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Making Room for the Rights of Intersex Children Legal Perspectives on Intersex Genital Surgeries

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Making Room for the Rights of Intersex Children Legal Perspectives on Intersex Genital Surgeries UNIVESITY OF UTRECHT European Master’s Degree in Human Rights and Democratisation A.Y. 2014/2015 Making Room for the Rights of Intersex Children Legal perspectives on intersex genital surgeries Author: Lena Holzer Supervisor: dr. Marjolein van den Brink Abstract The rights of intersex persons are a new topic on the human rights agenda. It has only been in the last ten years that international and national human rights institutions have started to address the issue of subjecting intersex children to “cosmetic” genital surgeries in order to make their genitalia look typically female or male. This thesis explores different legal approaches for regulating these medically unnecessary intersex genital surgeries performed on non-consenting children. At first, this study examines how international and national human rights bodies have so far responded to intersex rights activists’ claims that the surgical alteration of children’s intersexed genitalia are human rights violations. The primary focus of this thesis is to analyse the extent to which different national approaches of protecting the rights of intersex persons have truly been in the best interests of intersex children. General Comment No. 14 of the CRC Committee provides the analytical framework for evaluating whether or not a legal measure ensures the child’s best interests. The study aims to shed some light on the debate on which legal measures need to be implemented in the future if states want to ensure that intersex children’s human rights are not being violated as a consequence of genital surgeries. 1 Acknowledgments I warmly thank my thesis supervisor dr. Marjolein van den Brink for her guidance and support, her many inspiring inputs and perspectives and for trusting in me to develop my own thoughts. I further thank my mother for having supported and advised me throughout this Master programme and my entire life. I thank my sister for encouraging and believing in me and for always being there for me when I most need her. My thanks also goes to Valerio who beard with me during my research and made me laugh and eat and whose inputs I always appreciate. I further thank Clarissa for her corrections and patience. Finally, I also thank all civil society organizations that provided me with input and different perspectives. 2 Table of Acronyms CAH Congenital Adrenal Hyperplasia CAT Convention against Torture and Other, Cruel, Inhuman or Degrading Treatment CEDAW Convention on the Elimination of all Forms of Discrimination against Women CRC Convention on the Rights of the Child CRIA Child’s rights impact assessment CRPD Convention on the Rights of Persons with Disabilities DSD Disorder of Sex Development or Difference of Sex Development ECHR European Convention on Human Right ECtHR European Court for Human Rights FGC Female Genital Circumcision GIGESC Act Gender Identity, Gender Expression and Sex Characteristics Act 2015 ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ISNA Intersex Society of North America LGBT Lesbian, Gay Bisexual and Transgender NNID Dutch Network for Intersex/DSD NSW New South Wales OII Organization Intersex International UDHR Universal Declaration for Human Rights UN United Nations 3 Table of Contents Introduction ......................................................................................................................................... 6 1. Methodological Considerations................................................................................................. 12 1.1. Methodology ..................................................................................................................... 12 1.2. Definitions ......................................................................................................................... 15 1.3. The analytical framework: The best interests of the child ................................................ 20 1.3.1. Three elements of the best interests of the child ....................................................... 22 1.3.2. The obligations of states to apply the concept of the best interests of the child ....... 22 1.3.3. The assessment and determination of the best interests of the child ......................... 23 1.4. Summary ........................................................................................................................... 25 2. Background Information on Intersex Genital Surgeries ............................................................ 26 2.1. The development of intersex genital surgeries .................................................................. 26 2.1.1. The sex assignment of intersex persons from the late 19th to the early 20th century . 27 2.1.2. The Optimal Gender Policy ....................................................................................... 27 2.1.3. What has happened since the 1990s? ........................................................................ 29 2.2. The Hamburger Study on Intersexuality ........................................................................... 31 2.3. Conclusions ....................................................................................................................... 32 3. Intersexuality and Human Rights .............................................................................................. 34 3.1. The right to bodily integrity and the prohibition of torture and ill-treatment.................... 35 3.2. The right to self-determination .......................................................................................... 39 3.3. Intersex genital surgeries as traditional harmful practices ............................................... 43 3.4. Conclusions ....................................................................................................................... 46 4. National Legal Frameworks and Intersexuality ........................................................................ 47 4.1. Legal sex registration ........................................................................................................ 48 4.1.1. Blank sex registry: The German and Dutch sex registration models ........................ 49 4.1.1.1. Best-interests assessment .................................................................................. 53 4.1.1.2. Best-interests determination .............................................................................. 55 4.1.2. Third legal sex categories: The Australian Norrie case ............................................ 56 4.1.2.1. Best-interests assessment .................................................................................. 60 4.1.2.2. Best-interests determination .............................................................................. 61 4.1.3. Abolishment of sex as a category to be registered on identification documents ....... 62 4.1.3.1. Best-interests assessment .................................................................................. 64 4 4.1.3.2. Best-interests determination .............................................................................. 65 4.1.4. Conclusions ..................................................................................................................... 65 4.2. Anti-discrimination laws ................................................................................................... 67 4.2.1. Different approaches to include intersex in anti-discrimination legislations ............ 68 4.2.2. Conclusions ............................................................................................................... 70 4.3. Legal measures that determine when intersex genital surgeries may be performed ......... 70 4.3.1. Informed consent guarantees: Judgments by the Constitutional Court of Colombia 72 4.3.1.1. Best-interests determination .............................................................................. 76 4.3.2. Decision-making by a court or a multidisciplinary committee ................................. 77 4.3.2.1. Best-interests determination .............................................................................. 81 4.3.3. Prohibition of all intersex genital surgeries performed on non-consenting children. 83 4.3.3.1. Best-interests determination .............................................................................. 84 4.3.4. Conclusions ............................................................................................................... 85 4.4. Conclusions ....................................................................................................................... 87 5. Summary and Conclusion ......................................................................................................... 89 Bibliography ...................................................................................................................................... 91 5 Introduction Intersexuality and its legal implications are mainly invisible, at least in most legal systems in Europe, North America and Australia. In the last century, if intersexuality was recognized and discussed at all, it was mainly perceived as a social or medical problem but rarely as a legal issue. Whereas around the end of the 19th century when lawmakers and courts still played a significant role in the determination of the sex of intersex persons, the improvement of medical techniques since the beginning of the 20th century made physicians the primary arbiter
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