Eliminating Harmful Practices against and Promoting Human Rights Protection of Intersex People

Eliminating Harmful Practices against and Promoting Human Rights Protection of Intersex People – Human Rights Standards and Good Practice

On September 12th, the Equal Rights Coalition held a webinar titled “Eliminating Harmful Practices against and Promoting Human Rights Protection of Intersex People – Human Rights Standards and Good Practices”, as part of the programmatic agenda of the ERC’s National Laws and Policies Thematic Group. This event was organized in partnership with LSVD, in their role as the ERC’s current civil society co-chairs, as well as with the United Nations’ Office of the High Commissioner for Human Rights, and Intersex Human Rights Australia. 

This webinar aimed to engage representatives from national line ministries from ERC countries with relevant responsibilities for legislative and policy making in relation to the rights of intersex people. In addition to delegates from ERC member states, the webinar also brought together representatives from intersex civil society, national human rights commissions, and multilateral organizations, who enriched the conversation and provided insightful advice and expertise for all attendees. 

Furthermore, the webinar also featured case studies from a handful of countries that have successfully passed measures to outlaw harmful, unnecessary, and non consensual medical procedures and treatments on intersex people, particularly children and babies. By organizing this webinar, we sought to create a government-centered space of learning, discussion, and cooperation in order to explore good practices and success stories to safeguard the bodily integrity and autonomy of intersex individuals.

It is vital to note that upholding intersex rights and promoting protections on the basis of sex characteristics are some of the main commitments of the Equal Rights Coalition, as outlined in the ERC’s Strategic Plan 2021-2026. Indeed, Strategic Objective 2 outlines the Coalition’s determination to end violence and discrimination based on SOGIESC (sexual orientation, gender identity and expression, and sex characteristics). The event sought to fulfill this particular mission by fostering a space where experts on the subject matter and representatives from ERC Member States could learn from each other about the best ways to put an end to these systemic patterns of violence, and adequately provide remedy for victims of these practices.

The list of speakers included, in order of appearance:

• Dr. Tlaleng Mofokeng (United Nations’ Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health), 
• Dr. (Ina-)Marie Blomeyer (Head of Department for Queer Politics, Sexual and Gender Diversity at the German Federal Ministry of Family Affairs, Senior Citizens, Women and Youth, on behalf of the German government in their role as ERC co-chairs for the period 2022-2024),
• Mauro Cabral Grinspan (Senior Officer for Gender Justice and Equity at the Global Philanthropy Project),
• Dr. Kári Hólmar Ragnarsson (on behalf of the Department of Equality and Human Rights at the Officer of the Prime Minister of Iceland), 
• Dr. Rosalind Croucher (President of the Australian Human Rights Commission), 
• Morgan Carpenter (Executive Director at Intersex Human Rights Australia), and 
• Crystal Hendricks as moderator (Intersex Program Officer at Iranti, Chair of ILGA World’s Intersex Steering Committee).

In addition, the webinar also featured case studies and interventions from the United States, Spain, Malta, Greece, and Argentina. 

Crystal Hendricks opened the event in her role as moderator, emphasizing the nature of the webinar as an open forum for mutual cooperation and collaboration on the topic of intersex rights. The first speaker, Dr. Tlaleng Mofokeng, highlighted the persistent stigma and misinformation regarding variations in sex characteristics in the medical field, which inevitably inflicts damage and trauma on intersex individuals (mainly children and babies) and perpetuates the lack of adequate, appropriate, and respectful care towards this population. In closing, she reiterated the power of “trustful partnerships between policymakers responsible for the health sector and civil society actors, including non-governmental organizations, academia and professional associations,” which, in her view, are the fundamental pillars of efficient healthcare systems and key to the full realization of the right to health. 

Representing the German government in their capacity as ERC co-chairs for the period 2022-2024, Dr. Marie Blomeyer spoke of the ERC’s National Laws and Policies Thematic Group as one of the only few forums where governments can come together to learn from each other and push for progress in relation to intersex people. In this regard, she remarked that states should prioritize outlawing harmful and non-consensual practices against intersex individuals, as human rights bodies have laid the groundwork for recognizing that such surgeries, therapies, and treatments constitute serious violations of human rights. 

Following Dr. Blomeyer, Mauro Cabral Grinspan gave examples of legal and policy reform on the subject of intersex rights in different countries. In his view, the success stories from the passing of legal protections against harmful medical procedures in several jurisdictions are key evidence that advancing the human rights of intersex people is an achievable goal at different levels. However, he advised that this must be done in close consultation with experts from the intersex community in all stages of the process, in order to avoid oversights and to properly address the need of intersex individuals of different ages and variations in sex characteristics. 

Dr. Kári Hólmar Ragnarsson also emphasized the value of close collaboration with intersex civil society in the development of laws and policies as part of his intervention. Speaking on behalf of the Icelandic government, Dr. Ragnarsson discussed some of the lessons learned throughout the consultative and legislative process that accompanied the 2020 amendments to the Act on Gender Autonomy. In his intervention, he highlighted the importance of adopting a human rights based approach to the development of public policy on this subject matter, as informed by recommendations from international human rights bodies as a common ground to frame consultations on the topic of intersex rights. 

The last speaker in this round, Dr. Rosalind Croucher, shared remarks from her experience leading a national human rights institution advancing protection of intersex people. Dr. Croucher remarked some of the recommendations contained within the Australian Human Rights Commission most recent in their report on the topic, titled ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics’. The main recommendation stemming from this three-year project is that medical interventions modifying sex characteristics of children without personal consent, may only occur in circumstances of medical necessity: (1) where required urgently to avoid serious harm; (2) the risk of harm cannot be mitigated in another less intrusive way; and intervention cannot be further delayed; and (3) the risk of harm outweighs the significant limitation on human rights that is occasioned by medical intervention without personal consent. Importantly, Dr. Croucher emphasized the recommendation that medical interventions taking place other than through the mechanisms present in the aforementioned report should be prohibited and criminalised, an important step in ensuring there is accountability with regards to the performance of these procedures. 

After the panel round, the webinar also featured insightful interventions from representatives of key ERC Member States where there has been progress on the outlawing of harmful, non-consensual medical procedures against intersex individuals. From the United States Department of State we learned of the commitment from the Biden administration to uphold intersex rights at the federal level, a vital assurance given the wave of anti-transgender legislation –several of which including excerpts that mandate surgeries on intersex children– at the state level in the United States. Afterwards, a delegate from the Spanish Ministry of Foreign Affairs gave an overview of the 2023 ‘Law for the real and effective equality of trans persons and for the guarantee of the rights of LGTBI persons,’ which bans the performance of non-consensual and medically unnecessary surgeries on children with variations of sex characteristics under 12 years old, and actively seeks the informed consent of children between 12 and 16 years of age. 

We also learned key insights about the process of banning intersex genital mutilation in minors in Malta from the SOGIESC Unit at the Human Rights Directorate of the Ministry for Home Affairs, Security, Reforms and Equality. In their intervention, they highlighted the role of intersex civil society in pushing for adequate and appropriate standards of care and justice for people with variations in sex characteristics, leading to the eventual passing of the world’s first law banning harmful medical procedures against these individuals at the national level in 2015. Similarly, a representative from the Human Rights and Gender Directorate at the Greek Ministry of Foreign Affairs also shared some of the lessons learned in relation to the protection of intersex people in Greece, and the passing in 2022 of the ‘Medically Assisted Reproduction Reforms Act’, which bans medical interventions and hormonal treatments and surgeries that aim to modify the sex characteristics of intersex minors under the age of 15, without their free and informed consent. Lastly, we had the opportunity to learn more about the ongoing effort to codify legal protections for intersex individuals in Argentina from a Member of the Argentine National Congress, who offered a chronology of this process and outlined some of the challenges that remain for the meaningful inclusion of intersex rights within legal provisions in the country. 

After commenting on the dire state of funding for intersex movements and civil society worldwide, Morgan Carpenter closed the webinar by summarizing the contributions of all panelists and offering some remarks and observations of his own as a bioethicist. In his view, the key goal of the intersex movement is to guarantee the bodily and personal autonomy and integrity of intersex individuals, giving them (and everyone at large) the ability to express themselves in their own way, all while minimizing actions that stigmatize them through medical intervention or through new markers or classifications before they are able to express their own views about themselves. In closing, he emphasized that the need to legislate on the subject matter is well understood based on recommendations from international human rights bodies and national human rights and ethics commissions, as well as from case studies from countries and jurisdictions in different regions of the world. According to him, this inevitably poses implications for the Equal Rights Coalition, and the way that ERC Member States engage in multilateral dialogue on the topic of intersex rights. 

As civil society co-chairs of the Equal Rights Coalition, LSVD is committed to advancing the rights and freedoms of intersex people worldwide, advocating for legal protections, reparations, and justice for these individuals alongside the other co-chairs, Fundacion Arcoiris (civil society) and the Governments of Mexico and Germany.

Summary by Doug A. Graffeo (they/them), ERC Officer 2022-2024 at LSVD.

Category National Laws And Policies, English, 2023