Professional Documents
Culture Documents
Most European societies recognise people as either male or female. However, this does not
account for all variations in sex characteristics. As a result, intersex people experience
fundamental rights violations ranging from discrimination 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 Agencys updated legal analysis on homophobia,
transphobia, and discrimination on grounds of sexual orientation and gender identity, which
now includes a section on intersex issues.
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 childs 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 gender identity as it
concerns physical (sex) characteristics.
1
The fundamental rights situation of intersex people
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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 childs 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
embarrassment.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 woman in
lesbian, gay, bisexual and transgender those countries where civil marriage is not
organisations. For example, ILGA-Europe 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 sterreich), and the Intersex Platform discrimination on the ground of sex under Article
Austria (Plattform Intersex sterreich) - an 21 of the EUs Fundamental Rights Charter.
independent network of NGOs, scientists and Regarding secondary EU law, 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
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The fundamental rights situation of intersex people
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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 persons sex.
attributed with some precision.26
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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 Welfare
The Parliamentary Assembly of the Council of (Socialstyrelsen) has produced guidelines
Europe in its Resolution 1952 (2013) on a childs 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 torture 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
marginalised groups.35 treatment.44
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
consent of the patient or legal representatives apply to all hospitals.45 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 (Lnder) 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
Gender Identity, Gender Expression and Sex website.46 In Spain, protocols for specific forms of
Characteristics Act39 forbids sex assignment intersex characteristics are followed, such as the
treatments and/or surgical intervention on the protocol developed by the Spanish Association of
sex characteristics of a child which can be Paediatrics (Asociacin Espaola de Pediatra)47
deferred until the person to be treated can or the protocol of the European Association of
provide informed consent, unless in exceptional Urology.48 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 childs 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
7
The fundamental rights situation of intersex people
1 12
OII Intersex Network (2012), The Terminology of 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 identitye2013/2183(INI)), Plenary sitting, No.
human rights by lesbian, gay, bisexual, A7-0009/2014, 7 January 2014, Strasbourg.
13
transgender and intersex (LGBT) persons, Foreign Council of Europe (2013), Childrens 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.
14
identity (2013/2183(INI)), Plenary sitting, No. A7- United Nations (UN), High Commissioner for
0009/2014, 7 January 2014, Strasbourg, Human Rights (2011), Discriminatory laws and
(para. G. iv) practices and acts of violence 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
sexual differentiation in children: Bioethics aspects session, Report No. A/HRC/19/41,
(I disturbi della differenziazione sessuale nei 17 November 2011.
15
minori: aspetti bioetici), Rome, Presidenza del 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), Intersexualitt, Berlin, Pinguin treatment or punishment, Juan E. Mndez, Human
Druck. Rights Council, Twenty-second session, Report No.
6
Switzerland, Swiss National Advisory Commission A/HRC/22/53, 1 February 2013.
16
on Biomedical Ethics (2012), On the management Council of Europe Commissioner for Human Rights
of differences of sex development. Ethical issues Issue Paper, forthcoming.
17
relating to intersexuality, Berne, November 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 identitye2013/2183(INI)), Plenary sitting, No.
with intersex/dsd, Netherlands Institute for Social A7-0009/2014, 7 January 2014, Strasbourg.
18
Research, The Hague, August 2014, p. 60. Germany, Federal Parliament (Bundestag) (2006),
8
ILGA-Europes 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 Intersexualitt, Berlin, Pinguin Druck, p. 133.
19
and Culture (Bundesministerium fr Unterricht, European Intersex Meeting (2014), Statement of
Kunst und Kultur) (2012), Really intimate the European Intersex Meeting, 8 October 2014,
(ganzschnintim), p. 69. point 2.
11 20
Council of the European Union (2013), Guidelines 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 gar-
24 June 2013. rikonoxximent u reistrazzjoni tal-eneru ta
8
FRA Focus 04/2015
personenstandsrechtlicher Vorschriften
persuna u sabiex jirregola l-effetti ta dik il-bidla, (Personenstandsrechts-nderungsgesetz
kif ukoll garrikonoxximent u l-protezzjoni tal- PStRndG)), 7 May 2013.
29
karatteristii tas-sess ta persuna), 2 April 2015. 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
discriminacin por motivos de identidad de gnero the recognition and protection of the sex
y de reconocimiento de los derechos de las characteristics of a person (Att gar-
personas transexuales. rikonoxximent u reistrazzjoni tal-eneru ta
23
United Kingdom, Scottish Parliament (2009), persuna u sabiex jirregola l-effetti ta dik il-bidla,
Offences (Aggravation by Prejudice) (Scotland) kif ukoll garrikonoxximent u l-protezzjoni tal-
Act 2009, asp 8, sections 2 (2) and 2 (8). karatteristii tas-sess ta persuna), 2 April 2015,
[i]
Austria, Ombudsperson for Equal Treatment article 21.
30
(Gleichbehandlungsanwaltschaft) (2013), France, Minister of Justice (Ministre de la Justice)
Gleichbehandlung fur 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 rgles particulires
(Ligebehandlingsnvnet) (2013), Decision divers actes de ltat civil relatifs la naissance
No. 249/2013, 27 November 2013. et la filiation), 28 October 2011.
31
[iii]
Finland, Ombudsperson for Equality (2012), Dan Christian Ghattas (2013), Human Rights
Selvitys sukupuolivhemmistjen asemasta, between the Sexes. A preliminary study on the life
Helsinki, Tasa-arvovaltuutettu. situations of inter* individuals, Heinrich-Bll-
[iv]
Netherlands, Arnhem Court of Appeal Stiftung, p. 39.
32
(Gerechtshof Arnhem) (2005), Case No. 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.
33
Resources. Council of Europe, Commissioner for Human Rights
[vi]
Slovenia, Advocate of the Principle of Equality (2014), LGBT children have the right to safety and
(Zagovorniknaelaenakosti), Opinion No. 0921- equality, Human Rights Comment, Strasbourg.
34
22/2010-7; Slovenia, Advocate of the Principle of Council of |Europe, Parliamentary Assembly (PACE)
Equality (Zagovorniknaelaenakosti), Opinion No. (2013), Resolution 1952 (2013) Final version on
0921-41/2011-UEM/10. Childrens right to physical integrity, 1 October
[vii]
Sweden, Swedish Government (2007), Report by 2013, para. 7.5.3..
35
the Gender Identity Investigation (Betnkande av UN Special Rapporteur on torture (2013), p. 23.
36
Knstillhrighetsutredningen), Modified gender This was stated by the Conference of State
identity: A proposal for a new law (Lnder) Ministers for Equality of Germany. See
(ndradknstillhrighet frslag 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 Lnder
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.
37
identity and gender expression, Report by the 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.
38
Status Acts (Civilstvoka aktu reistrcijas Council of the European Union (2014), Council
likums), 29 November 2012, Latvian Herald conclusions Preventing and combating all forms
(Latvijuas Vstnesis) 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.
39
procedures for medical documents (Noteikumi Nr. Malta (2015), Act for the recognition and
265 Medicnisko dokumentu lietvedbas registration of the gender of a person and to
krtba), 4 April 2006, 39. pielikums, Latvian regulate the effects of such a change, as well as
Herald (Latvijas Vstnesis) 57(3425), 7 April the recognition and protection of the sex
2006. characteristics of a person (Att gar-
26
Information by the Institute of Registration and rikonoxximent u reistrazzjoni tal-eneru ta
Notary Affairs (Instituto dos Registos e Notariado, persuna u sabiex jirregola l-effetti ta dik il-bidla,
IRN) kif ukoll garrikonoxximent u l-protezzjoni tal-
27
Germany, German Ethics Council (Deutscher karatteristii tas-sess ta persuna), 2 April 2015.
40
Ethikrat) (2012), Intersexualitt, Berlin, Pinguin Ibid., Article 15.
41
Druck. Sweden, National Board of Health and Welfare
28
Germany (2013), Act to Amend Civil Status (Socialstyrelsen) (2010), Transsexuals and other
Regulations (Gesetz zur nderung
9
The fundamental rights situation of intersex people
10