Filip Rak
Wardyński & Partners, Warsaw
filip.rak@wardynski.com.pl

Fundamental intersex rights are gaining increasing recognition in Europe. Recent legislative acts adopted in Greece, following the Maltese example, demonstrate lawmakers’ growing attention to intersex cases. However, the French Bioethics Law illustrates that progress does not always align with the struggles of the intersex community. In Poland, the Commissioner for Human Rights investigated the scale of intersex human rights infringements.

While the laws of most European countries remain silent on intersex rights, there is a protective standard among the soft measures adopted by the European Union (EU) and the Council of Europe (CoE) institutions. The European Court of Human Rights (ECtHR) is considering the first intersex persons’ cases, even though as yet there is not a landmark judgment which is protective of intersex fundamental rights. Nonetheless, no rights have ever been granted without effort – and it is clear that intersex rights are on a steady rise in Europe.

Universal challenges faced by the intersex community

Intersex people are born with physical sex characteristics (such as sexual anatomy, reproductive organs, hormonal patterns and/or chromosomal patterns) that do not fit typical definitions for male or female bodies. They face multiple challenges in most societies worldwide, including wide forms of unequal treatment in social life due to their sex characteristics and a related lack of legal protection, including anti-discrimination provisions. In some instances, birth certificates for intersex persons are issued erroneously (in discord with their future gender identity). A significant problem lies in gender marker regulations, as well as the absence of quick and simple procedures for legal gender recognition (a problem partially shared with the transgender community).

However, the most serious human rights violations against intersex people are the unnecessary surgical interventions on infant intersex bodies, performed only to make them conform with the perceived ‘norm’. These surgeries, known as intersex genital mutilation (IGM) are often conducted on infants before they reach the age of informed consent. Parents are often pressured by medical professionals to permit the surgery. In some instances, surgery may be postponed until the age of consent, as these variations in sex characteristics do not entail any medical risk and are purely performed for non-medical reasons (eg, bodily conformity with social norms).

The underreported scale of intersex genital mutilations

According to a study published by the EU Agency for Fundamental Rights, the so-called gender ‘normalising’ surgeries are performed on intersex infants and children in at least 21 Member States of the EU.^[1] The exact statistics relating to the number of the so-called ‘sex-normalising’ surgeries on intersex minors are rarely known to the public.

A Polish example can offer some greater insight into the IGM scale. Although Poland does not provide for intersex rights protection, the Polish Commissioner for Human Rights requested for, and analysed, the medical records from the National Health Fund. From these records, 6,808 surgeries were conducted on intersex minors in 2021 from a population of 37 million – this number was lower in 2020 (5,050) but even higher in 2019 (7,303).

Increasing activism of the European institutions

One of the first institutional reports on the situation of intersex people was the 2013 report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. The intersex genital mutilations were classified as inhumane treatment as defined by the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In October 2017, the Parliamentary Assembly of the Council of Europe adopted a resolution on ‘Promoting the human rights of and eliminating discrimination against intersex people’.^[2] Following the CoE resolution, the European Parliament adopted a similar measure: the ‘Resolution of 14 February 2019 on the rights of intersex people’. Both resolutions called for the protection of intersex children, the prohibition of medically non-necessary sex-normalising surgeries and treatments without their informed consent. They advocate for swift legal gender recognition procedures, flexible birth registration laws and respecting the right of intersex children to bodily integrity.

The progressive soft measures adopted by the European Parliament have not been followed by substantive law so far, although the EU has competencies to regulate intersex rights in EU Member States. A potential for change lies with, for example, the EU anti-discrimination framework, that could be amended to include ‘sex characteristics’ as a protected ground of discrimination (in line with European Parliament recommendations).

Recent European Court of Human Rights judgments

The 2017 Council of Europe recommendations are slowly gaining recognition in the legal community of European countries and were particularly identified at the forum of the European Court of Human Rights. Although hardly established case law, the first two cases have recently been considered in Strasbourg.

In the decision of M v France, the Court recognised the problem of intersex genital mutilation – feminising medical procedures carried out during the applicant’s childhood (before the age of informed consent). The Court indicated that medical procedures carried out in the absence of any therapeutic necessity and without the informed consent of the person concerned would be, in principle, liable to constitute ill-treatment within the meaning of Article 3 (prohibition of inhumane treatment). In this particular case, however, the application was rejected on formal grounds, due to a lack of exhaustion of domestic remedies. The intersex community will therefore still have to wait for a judgment touching upon intersex genital mutilation – hopefully, in line with the reasoning expressed as obiter dictum in M v France.

In the most recent case of Y v France, the ECtHR addressed the issue of a third/neutral gender to be registered on a birth certificate. The ECtHR was challenged with a legal but also a social and systemic problem: the applicant (an intersex person) applied to conclude that a refusal to replace their present male gender marker by the term ‘neutral’ or ‘intersex’ by the French authorities infringed their right to privacy (Article 8 of the European Convention on Human Rights (ECHR)). The Court did not agree with the applicant. The Court indicated that CoE countries have a ‘wide margin of appreciation’ in this matter, notwithstanding the ‘difficult situation in which they [intersex persons] found themselves in terms of the right to respect for private life’.

Legislative measures adopted by some European countries

Maltese 2015 law on the recognition of sex characteristics

Maltese lawmakers will be remembered as the first to adopt a prohibition of sex-normalising surgeries and granting progressive intersex rights. In April 2015, the Act for the recognition and registration of the gender of a person and to regulate the effects of such a change, as well as the recognition and protection of the sex characteristics of a person entered into force. The Act is based on the fundamental right to bodily integrity and the physical autonomy of all persons’ right to respect one’s gender identity and freedom of personal development in accordance with gender identity and equal treatment.

The Maltese law defines ‘sex characteristics’ as the chromosomal, gonadal and anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and/or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and/or structure. Accordingly, the law prohibits any forms of discrimination based on sex characteristics.

The central stipulation of the Act is a prohibition of sex-normalising surgeries: Article 14(1) of the Act says ‘it shall be unlawful for medical practitioners or other professionals to conduct any sex assignment treatment and/or surgical intervention on the sex characteristics of a minor which treatment and/or intervention can be deferred until the person to be treated can provide informed consent’.

In special cases, treatment can proceed with the agreement of the Interdisciplinary Team and the minor’s guardians when the minor cannot consent. However, any medical intervention driven by social factors without the minor’s consent is considered to be a violation of law.

French 2019 Bioethics Law

In France, the intersex persons’ situation was addressed by an amendment to the French Bioethics Law (amendment 2334). Unfortunately, the solutions adopted by the French National Assembly failed to satisfy the need of fully protecting intersex children and were criticised by the international intersex community as cementing the unsatisfying status quo.^[3]

The law did not forbid, in principle, conducting surgeries but merely improved the supervision measures within the healthcare system. It is mandatory to organise interdisciplinary teams who are obligated to consult with the parents and the child prior to making a decision on whether to conduct the intervention or not. The law requires taking into account the child’s consent regarding the intervention—obviously, such a stipulation would be, in many cases, inapplicable due to the child’s stage of development.

Additionally, the law provided for a three month period of delay with issuing a birth certificate in cases of ambiguous sex characteristics. This period of time was criticised as being far too short in many cases; after three months, gender needs to be assigned even if it is still not determined. In any case, the law does not take into consideration the possibility of non-binary identification.

Greek 2022 ban on intersex genital mutilations

The intersex community celebrated the Greek Parliament’s legislation passed on 19 July 2022, which followed the Maltese example. The intersex rights issues were included in the Medically Assisted Reproduction Reforms Act, in a dedicated intersection entitled ‘Change of Sex Characteristics of Intersex Minors’. The legislation prohibits medical interventions, including hormonal treatments and surgeries, intended to alter the sex characteristics of intersex minors under 15 years old without their voluntary and informed consent.

The Greek law leaves a way to perform the surgery on intersex minors where it cannot be postponed until the age of 15 (eg, when the sex variation endangers the life or health of the minor). This intervention is only permitted with the court’s approval, following a procedure requiring the court to obtain the interdisciplinary committee’s expert opinion and to hear from the minor in question (if possible). Breaking these regulations entails criminal sanctions.

Concluding remarks – the underrepresented ‘I’

Although the achievements made in Malta and Greece mark great success for intersex activists, the journey to widely recognise intersex rights still seems to be at the beginning. On top of the lack of sufficient data regarding the scale of rights infringements, the absence of legislative interventions at EU level, the restraint of the ECtHR and the limited number of countries where protective measures have been adopted—the question also pertains to visibility. Importantly, it is often the case that LGBTQI+ rights organisations, despite using the term, do not actively pursue the intersex rights agenda. One may pose the question: why mix all the ‘letters’ under one term? For many intersex activists, the question is often not only about individuality (does creating an umbrella term blur the meaning of its components?) but also about the effectiveness of the fight for awareness and the pursuit of intersex activists’ goals.

While the answer requires a different discussion, one thing is certain: to push the journey forward faster, one can rightfully call for the wider recognition of intersex rights in the international human rights community and beyond.