JURIST Guest Columnist Arvind Narrain of ARC International discusses the issues with assigning a gender to intersex born children…
International recognition of sexual and gender diversity has grown from the protection of sexual orientation (Toonen v Australia) to gender identity (Resolution of the Human Rights Council in 2011) to an emerging recognition of intersex status.
In the 30th Session of the Human Rights Council, the UN High Commissioner for Human Rights—in the course of a passionate speech which also outlined the serious challenges faced by the world in the war in Syria as well as the situation in Palestine, Sri Lanka, Eritrea, among others—chose to highlight the rights violations perpetrated on grounds of intersex status.
As the High Commissioner put it,
Far too few of us are aware of the specific human rights violations faced by millions of intersex [emphasis added] people. Because their bodies do not comply with typical definitions of male or female, intersex children and adults are frequently subjected to forced sterilization and other unnecessary and irreversible surgery, and suffer discrimination in schools, workplaces and other settings.
The office of the High Commissioner for Human Rights organized a specific two day expert meeting on ending human rights violations against intersex people, thereby unequivocally asserting that intersex issues have its own specificity and are not just an add on to LGBT issues.
Intersex is an umbrella term including people with variations in sex characteristics, rather than a type per se. While variations of sex characteristics are natural, human cultures treat this natural diversity as a problem. Within human society, this natural diversity of sex characteristics is forced into the gender binary of male and female. It is this imperative of human society, to treat sexual diversity as a problem, which becomes the root cause of the great suffering imposed by society on those whose sex characteristics do not conform to rigid notions of male and female.
Those who fall outside of the binary of male and female are classified within the International Classification of Diseases (ICD) as suffering from a form of pathology. Once the person is classified as suffering from pathology, then the route to medical intervention is opened up. The key problem faced in countries around the world is that doctors tell parents of children with diverse sex characteristics that their children require surgery so that they can fit into a specific sex. Often, the parents have too little knowledge and information about whether the surgery is a medical necessity. Parents are convinced that the surgery is required for medical as well as “psychosocial reasons.” Parents often believe that doctors know best and end up consenting to a surgery, which is often medically unnecessary.
Even if surgery is not a medical necessity doctors still justify it as a psychosocial problem. However, this has been exposed by intersex activists as being nothing more than social discomfort with the lack of fixity of gender. Intersex activists make the point, that to subject children to genital mutilation— which the UN Special Rapporteur on Torture [PDF] considers a form of torture—so that society is not discomfited, is an unconscionable suffering, which is inflicted on children born with the intersex condition.
As emerging documentation has shown, this surgery has long term impacts on the child. One intersex person described the implications of surgery [PDF],
Result[s] in physical and psychological damage, such as hot flashes, depression, sleeping disorders, the disappearance of my sexuality and my reproductive capacity……The male genitalia surgically reconstructed has caused irreversible damage such as chronic urinary infections, disorders of urination, structures and scarring. These interventions have made me lose all my innate feeling of belonging to a sex and all sexual behavior.
Studies have also shown that the sex assigned at birth by the doctor can often times be wrong, with the person subjected to surgery, being assigned a sex which is not in accordance with the person’s internal sense of gender.
Intersex activists have equated genital surgery to a form of genital mutilation, which is deeply invasive and destructive of bodily and psychological integrity.
Given all the pain and trauma that surgery causes, the question is why is it still so prevalent? The answer has partly to do with the fact that the medical profession, with its codes of knowledge, still chooses to see intersex variation as pathology and hence treatment becomes the first option. It has also to do with the deep-rooted social imperative of a fixed gender in society and culture.
The solution, which intersex activists have been advocating is a law on the lines of the pioneering Maltese legislation, which unequivocally opposes medically unnecessary surgery and protects the right to bodily integrity and physical autonomy. This law prohibits sex assignment treatment and/or surgical intervention on the sex characteristics of a minor when treatment and/or intervention can be deferred until the person to be treated can provide informed consent.
The point the Maltese legislation is making is that the child is the best person best placed to make the decision on surgical intervention once she/he can is old enough and mature enough to make an informed decision. It unequivocally asserts that substituted decision making by parents and doctors is not an option when it comes to medically unnecessary surgery. The Maltese law privileges the right of the child to participate in a decision, which affects him or her (Article 12 of the Convention on Rights of the Child) over the right of parents and medical professionals to decide what is in the best interest of the child (Article 3 of the CRC). It is the problematic understanding of “best interest” as determined by parents which is bypassed by the Maltese legislation which rightly gives weight to the right of the child to decide matters pertaining to his or her bodily integrity.
When it comes to the question of prohibiting genital mutilation performed on intersex children, the world has a long way to go. The question of intersex mutilation is not even acknowledged as a rights violation in almost all parts of the world.
While genital mutilation and the deep violation of bodily integrity should be legislatively prohibited around the world and the medical codes which classify intersex variation as a form of disorder or pathology should be changed, that by itself is not enough. Fundamentally, the cultural imagination of bodily diversity needs to change and society and culture needs to accept that sexual variation by itself is not a problem.
However a future free of discrimination on grounds of intersex status cannot emerge, if the injustices of the past are not fully redressed. The issue of what has been done to intersex infants around the world is one of which raises questions of truth, justice, reparation and guarantees of non-recurrence.
The violence suffered by intersex persons is shrouded in shame, silence and secrecy. The courageous work of intersex activists is beginning to break the silence. However this issue is yet to find a proper place in human rights activism and LGBT activism.
The first step in the struggle for justice is the acknowledgement that an enormous violation has been perpetrated and continues to be perpetrated on those born with an intersex condition. The medical profession has yet to acknowledge that a great wrong has been done and continues to be done.
It is in this context that there is a need for a commission of inquiry on the lines of the Argentinian Commission on the Disappearance of Persons. The Argentinian Commission produced a famous report, Nunca Más, which established the truth of what had happened to those the regime perceived as opponents. By documenting the crimes committed by the military junta on the Argentinian people, Nunca Más built an incontrovertible public archive and memorialized what had happened. A crucial part of remembering was the injunction that these horrors should never be perpetrated again as the evocative title of the report indicates—Nunca Más, translating as “Never Again.”
The global struggle of the intersex community for justice is in its infancy. What we need is a similar commission of inquiry which establishes in incontrovertible terms, the horror, pain, torture and suffering inflicted on intersex children around the world—all in the name of preserving the two gender system. Documenting the horrors should open up the question of justice, which has three key components: acknowledgement, reparation and the promise of non-recurrence.
The courageous work of intersex activists has brought this struggle global attention. It is up to us all to ensure that this struggle for justice is not forgotten.
Arvind Narrain is the Geneva Director of ARC International which works on international advocacy of LGBTI issues.
Suggested citation: Arvind Narrain, The Right Not To Be Mutilated: Intersex People and The Quest For Justice, JURIST – Professional Commentary, Oct. 14, 2015, http://jurist.org/hotline/2015/10/arvind-narrain-intersex-justice.php
This article was prepared for publication by Marisa Rodrigues, a Staff Editor for JURIST Commentary. Please direct any questions or comments to her at