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

  • Fae Garland (a1) and Mitchell Travis (a2)
Abstract

This paper presents the findings from the first qualitative study to consider the relationship between intersex experience and law, representing a significant contribution to a currently under-researched area of law. Since 2013 there has been a global move towards the legal recognition of intersex, with Australia, Germany and Malta all using different techniques to construct and regulate intersex embodiment. This paper is the first to compare and problematise these differing legal approaches in the legal literature. In doing so it demonstrates that many of these approaches are grounded in ideas of formal equality that lead to the entrenchment of vulnerability and fail to build resilience for the intersex community. Through engagement with the intersex community a more contextual account of substantive equality is enabled, encouraging new approaches to law and social justice. Our qualitative study revealed that prevention of non-therapeutic medical interventions on the bodies of children was understood to be the key method to achieving equality for intersex embodied people. Whilst this is the cornerstone of intersex-led legislative reform, such an approach necessitates support through a mixture of formal and substantive equality methods such as anti-discrimination law, education and enforcement procedures. This paper concludes by offering a series of recommendations to legislators capable of enabling substantive intersex equality.

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Copyright
Corresponding author
*Corresponding author. Email: m.travis@leeds.ac.uk
Footnotes
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This project was made possible by funding from the Socio-Legal Studies Association small grants scheme and the generosity and vision of our participants. We would also like to thank Anne Barlow, Neil Cobb, Georgiann Davis, Sarah Devanney, Chris Dietz, Sam Lewis, Michael Thomson and Julie Wallbank for their insightful comments on an earlier version of this paper. All mistakes remain our own.

Footnotes
References
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1 In 2003, Australia's Department for Foreign Affairs and Trade recognised a third marker on passports. Since then, different jurisdictions have brought in legislative provisions designed to offer greater protections to intersex: see eg South Africa's Judicial Matters Amendment Act 2005; Scotland's Offences (Aggravation by Prejudice) (Scotland) Act 2009; Australia's Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act (Cth) 2013; Germany's Gesetz zur Änderung personenstandsrechtlicher Vorschriften (Personenstandsrechts-Änderungsgesetz—PStRÄndG) 2013; Jersey's Discrimination (Sex and Related Characteristics) (Jersey) Regulations 2015; Finland's laki miesten ja naisten välisestä tasa-arvosta/lag om jämställdhet mellan kvinnor och män, Act no 609/1986; Bosnia-Herzegovina's Law on the Prohibition of Discrimination 2009; and Malta's Gender Identity, Gender Expression and Sex Characteristics Act 2015 (GIGESC). Iceland considered introducing legislative protections similar to the Maltese approach in 2017. This was rejected by parliament in 2018.

2 The terminology for intersex is contested. See eg Davis, G Contesting Intersex: The Dubious Diagnosis (New York: New York University Press, 2015). The authors use the term ‘intersex embodiment’ as it highlights the material and biological basis of intersex as well as how intersex is socially constructed through institutions such as medicine, family and/or law. For the authors, embodiment takes place at the intersection of the material, the discursive and the institutional. This tripartite lens allows us to consider how the materiality of the body is situated, understood and constructed. The impacts of these constructions on the body make it ultimately impossible to understand materiality outside of the confines of discourse and institutions. Such an analysis therefore pays attention to medical and legal legacies around intersex but does not privilege them or attempt to pathologise intersex experience. Consequently, this paper does not use the medical term ‘disorders of sex development’ (DSD) or ‘differences of sex development’ due to their privileging of medical power/knowledge. For more discussion of embodiment see M Travis ‘The vulnerability of heterosexuality: consent, gender deception and embodiment’ (2018) Social and Legal Studies; and C Dietz ‘Governing legal embodiment: on the limits of self-declaration’ (2018) Feminist Legal Studies 1.

3 Kolbe, AIntersex, a blank space in German law?’ in Holmes, M (ed) Critical Intersex (Farnham: Ashgate, 2009) p 147.

4 Mackenzie, CThe importance of relational autonomy and capabilities for an ethics of vulnerability’ in Mackenzie, C, Rogers, W and Dodds, S (eds) Vulnerability: New Essays in Ethics and Feminist Philosophy (Oxford: Oxford University Press, 2014) p 33; Wallbank, J and Herring, JIntroduction: vulnerabilities, care and family law’ in Wallbank, J and Herring, J (eds) Vulnerabilities, Care and Family Law (Oxford: Routledge, 2013) p 1.

5 Travis, MAccommodating intersexuality in European Union anti-discrimination law’ (2014) 21(2) European Law Journal 180 at 182.

6 Germany's Gesetz zur Änderung personenstandsrechtlicher Vorschriften (Personenstandsrechts-Änderungsgesetz—PStRÄndG) 2013 states, § 22 Abs 3: ‘(3) If the child can be assigned to neither the female nor the male sex, then the child must be entered into the register of births without such a specification’. A recent decision by the Bundesverfassungsgericht went beyond this to highlight a need for the positive recognition of a third gender option (Order of 10 October 2017 – 1 BvR 2019/16). Australia's Department for Foreign Affairs and Trade recognises a third marker on passports, while the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act (Cth) 2013 inserted section 5(c) into the Sex Discrimination Act 1984 to recognise intersex as a possible ground for anti-discrimination.

7 See eg Malta's GIGESC.

8 Fineman, MAThe vulnerable subject and the responsive state’ (2010) 60 Emory LJ 251 at 268, and 266 fn 53.

9 Davis, above n 2.

10 See eg Fausto-Sterling, A Sexing the Body: Gender Politics and the Construction of Sexuality (New York: Basic Books, 2000).

11 Greenberg, JA Intersexuality and the Law: Why Sex Matters (London: New York University Press, 2012) p 5.

12 Greenberg, above n 11, pp 5–6. Problems can include osteoporosis, infection, scarring, incontinence and sexual functioning as well as psychological trauma. The UN has deemed such medical interventions to be ‘harmful practices’, ‘violation[s] of integrity’ and ‘inhuman treatment’ UN Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E Méndez, 1 February 2013, A/HRC/22/53, at para 77, available at https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-53-Add4_EFS.pdf (last accessed 16 July 2018). See also Council of Europe Parliamentary Assembly, Resolution 1952 Children's right to physical integrity, 2013, available at http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20174&lang=en (last accessed 16 July 2016).

13 Typically these interventions are at birth, before sex must be formally registered. In England and Wales the Births and Deaths Registration Act 1953, s 2, provides that the sex of the child (and other details) must be given to the Registrar of births and deaths within 42 days.

14 Davis, above n 2.

15 Travis, above n 5, at 182; Karpin, I and Mykitiuk, RFeminist legal theory as embodied justice’ in Fineman, MA (ed) Transcending the Boundaries of Law: Generations of Feminism and Legal Theory (Oxford: Routledge, 2011) p 115.

16 Ahmed, SF et al. ‘Society for Endocrinology UK guidance on the initial evaluation of an infant or an adolescent with a suspected disorder of sex development’ (2016) 84(5) Clinical Endocrinology 771.

17 Bird, JOutside the law: intersex, medicine and the discourse rights’ (2016) 12 Cardozo Journal of Law and Gender 65 at 66.

18 Ibid, at 67.

19 Fineman, MThe vulnerable subject: anchoring equality in the human condition’ (2008) 20 Yale Journal of Law and Feminism 1; Fineman, above n 8; Fineman, M“Elderly” as vulnerable: rethinking the nature of individual and societal responsibility’ (2012) 20 The Elder Law Journal 101; Fineman, MVulnerability, resilience, and LGBT youth’ (2014) 23 Temple Political & Civil Rights Law Review 307.

20 N Fraser in Fraser, N and Honneth, A Redistribution or Recognition? A Political-Philosophical Exchange (London: Verso, 2003).

21 As shall be discussed in the context of intersex, such approaches fail to engage with the main concerns of the intersex community. These approaches may be better, however, than a UK approach which has made no attempt at equality.

22 Fineman (2008), above n 19.

23 Fineman (2012), above n 19, at 131–132.

24 Fineman, above n 8, at 266 fn 53.

25 Fineman, MEquality, autonomy, and the vulnerable subject in law and politics’ in Fineman, M and Grear, A (eds) Vulnerability: Reflections on a New Ethical Foundation for Law and Politics (Farnham: Ashgate, 2013) p 1 at p 19 fn 3.

26 See n 8.

27 This has occurred in Victoria and New South Wales. Eg in Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 the High Court of New South Wales held that the registrar could record the sex of someone as ‘non-specific’ rather than ‘male’ or ‘female’. Here, the Court acknowledged that: ‘… [n]ot all human beings can be classified by sex as either male or female …’.

28 See https://www.passports.gov.au/passportsexplained/theapplicationprocess/eligibilityoverview/Pages/changeofsexdoborpob.aspx (last accessed 10 July 2018). Individuals have to provide medical evidence of their intersex status. The right to a non-binary passport has also recently been won in the US, see http://www.lambdalegal.org/in-court/legal-docs/zzyym_co_20161122_order (last accessed 10 July 2018).

29 Section 16 Judicial Matters Amendment Act 2005 amended the Promotion of Equality and Prevention of Unfair Discrimination Act (2000) so that s 1 now includes intersex within the protected characteristic of sex.

30 The Discrimination (Sex and Related Characteristics) (Jersey) Regulations 2015 amended the Discrimination (Jersey) Law 2013 to include intersex within the definition of sex.

31 Section 3(5) laki miesten ja naisten välisestä tasa-arvosta/lag om jämställdhet mellan kvinnor och män, Act no 609/1986, Finland's Gender Equality Act was amended in 2015 to extend protections to intersex individuals.

32 Article 2 Law on the Prohibition of Discrimination 2009 was amended in July 2016.

33 Scotland's anti-discrimination law is governed by the Equality Act 2010, which does not recognise intersex as a protected characteristic. This Act also covers England and Wales.

34 Section 2 Offences (Aggravation by Prejudice) (Scotland) Act 2009. Rather problematically, however, intersex falls under the definition of ‘transgender identity’ under s 8(a).

35 See n 7.

36 New Zealand also allows ‘X’ on passports for those of ‘indeterminate/unspecified’ sex, however, there is no mention of ‘intersex’ and applicants are classified as ‘transgender applicants’, thus it is questionable how far intersex individuals would be able to use this third marker. See https://www.passports.govt.nz/transgender-applicants (last accessed 10 July 2018). Outside of the West, Bangladesh allows a third marker for its trans, intersex or third-gender individuals.

37 In Germany, for example, the decision to not assign male or female to an intersex infant may rest with the parents.

38 Greenberg, above n 11, p 49.

39 See eg Travis, above n 2.

40 Sex Discrimination Act 1984, s 5C.

41 Bird, above n 17, at 67.

42 Since the interviews Portugal has introduced Law No 75/XIII/2 2018 prohibiting non-therapeutic medical interventions on intersex children.

43 GIGESC, Objects and Reasons.

44 GIGESC, s 4 allows individuals to change official records of their gender without any requiring medical evidence.

45 GIGESC, s 4 allows individuals to request change in first name and recorded gender to reflect self-determined gender. No medical evidence is necessary. Section 10(3) amends Art 83B of the Maltese Criminal Code to include offences motivated on the basis of gender expression and sex characteristics. GIGESC, s 14 prohibits discrimination on the basis of sexual orientation, gender identity, gender expression and sex characteristics’ discrimination.

46 Fourteen were interviewed by telephone, three submitted electronic email responses either because of resources or because they did not want to be interviewed. One telephone interview involved two of the respondents who wanted to be interviewed together.

47 There is no set minimum for the number of respondents to take place in a qualitative project. F Garland ‘Section 15 Property (Relationships) Act 1976: compensation, substantive equality and empirical realities’ (2014) 3 New Zealand Law Review 355 at 373. See also Baker, S and Edwards, RHow many qualitative interviews is enough? Expert voices and early career reflections on sampling and cases in qualitative researchNational Centre for Research Methods Review Paper (2012, ESRC).

48 This term ‘activists’ also includes support groups and education workers. For a comprehensive explanation of the ways in which activism has developed in the intersex movement see Davis, above n 2; Dreger, A and Herndon, AProgress and politics in the intersex rights movement: feminist theory in action (2009) 15(2) GLQ: A Journal of Lesbian and Gay Studies 199.

49 A few particularly pertinent questions may be how far activists from the global south identify as being part of this ‘global community’ or are capable of joining such a community and how far their concerns mirror those of activist groups in the global north.

50 The information sheets set out the project's details and contact details of intersex support groups. Participants were made aware that they could withdraw from the process at any time, and all data was anonymised by removing any identifying information. To ensure confidentiality, access to non-anonymised data was limited to the authors. For the Socio Legal Studies Association's Statement of Principles Guiding Empirical Research see http://www.slsa.ac.uk/images/slsadownloads/ethicalstatement/slsa%20ethics%20statement%20_final_%5B1%5D.pdf (last accessed 10 July 2018).

51 This six step process was: (1) to familiarise one's self with the data; (2) generate initial codes; (3) search for themes; (4) review themes; (5) define and name themes; and (6) produce the report: V Braun and V Clarke ‘Using thematic analysis in psychology’ (2006) 3 Qualitative Research in Psychology 77, 84 and 87.

52 This evidence has been found elsewhere. See Greenberg, above n 11, pp 21–25; Jones, T et al. Intersex: Stories and Statistics from Australia (Cambridge: Open Book Publishers, 2016) available at http://interactadvocates.org/wp-content/uploads/2016/01/Intersex-Stories-Statistics-Australia.pdf (last accessed 10 July 2018) pp 109–113 and Chapter 6; Minto, C et al. ‘The effect of clitoral surgery on sexual outcome in individuals who have intersex conditions with ambiguous genitalia: a cross-sectional study’ (2013) 361 Lancet 1252; and also UN Human Rights Council, above n 12, at para 77.

53 This is reflected in the literature, see eg Preves, S Intersex and Identity: The Contested Self (New York: Rutgers University Press, 2003).

54 This criticism has been reflected in the academic literature. See, for example, Greenberg, above n 11, p 21; Creighton, SSurgery for intersex’ (2001) 94(5) Journal of the Royal Society of Medicine 218; and Holmes, MDistracted attentions: intersexuality and human rights protections’ (2005) 12 Cardozo Journal of Law and Gender 127.

55 See eg Jones et al, above n 52, pp 106–109.

56 Respondent 15.

57 Respondent 10.

58 Carla (Medical Procedure) [2016] Fam CA 7 (20 January 2016). See M Carpenter ‘The Family Court case Re: Carla (Medical procedure) [2016] Fam CA 7’ (2016) available at https://oii.org.au/31036/re-carla-family-court/ (last visited 17 July 2018) for a critique of the case.

59 Respondent 7.

60 Fineman (2014), above n 19, at 116.

61 Fineman (2014), above n 19, at 110.

62 Creighton, above n 54; Holmes, above n 54; Carpenter, above n 58.

63 UN Human Rights Council, above n 12; Council of Europe, above n 12.

64 Fineman, above n 25; Collins, HDiscrimination, equality and social inclusion’ (2003) 66 Modern Law Review 16.

65 Respondent 13.

66 Fineman, above n 25, p 15.

67 Fineman, above n 25, p 15. Fraser, above n 20.

68 Fineman, above n 25, p 15.

69 Fineman (2014), above n 19, at 109.

70 Ibid.

71 See, for example, recent controversy whereby an IVF company specialising in the removal of intersex traits in embryos sponsored a LGBTI event: https://oii.org.au/30555/sponsorship-elimination-intersex-traits/ (last accessed 10 July 2018).

72 Respondent 4.

73 This would fit the trend towards self-declaration in legal gender recognition for trans people (eg Ireland, Norway and Malta) and additionally benefit non-binary identities. For a critique of self-declaration see Dietz, above n 2.

74 Germany's Gesetz zur Änderung personenstandsrechtlicher Vorschriften (Personenstandsrechts-Änderungsgesetz—PStRÄndG) 2013.

75 § 22 Abs 3: (3).

76 Travis, above n 5, at 182.

77 See above n 36.

78 Some of these concerns may have been mitigated by a recent court ruling, which held that people claiming a third gender could utilise existing anti-discrimination law on gender (Order of 10 October 2017 – 1 BvR 2019/16).

79 International, Amnesty First Do No Harm; Ensuring the Rights of Children with Variations of Sex Characteristics in Denmark and Germany (London: Amnesty International, 2017).

80 For an interesting discussion on this point see Cooper, D and Renz, FIf the state decertified gender, what might happen to its meaning and value?’ (2016) 43 Law and Society 483.

81 See eg Clough, BVulnerability and capacity to consent to sex – asking the right questions?’ (2014) 26 Child and Family Law Quarterly 371.

82 Bird, above n 17, at 67.

83 Respondent 17.

84 Fox, M and Thomson, MCutting it: surgical interventions and the sexing of children’ (2006) 12 Cardozo Journal of Law and Gender 81; Grabham, EBodily integrity and the surgical management of intersex’ (2012) 18 Body and Society 1; Chau, P-L and Herring, JDefining, assigning and designing sex’ (2002) 16 International Journal of Law, Policy and the Family 327; Ammaturo, FIntersexuality and the “right to bodily integrity”; critical reflections on female genital cutting, circumcision, and intersex “normalizing surgeries” in Europe’ (2016) 25 Social and Legal Studies 591.

85 See nn 42–45 above.

86 Respondent 11.

87 See eg Karkazis, K Fixing Sex: Intersex, Medical Authority and Lived Experience (London: Duke University Press, 2008); Davis, above n 2.

88 GIGESC, s 4 allows individuals to change official records of their gender without requiring any medical evidence. For a critique of the ways in which self-determination of gender can be implemented see C. Dietz (forthcoming) ‘Governing Legal Embodiment’.

89 GIGESC, s 4 allows individuals to request change in first name and recorded gender to reflect self-determined gender. No medical evidence is necessary. Section 10(3) amends Art 83B of the Maltese Criminal Code to include offences motivated on the basis of gender expression and sex characteristics. GIGESC, s 14 prohibits discrimination on the basis of sexual orientation, gender identity, gender expression and sex characteristics’ discrimination.

90 €500–€1000: GIGESC, s 11(3).

91 See eg Jones et al, above n 52. See also Roen, K“But we have to do something”: surgical “correction” of atypical genitalia’ (2008) 14 Body and Society 47.

92 It is worth returning here to the potential ramifications on these recommendations of a lack of participants from the global south. Our participants all came from states that are ‘welfarist’ and relatively benign (which have strong civil societies, ‘rule of law’ and have moved from legal frameworks based on sexual ‘wrongs’ to ones based on sexual rights). Our recommendations are thus based on the assumption of substantial state capacity, which may thus limit the contexts to which they can be applied.

93 Fox and Thomson, above n 84; Grabham, above n 84; Chau and Herring, above n 84; Ammaturo, above n 84.

94 For example, removal of testes is often based on the likelihood of them becoming cancerous but the statistics highlight that these chances are less than the rates for breast cancer. By such reasoning all breast buds should be removed before puberty in order to prevent cancer. These arguments are not, however, mobilised against breast cancer and highlight the ways in which statistics and the power/knowledge of the medical profession are used against intersex embodied persons and their families.

95 While these developments could take place through changes in healthcare policy rather than law, our respondents remain largely mistrustful of the medical profession. Moreover, 30 years of patient advocacy work has yet to lead to medical reform in this area.

96 Births and Deaths Registration Act 1953.

97 Chile has also prohibited these surgeries.

This project was made possible by funding from the Socio-Legal Studies Association small grants scheme and the generosity and vision of our participants. We would also like to thank Anne Barlow, Neil Cobb, Georgiann Davis, Sarah Devanney, Chris Dietz, Sam Lewis, Michael Thomson and Julie Wallbank for their insightful comments on an earlier version of this paper. All mistakes remain our own.

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