International Developments in Intersex Rights Legislation

For decades, intersex individuals have undergone surgeries that permanently alter their bodies without their informed consent.[1] An estimated 1.7% of all infants are born with intersex characteristics.[2] An intersex person is someone born with variations in their sex traits, usually meaning they have differences in their reproductive anatomy (e.g., variability in hormones, genitalia, or sex chromosomes).[3] These differences are often discovered by attending physicians at the birth of an intersex child, or become evident during the child’s early years.[4] Unfortunately, due to stigmas about sex differences in the medical profession, doctors worldwide often perform surgeries altering the intersex characteristics of children.[5] Typically, surgeries are performed to conform intersex newborns to the traditional male or female gender binary chosen by their parents in consultation with a doctor.[6] Moreover, because children in many countries cannot legally consent to most medical treatment, doctors usually must obtain the consent of the child’s parent(s) before performing such surgeries.[7]

Due to legal deference in many jurisdictions, parents are considered best equipped to make important medical decisions in the best interest of their child.[8] Moreover, while most surgeries are performed during infancy, intersex characteristics typically do not require medical treatment.[9] Furthermore, the results of such surgeries are usually irreversible.[10] Thus, intersex people often must live with the consequences of a surgery they did not choose to undergo and bodies that do not match their gender identities.[11] So, why are these life-altering surgeries typically performed without an intersex child’s consent?

In recent years, several countries have introduced legislation that would delay surgeries on intersex children until they reach the age of consent. Legislators in Malta and Uruguay have passed laws banning non-emergent surgeries on intersex children, while Albania and Germany developed similar legislation in 2020 and 2021 respectively.[12] Additionally, in 2021 an Australian legislative commission recommended that surgeries occur only when the “prior, informed, personal consent of the person concerned” is obtained.[13] Moreover, the commission found that any exceptions should be authorized by an independent medical panel.[14] The commission based their recommendations on hearings where legal advocates discussed the negative consequences of surgeries on the recipient’s physical and mental health.[15] As one intersex advocate argued, “We need laws that recogni[z]e our right to decide what happens to our own bodies.”[16] This recognition is the motivating factor behind most international legislation delaying surgeries on intersex children.[17] And, because many countries require that patients provide their informed consent before undergoing medical treatment, these laws serve to protect the basic medical rights of intersex people.[18]

To obtain someone’s informed consent, a patient should be able to assess their condition, the reason for a specific treatment, the availability of other procedures, and the risks and benefits associated with all options.[19] Thus, intersex individuals require accurate, and non-bias, information to allow them to make informed decisions about their own health care. Accordingly, legislation should also address stigmas regarding surgeries for intersex people within the medical profession. This can be accomplished through amendments to public health laws and requirements for education amongst the respective boards that license physicians. Further, the findings of the Australian commission support this cause.[20] Their report identified issues with “current clinical practice, including lack of evidence” to support the need for treatment, and “a lack of attention to concerns raised by psychological and psychiatric professionals” about the negative effects of non-consensual surgeries.[21] Therefore, as legislative progress continues, lawmakers should also review how the informed consent of intersex people will be obtained moving forward. Neglecting to do so ignores the medical bias that has harmed many intersex people for far too long. Intersex individuals deserve to make decisions about their bodies not only when they have the capacity to consent, but also when they can access non-bias medical counsel.

Matthew Jackson is a staff member of Fordham International Law Journal Volume XLV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See Melissa Davey, Intersex people undergo surgery when too young to give consent, inquiry told, The Guardian, https://www.theguardian.com/australia-news/2021/oct/18/intersex-people-undergo-surgery-when-too-young-to-give-consent-inquiry-told (last visited January 6, 2022).

[2] See Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality, 45-76 (1st ed. 2000). This percentage may not accurately represent the number of people born with intersex characteristics, largely due to underreporting.

[3] See id.

[4] See id.

[5] See id.

[6] See id. The sex-altering surgeries performed include procedures to create a vagina, reduce a clitoris, and remove testes

[7] See Davey, supra note 1.

[8] See, e.g., Troxel v. Granville, 530 U.S. 57 (2000) (holding that parents have a right to determine the care, custody, and control of their children); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (ruling that the “primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”).

[9] See Davey, supra note 1.

[10] See id.

[11] See id.

[12] Non-emergent surgeries are medical interventions not required to immediately save the life of a child. See Alice Taylor, Albania Approves Protocol to Stop Medical Intervention on Intersex Babies, Exit News, https://exit.al/en/2020/06/27/albania-approves-protocol-to-stop-medical-intervention-on-intersex-babies/ (last visited on January 8, 2022); Tomer Urwics, Prohíben las operaciones de definición de sexo en la niñez, El País, https://www.elpais.com.uy/informacion/prohiben-operaciones-definicion-sexo-ninez.html (last visited on January 8, 2022); Gender Identity, Gender Expression and Sex Characteristics Act (Act No. 11/2015) (Malta); Gesetz zum Schutz von Kindern mit Varianten der Geschlechtsentwicklung, repromulagated May 5, 2021 (Ger.).

[13] See Davey, supra note 1.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See id. See also Taylor, supra note 12.

[19] Am. Med. Ass’n. Code of Med. Ethics Opinion 2.1.1. (2021).

[20] See Davey, supra note 1.

[21] See id.