can have an impact on the However, the Committee also stressed the fundamental rights of intersex people. For importance of acting in the best interest of the example, Article 1 of the Charter of Fundamental child, following a case-by-case approach, and Rights of the European Union, protects human avoiding surgical and medical intervention until dignity. Other Charter rights include: the right to the child is able to give . In integrity of the person (Article 3); respect for 2012, the German Council (Ethikrat) private and family life (Article 7); the right to published a comprehensive Opinion on intersex found a family (Article 9); and rights of the child, issues, providing a range of recommendations to including the right of children to express their safeguard the rights of intersex people.5 The views freely and to have their views taken into Opinion argues that legal systems presume a consideration on matters which concern them in strict sex binary that does not always occur in accordance with their age and maturity (Article nature. Thus, intersex issues should concern legal 24). Intersex people also benefit from the professionals and policy makers, and not only prohibition of discrimination under the Charter health and healthcare professionals. However, (Article 21). most organisations concerned with protecting

the rights of intersex people in the EU support the When basic aspects of a person’s legal status recommendations developed by the Swiss (e.g. birth or death registration), social status National Advisory Commission on Biomedical (e.g. access to services) or health conditions are Ethics instead of those adopted in EU Member frequently defined by the so-called ‘sex binary’ States. The Swiss recommendations emphasise classification of being either ‘male’ or ‘female’ that, as a rule, treatment should intersex people are often discriminated against. only be performed when the person concerned This is because their sex characteristics cause agrees. They also emphasise that intersex

2 FRA Focus 04/2015

children and their parents should be given policy. This is an area where the EU has exercised psychological counselling and support. The its competence in several specific domains which recommendations consider protecting the child’s touch on the protection of intersex people, such integrity as being essential.6 as employment, access to goods and services, and free movement. A study of intersex people published by the Netherlands Institute for Social research in 2014 Unequal treatment of intersex people has been found that virtually all the intersex people frequently addressed in EU policies and advocacy interviewed encountered problems in their social as part of discrimination on the ground of sexual situation. They talked about being ‘different’, orientation and/or gender identity. However, feeling lonely and experiencing shame and such treatment can better be addressed as .7 The study called for further discrimination on the ground of sex, as it is linked research into their experiences. to the sex assigned to a person at birth and its direct consequences. For example, an intersex Intersex issues are increasingly emerging also person incorrectly assigned a female sex at birth, among the activities of civil society, including may be prevented from marrying a in lesbian, gay, bisexual and those countries where civil marriage is not organisations. For example, ILGA- started possible for same-sex couples. working on intersex issues in 2008.8 The Organisation Intersex International Europe (OII) It is also important to bear in mind that intersex has been established as a cooperation platform refers to the bodily characteristics of a person. for intersex organisations in several European There is no evidence linking specific sex countries.9 In Austria for instance, the characteristics with either gender identity or Homosexual Initiative Salzburg (Homosexuelle sexual orientation. Thus, intersex people might Initiative Salzburg, HOSI) assigned a be as likely as non-intersex people to self- representative for intersex issues (Intersex- identify as heterosexual, bisexual, homosexual, Beauftragte). Specific intersex NGOs have also trans, etc. However, regardless of the sexual been established, such as the Association of orientation or gender identity of intersex people, Intersex People Austria (Verein Intersexueller they should benefit from protection from Menschen Österreich), and the Intersex Platform discrimination on the ground of sex under Article Austria (Plattform Intersex Österreich) - an 21 of the EU’s Fundamental Rights Charter. independent network of NGOs, scientists and Regarding secondary EU , it should be noted activists that aims to foster public discussion, and that the Lunacek Report has called on the offer advice and information.10 European Commission, together with relevant agencies to “issue guidelines specifying that transgender and intersex persons are covered under ‘sex’ in Directive 2006/54/EC [Gender Grounds for protection from Equality Directive (recast)]” (para. C. ii).17 discrimination So far, however, it appears that the directive has not been implemented in this way. FRA’s The Council of the European Union,11 and the research did not find sufficient legislation or case European Parliament12, as well as the Council of law to find out whether or not intersex people Europe,13 the UN High Commissioner for Human are actually protected from discrimination on the Rights,14 and the UN Special Rapporteur on grounds of sex in the Member States. In this Torture15, have all pointed out that intersex regard, the clarified that people can suffer from discrimination that may discrimination against intersex people is result in ill treatment, especially during generally intended to be covered under the childhood. An overview of the key category of sex. However, the explanatory note at stake in the protection of intersex people can of the German General Law on Equal Treatment also be found in the Commissioner for Human subsumed intersex issues under the ground of Rights of the Council of Europe’s Issue Paper on ‘sexual identity’.18 human rights and intersex people.16

Intersex civil society organisations are The provision of protection from discrimination advocating that a specific ground, ‘sex under Article 21 of the EU’s Fundamental Rights characteristics’, best identifies their needs when Charter is of special relevance for EU law and it comes to protection from discrimination.19

3 The fundamental rights situation of intersex people

Malta recently became the first (and only) EU Member State to explicitly provide protection Registration of sex at birth against discrimination on the ground of ‘sex Apart from a few recent pieces of legislation characteristics’. The recently-adopted ‘Gender described below, birth registration legislation in Identity, Gender Expression and Sex EU Member States tends to consider all Characteristics Act’20 requires public services to as either male or female. eliminate unlawful discrimination and Consequently, in most Member States it is harassment on the ground of sex characteristics. required, but not always possible, to assign a sex It also requires public services to promote to intersex new-borns. The moment when birth equality of opportunity for all, irrespective of certificates and registration takes place is these characteristics.21 frequently the first instance in which intersex

people are confronted with a legal issue. This is Two other positive examples were identified in very problematic for intersex children as it forces Spain and the United Kingdom, both at the those involved in certifying and registering birth regional level. In Spain, the Basque Country (particularly parents or other family members Act 14/2012 on non-discrimination based on responsible for the child, health professionals, gender identity includes references to “intersex and birth registry officials) to legally choose persons”.22 In the United Kingdom, the Scottish between the ‘male or female’ options. In Offences (Aggravation by Prejudice) Act 2009 addition, parents frequently lack psychological includes intersex issues in its very wide definition support services. Such support would allow them of gender identity i.e. “not standard male or to adequately face parenthood of intersex female”23 - thus also equating intersex with a children, and better respond to the challenges form of gender identity. posed by the social expectations, and legal and

medical requirements which they, and their In at least 10 EU Member States (Bulgaria, children, face. Estonia, Hungary, Italy, Luxembourg, Poland,

Portugal, Romania, Spain and Slovakia) the law In this way, legal requirements for birth has an open list of grounds of discrimination. certification and registration reinforce social Here, intersex may be included under the expectations that a child fits into existing sex protected characteristics or social groups categories. This influences the perceived category of ‘other’. This could help protect ‘medical need’ for treatment and intervention. intersex people from discrimination. However, The interplay of legal, social, and medical given the social and legal invisibility of intersex expectations creates a context in which the issues in society and in the legal system, child’s rights to physical and mental integrity, and considering such an approach can perpetuate this to express views freely can be easily overridden. invisibility. It could also result in acts of Such views should be taken into consideration on discrimination against intersex people remaining matters which concern the child in accordance unchallenged. Using this ground of protection with the child’s age and maturity. remains largely untested and unclear in practice,

given the scarcity of case law. Concerning birth certificates, 18 EU Member

States allow a certain delay in the registration of In seven EU Member States, policy makers or a new birth: within a week in Austria, Belgium, courts embrace broader concepts. These may Bulgaria, France, Luxembourg and Slovakia; implicitly cover intersex, for instance: gender (in longer in Cyprus, Denmark, Greece, Hungary, Austria,[i] Denmark,[ii] Finland[iii] and the Ireland, Italy, , Portugal, Romania, Slovenia, Netherlands[iv]); gender identity (in Romania[v] Spain and the United Kingdom. Sometimes and Slovenia[vi]); or both gender and gender certification follows a preliminary communication identity (in Sweden [vii]). that has been immediately filed by the medical

staff. For some intersex children, this delay may Intersex covers a large and diverse variation of be sufficient to allow for the medical sex characteristics. Therefore, it is likely that in identification of a ‘preponderant’ sex, however the absence of specific protective legislation, this may be defined. This leads to the legal intersex cases will be legally approached in imposition of a ‘male’ or ‘female’ sex. However, different ways, even within the same legal medical treatments, including surgery, on very system. young intersex children is common.24

4 FRA Focus 04/2015

At least four EU Member States allow a sex- reasonably expected after a maximum of three neutral identification to be registered in birth years of medical treatment.31 certificates, such as ‘unknown sex’ in the United Kingdom. In Latvia, sex is not included on the In Finland, the lack of sex certification implies birth certificate, but ‘unclear sex’ is allowed in that an intersex child gets an incomplete medical certificates issued by medical staff.25 personal identity code. This has potentially In the Netherlands, if the sex of a child is negative consequences. For example, a personal unclear, the birth certificate can state that the code is needed for contact with authorities, for sex could not be determined. Within three the payment of wages and salaries, or to open a months of the date of birth, a new birth bank account. certificate should be drawn up and the first one destroyed. In the new birth certificate, the sex In cases of errors in birth certificates, it is possible of the child should be mentioned based on a for intersex people to change the sex identifier medical statement. If no medical statement is later in life in EU Member States, such as submitted or if the sex cannot yet be Denmark, France and the Netherlands, without determined, the new birth certificate should meeting the requirements demanded for trans indicate that it is not possible to determine the people. In France these requirements include: the sex of the child. It is assumed that once an diagnosis of gender dysphoria; hormonal intersex person has decided on their sex treatment or physical adaptation; a court order; a identity, they can change the registration medical opinion; and genital surgery leading to according to Article 1:24 of the Civil Code, but sterilisation. no time limit is set. In Portuguese intersex cases, a person reporting the birth at the civil In general, intersex people and those who are registry office is advised to choose a first name responsible for caring for intersex children, that is easily adapted to either sex. It is largely need to rely on external, medical expected that the birth certificate will be assessments when it comes to the certification of amended accordingly, once a sex can be an intersex person’s sex. attributed with some precision.26

The German Ethics Council has recommended allowing the ‘other’ sex category in Medical treatment of certifications.27 In Germany, it is possible to issue birth certificates without a sex identifier or intersex children marker; since 1 November 2013, there is no In May 2014, various UN bodies released an deadline to include such a marker.28 interagency statement noting that “Intersex

persons, in particular, have been subjected to In Malta, the entry of a sex marker on the birth cosmetic and other non-medically necessary certification can be postponed until the gender surgery in infancy, leading to sterility, without identity of the child is determined. This follows informed consent of either the person in question the adoption of the ‘Gender Identity, Gender or their parents or guardians. Such practices have Expression and Sex Characteristics Act’ in April also been recognized as human rights violations 2015.29 Malta has also committed to recognising by international human rights bodies and national gender markers other than male or female, as Courts.” These bodies included the World Health well as the absence of such markers, from a Organisation (WHO), the Office of the High competent foreign court or responsible authority Commissioner for Human Rights (OHCHR), UN acting in accordance with the law of that country. Women, the Joint United Nations Programme on

HIV/AIDS (UNAIDS), the UN Development To a limited extent it is also possible to issue birth Programme (UNDP), the UN Population Fund certificates without a sex identifier or marker in (UNFPA) and the UN’s Children’s Fund (UNICEF). France and Finland. In France, ministerial guidelines advise parents to check with their In Europe, there are no comprehensive statistical doctor what the sex of the new-born is ‘most data on medical treatments or surgeries likely’ to be. This should be based on the performed on intersex children. The expected results of medical treatments, where Commissioner for Human Rights of the Council of appropriate.30 In this case, it is possible not to Europe has repeatedly pointed out that intersex specify a child’s sex, with the public prosecutor’s children are often subjected to surgery and consent as long as sex determination can be

5 The fundamental rights situation of intersex people

hormonal or other medical treatments aimed at There is little information on the existence of imposing a sex on them.32 Such surgery, medical protocols concerning the treatment of performed on intersex babies and toddlers, intersex people across the EU. In Austria, Estonia, which can be cosmetic rather than medically Spain, Finland, France, Hungary, Ireland, Italy, essential, may result in irreversible sex Luxembourg and the United Kingdom no official, assignment and even sterilisation.33 general medical protocol is applied. In Sweden, the National Board of Health and The Parliamentary Assembly of the Council of (Socialstyrelsen) has produced guidelines Europe in its Resolution 1952 (2013) on a child’s regarding the treatment of intersex children. The right to physical integrity called on its Member procedure specifies that examinations and States to “ensure that no-one is subjected to genital surgical procedures should not be unnecessary medical or surgical treatment that is performed between the ages of 2 and 12. cosmetic rather than vital for health during However, in most cases genital surgery is infancy or childhood, [and to] guarantee bodily reportedly performed before the age of six integrity [...] to persons concerned”.34 months.41 In Austria the recommendations of the previously mentioned German report 42 and the The UN Special Rapporteur on has Lawson Wilkins Pediatric Endocrine Society (USA) similarly called upon States and the European Society for Paediatric Endocrinology are referenced. These two “to repeal any law allowing intrusive and irreversible institutions have published the so-called treatments, including forced genital-normalizing surgery, ‘Consensus Statement on the management of involuntary sterilization, unethical experimentation, intersex disorders’ (also known as ‘the Chicago medical display, ‘reparative therapies’ or ‘conversion Consensus’) which proposed changes in therapies’, when enforced or administered without the terminology.43 However, this document has been free and informed consent of the person concerned.” criticised by intersex organisations as it intro- duced the term ‘disorders of sex development’ to The UN Special Rapporteur on torture has also describe intersex characteristics. Intersex called on States to outlaw forced or coerced organisations consider that the use of this term sterilisation in all circumstances and to provide pathologises the sex characteristics of intersex special protection to individuals belonging to people, and can justify ‘sex normalising’ medical 44 marginalised groups.35 treatment.

When not dictated by medical emergency, In the Netherlands, it is also common practice to surgery and medical treatments without the follow ‘the Chicago Consensus’, but this may not 45 consent of the patient or legal representatives apply to all hospitals. In any case, the issue is are recognised by international human rights law not how ‘good’ the treatment becomes, but as a form of cruel, inhuman and degrading whether it meets human rights standards if treatment. Genital surgery performed on intersex administered without consent when the people was equated to female genital mutilation ‘condition’ is not life threatening or will not lead (FGM) by the Conference of State (Länder) to significant harm. Ministers for Equality of Germany.36 FGM is internationally recognised as a violation of the In the United Kingdom, there are specific medical human rights of women and a form of child protocols for specific types of intersex abuse, and has been strongly condemned by the characteristics. In addition, there is a general EU Commission37 and Council.38 In Malta, the information page on the National Health Service 46 ‘Gender Identity, Gender Expression and Sex website. In Spain, protocols for specific forms of Characteristics Act’39 forbids sex assignment intersex characteristics are followed, such as the treatments and/or surgical intervention on the protocol developed by the Spanish Association of 47 sex characteristics of a child which can be Paediatrics (Asociación Española de Pediatría) deferred until the person to be treated can or the protocol of the European Association of 48 provide informed consent, unless in exceptional Urology. In France, the protocol on the circumstances. Agreement between an management of a specific form of intersex interdisciplinary team, appointed by the equality (congenital adrenal hyperplasia due to 21- minister, and those with parental authority, or hydroxylase deficiency) refers to surgical the child’s tutor, is also required.40 treatment in the first months after birth. Although there is no reference to consent, the protocol notes that “patients and parents should

6 FRA Focus 04/2015

be accompanied psychologically in the surgical However, there is often flexibility in assessing project”.49 these abilities, both in Member States where a certain reference age exists (for example, 12 There is also little case law on medical years in Belgium; 14 in Austria, Bulgaria, and treatments of intersex people. In one important Germany; 15 in Slovenia; and 16 in Lithuania and case in Germany, the Cologne District Court the United Kingdom) and in Member States recognised the pain and suffering of an intersex where there are assessments (for person who had been subjected to medical example, Finland, France and Italy). Such surgery 30 years earlier without adequate flexibility, while necessary in view of the information.50 The claimant brought a suit for variation in cognitive development, runs the risk damages - on the grounds of erroneous that medical procedures may be imposed on assignment of a sex and physical mutilation - children against their will. against the surgeon who, when the claimant was 18 years old, had removed her uterus and This is a broader issue concerning the fallopian tubes. In its decision, the court ruled that involvement of children in decision-making on the operation had been conducted without the matters that concern them. While adequate child necessary consent and that the claimant had not participation mechanisms are particularly been comprehensively informed by the important, in this context the key determinants defendant surgeon. The court later awarded appear to be: damages of €100,000 plus interest.51 (i) the minimum age from which a child is Sex (re)assignment or sex-related surgery seems involved in the decision-making process: this is to be performed on intersex children, and young complicated by variations in sex development people, in at least 21 EU Member States (Austria, that arise or are found before or at puberty. From Belgium, Bulgaria, the Czech Republic, Denmark, this perspective, ages of consent around or Estonia, Finland, France, Germany, Hungary, higher than 15 years old, as, for example, in Ireland, Italy, Latvia, Lithuania, Malta, the Denmark, Ireland, Lithuania, Poland, Slovenia, Netherlands, Poland, Slovakia, Spain, Sweden Spain and the UK might be too high. and the United Kingdom). However, it is not known how frequently such operations are (ii) whether intervention is postponed or consent conducted. In all these countries, informed is sought from parents, when the child is consent for surgery is required from the patient considered to be unable to decide: in at least six and/or legal representatives, except in cases of EU Member States, Austria, Germany, Hungary, medical emergency. Malta, the Netherlands and Sweden, current practices or government guidelines show a In eight Member States (Austria, Belgium, tendency to postpone medical treatments that Bulgaria, the Czech Republic, Estonia, Hungary, are not strictly necessary to safeguard health, Poland and Sweden), the legislation or medical until a child is considered capable of deciding. practice requires consent by the legal However, ‘sex normalising’ and/or cosmetic representative, independently of the child’s surgeries may still be performed on children ability to decide. In Spain, this is the case if without their informed consent. medical interventions entail ‘a serious risk’ for the child. (iii) what happens in cases of disagreement between the child, and parents or legal Patient consent seems to be legally required in at representatives when a child can decide, but least 18 Member States (Austria, Belgium, parental or a legal representative’s consent is Bulgaria, Denmark, Finland, France, Germany, also necessary: the situation varies between Ireland, Italy, Latvia, Lithuania, Malta, the Member States. In Italy and Poland, for example, Netherlands, Poland, Slovakia, Spain, Sweden the decision is made by a guardianship court; in and the United Kingdom). This is provided that Lithuania and Latvia the decision is made by the the child is considered to possess adequate medical staff involved. In a German Federal Court cognitive faculties and the ability to decide. In 14 of case – not directly related to intersex Member States (Austria, Belgium, Bulgaria, issues – the parents’ right to decide on medical Denmark, Germany, Ireland, Lithuania, Latvia, the treatment was limited by the child’s opposition Netherlands, Poland, Slovenia, Spain, Sweden to it given that the postponement of the and the United Kingdom), the child is presumed intervention did not endanger the child’s to have such abilities after a certain age. health.52

7 The fundamental rights situation of intersex people

Alternatives to gender markers in identity Concluding remarks documents should be considered to protect intersex people. The possibility of including a Intersex people face several challenges which gender-neutral marker could also be considered. relate to the law and medical intervention. Legal This is particularly important for birth and medical professionals should be better registration/certificates in situations where the aware of these challenges to ensure that the new-born child’s sex is unclear. fundamental rights of intersex people are fully

respected - particularly when they are children. EU Member States should avoid ‘sex-normalising’

medical treatments on intersex people without Intersex people will remain vulnerable to their free and informed consent. This would help discrimination as long as birth, and other, prevent violations of the fundamental rights of registries do not record sex identities intersex people, especially through practices appropriately, and as long as they are medically with irreversible consequences. diagnosed as men or women with a health

disorder.

1 OII Intersex Network (2012), The Terminology of 12 European Parliament (2014), Report on the EU Intersex. Roadmap against homophobia and discrimination 2 Council of the European Union (2013), Guidelines on grounds of sexual orientation and gender to promote and protect the enjoyment of all identity e2013/2183(INI)), Plenary sitting, No. human rights by lesbian, gay, bisexual, A7-0009/2014, 7 January 2014, Strasbourg. transgender and intersex (LGBT) persons, Foreign 13 Council of Europe (2013), Children’s right to Affairs Council Meeting, Luxembourg, physical integrity, Resolution 1952, Parliamentary 24 June 2013, p. 4. Assembly, Strasbourg. See also Council of Europe 3 European Parliament (2014), Report on the EU (2014), Commissioner for Human Rights Roadmap against homophobia and discrimination Comments, A boy or a girl or a person – intersex on grounds of sexual orientation and gender people lack recognition in Europe, 9 May 2014. identity (2013/2183(INI)), Plenary sitting, No. A7- 14 United Nations (UN), High Commissioner for 0009/2014, 7 January 2014, Strasbourg, Human Rights (2011), Discriminatory and (para. G. iv) practices and acts of against individuals 4 Italy, National Committee on Bioethics (Comitato based on their sexual orientation and gender Nazionale di Bioetica) (2010), The disturbances of identity, Human Rights Council, Nineteenth in children: Bioethics aspects session, Report No. A/HRC/19/41, (I disturbi della differenziazione sessuale nei 17 November 2011. minori: aspetti bioetici), Rome, Presidenza del 15 United Nations (UN), Special Rapporteur on Consiglio dei Ministri, p. 18. Torture (2013), Report of the Special Rapporteur 5 Germany, German Ethics Council (Deutscher on torture and other cruel, inhuman or degrading Ethikrat) (2012), Intersexualität, Berlin, Pinguin treatment or , Juan E. Méndez, Human Druck. Rights Council, Twenty-second session, Report No. 6 Switzerland, Swiss National Advisory Commission A/HRC/22/53, 1 February 2013. on Biomedical Ethics (2012), On the management 16 Council of Europe Commissioner for Human Rights of differences of sex development. Ethical issues Issue Paper, forthcoming. relating to ‘intersexuality’, Berne, November 17 European Parliament (2014), Report on the EU 2012, p. 18. Roadmap against homophobia and discrimination 7 Lisdonk, J. (2014), Living with intersex/dsd. An on grounds of sexual orientation and gender exploratory study of the social situation of persons identity e2013/2183(INI)), Plenary sitting, No. with intersex/dsd, Netherlands Institute for Social A7-0009/2014, 7 January 2014, Strasbourg. Research, The Hague, August 2014, p. 60. 18 Germany, Federal Parliament (Bundestag) (2006), 8 ILGA-Europe’s intersex work BT-Drs. 16/1780, 8 June 2006, p. 31; Germany, 9 See, http://oiieurope.org German Ethics Council (Deutscher Ethikrat) (2012), 10 Austria, Federal Ministry for Education, the Arts Intersexualität, Berlin, Pinguin Druck, p. 133. and Culture (Bundesministerium für Unterricht, 19 European Intersex Meeting (2014), Statement of Kunst und Kultur) (2012), Really intimate the European Intersex Meeting, 8 October 2014, (ganzschönintim), p. 69. point 2. 11 Council of the European Union (2013), Guidelines 20 Malta (2015), Act for the recognition and to promote and protect the enjoyment of all registration of the gender of a person and to human rights by lesbian, gay, bisexual, regulate the effects of such a change, as well as transgender and intersex (LGBT) persons, Foreign the recognition and protection of the sex Affairs Council Meeting, Luxembourg, characteristics of a person (Att għar- 24 June 2013. rikonoxximent u reġistrazzjoni tal-ġeneru ta’

8 FRA Focus 04/2015

personenstandsrechtlicher Vorschriften persuna u sabiex jirregola l-effetti ta’ dik il-bidla, (Personenstandsrechts-Änderungsgesetz – kif ukoll għarrikonoxximent u l-protezzjoni tal- PStRÄndG)), 7 May 2013. karatteristiċi tas-sess ta’ persuna), 2 April 2015. 29 Malta (2015), Act for the recognition and 21 Ibid., Article 14. registration of the gender of a person and to 22 Spain (2012), Ley 14/2012, de 28 de junio, de no regulate the effects of such a change, as well as discriminación por motivos de identidad de género the recognition and protection of the sex y de reconocimiento de los derechos de las characteristics of a person (Att għar- personas transexuales. rikonoxximent u reġistrazzjoni tal-ġeneru ta’ 23 United Kingdom, Scottish Parliament (2009), persuna u sabiex jirregola l-effetti ta’ dik il-bidla, Offences (Aggravation by Prejudice) (Scotland) kif ukoll għarrikonoxximent u l-protezzjoni tal- Act 2009, asp 8, sections 2 (2) and 2 (8). karatteristiċi tas-sess ta’ persuna), 2 April 2015, [i] Austria, Ombudsperson for Equal Treatment article 21. (Gleichbehandlungsanwaltschaft) (2013), 30 France, Minister of Justice (Ministère de la Justice) Gleichbehandlung fur̈ transgender Personen und (2011), Instruction about particular rules for intersexuelle Menschen. various acts of civil status concerning birth and [ii] Denmark, Board of Equal Treatment filiation (Circulaire relative aux règles particulières (Ligebehandlingsnævnet) (2013), Decision à divers actes de l’état civil relatifs à la naissance No. 249/2013, 27 November 2013. et à la filiation), 28 October 2011. [iii] Finland, Ombudsperson for Equality (2012), 31 Dan Christian Ghattas (2013), Human Rights Selvitys sukupuolivähemmistöjen asemasta, between the . A preliminary study on the life Helsinki, Tasa-arvovaltuutettu. situations of inter* individuals, Heinrich-Böll- [iv] Netherlands, Arnhem Court of Appeal Stiftung, p. 39. (Gerechtshof Arnhem) (2005), Case No. 32 Council of Europe, Commissioner for Human Rights ECLI:NL:GHARN:2005:AU7290, (2014), A boy or a girl or a person – intersex 15 November 2005. people lack recognition in Europe Human Rights [v] Information by the NCCD Centre for Legal Comment, Strasbourg. Resources. 33 Council of Europe, Commissioner for Human Rights [vi] Slovenia, Advocate of the Principle of Equality (2014), LGBT children have the right to safety and (Zagovorniknačelaenakosti), Opinion No. 0921- equality, Human Rights Comment, Strasbourg. 22/2010-7; Slovenia, Advocate of the Principle of 34 Council of |Europe, Parliamentary Assembly (PACE) Equality (Zagovorniknačelaenakosti), Opinion No. (2013), Resolution 1952 (2013) Final version on 0921-41/2011-UEM/10. Children’s right to physical integrity, 1 October [vii] Sweden, Swedish Government (2007), Report by 2013, para. 7.5.3.. the Gender Identity Investigation (Betänkande av 35 UN Special Rapporteur on torture (2013), p. 23. Könstillhörighetsutredningen), Modified gender 36 This was stated by the Conference of State identity: A proposal for a new law (Länder) Ministers for Equality of Germany. See (Ändradkönstillhörighet – förslag till ny lag), further Germany (2014), 24. Konferenz der Stockholm, SOU 2007/16., p. 39. Gleichstellungs- und Frauenministerinnen und - 24 Agius, S. and Tobler, C. (eds.), European minister, -senatorinnen und - enatoren der Länder Commission (2012), Trans and intersex people: am 1./2. Oktober 2014 in Wiesbaden, TOP 8.1 Discrimination on the grounds of sex, gender Paragraph 3. identity and gender expression, Report by the 37 European Commission (2013), Towards the European Network of Legal Experts in the non- elimination of female genital mutilation, discrimination field, Brussels. COM(2013) 833 final, Brussels, 25 November 25 Latvia (2012), Law on the Registration of the Civil 2013, p. 4. Status Acts (Civilstāvokļa aktu reģistrācijas 38 Council of the European Union (2014), Council likums), 29 November 2012, Latvian Herald conclusions – Preventing and combating all forms (Latvijuas Vēstnesis) 197(4800), of violence against women and girls, including 14 December 2012, available at: ; Latvia, Cabinet female genital mutilation, Justice and Home Affairs of Ministers (Ministru kabineta) (2006), Council meeting, Luxembourg, 5 and 6 June 2014, Regulations No. 265 On the record-keeping p. 2. procedures for medical documents (Noteikumi Nr. 39 Malta (2015), Act for the recognition and 265 ”Medicīnisko dokumentu lietvedības registration of the gender of a person and to kārtība”), 4 April 2006, 39. pielikums, Latvian regulate the effects of such a change, as well as Herald (Latvijas Vēstnesis) 57(3425), 7 April the recognition and protection of the sex 2006. characteristics of a person (Att għar- 26 Information by the Institute of Registration and rikonoxximent u reġistrazzjoni tal-ġeneru ta’ Notary Affairs (Instituto dos Registos e Notariado, persuna u sabiex jirregola l-effetti ta’ dik il-bidla, IRN) kif ukoll għarrikonoxximent u l-protezzjoni tal- 27 Germany, German Ethics Council (Deutscher karatteristiċi tas-sess ta’ persuna), 2 April 2015. Ethikrat) (2012), Intersexualität, Berlin, Pinguin 40 Ibid., Article 15. Druck. 41 Sweden, National Board of Health and Welfare 28 Germany (2013), Act to Amend Civil Status (Socialstyrelsen) (2010), Transsexuals and other Regulations (Gesetz zur Änderung

9 The fundamental rights situation of intersex people

Anomalies of sexual differentiation (Anomalías de people with gender identity disorder: Legal la diferenciación sexual). conditions for determination of sex as well as care 48 European Association of Urology (2010), Guía and support (Transsexuella och övriga personer clínica sobre urología pediátrica. med könsidentitetsstörningar – Rättsliga villkor för 49 France, High Authority for Health (Haute autorité fastställelse av könstillhörighet samt vård och de santé, HAS) (2011), Congenital adrenal stöd), 30 June 2010. hyperplasia due to 21-hydroxylase defic iency: 42 Germany, German Ethics Council (Deutscher National protocol for diagnosis and care Ethikrat) (2012), Intersexualität, Berlin, Pinguin (Hyperplasie congénitale des surrénales par déficit Druck. en 21-hydro xylase: Protocole national de 43 ‘The Chicago Consensus’, see: Lee, P.A. et al. diagnostic et de soins pour les maladies rares), (2006), ‘Consensus statement on management of p. 16. intersex disorders’, Pediatrics, Vol. 118, No. 2, pp. 50 Germany, Cologne District Court (Landgericht Köln) e488–e500. (2008), Case No. 25 O 179/07, 6 February 2008. 44 OII Intersex Network (2012), The Terminology of It should be noted that this ruling was criticised by Intersex. See also: Switzerland, Swiss National intersex organisations for endorsing a medicalised Advisory Commission on Biomedical Ethics (2012), approach. On the management of differences of sex 51 Germany, Cologne District Court (Landgericht development. Ethical issues relating to Köln), (2009), Case No. 25 O 179/07, ‘intersexuality’, Berne, November 2012, p. 9. 12 August 2009. 45 De Volkskrant (2010), Kiezen om te leven als man, 52 Germany, Federal Court of Justice als vrouw of allebei tegelijk, 22 May 2010. (Bundesgerichtshof) (2006), VI ZR 74/05, 46 NHS Choices (2014), Disorders of sex 10 October 2006. development, 12 November 2014. 47 Spain, Spanish Association of Pediatrics (Asociación Española de Pediatría) (2011),

10