1. The intersex condition- Part (a) Philosophy of Law

2. Definition “Intersex” is a general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male. For example, a person might be born appearing to be female on the outside, but having mostly male-typical anatomy on the inside.

3. True Hermaphroditism Presence in an individual of both ovaric tissue and testicular tissue and with a gential apparatus that can present male and female structures to different extents depending on the predominant tissue. Pseudohermaphroditism condition in which an organism is born with primary sex characteristics of one sex but develops the secondary sex characteristics of another

4. Intersex topic, leaving behind us the aspects concerning transexualism 2 different phenomena, even though share common aspects on a socio-political level, but pose the jurist different issues

5. Transexuality questions the rules of attribution of the individual to a determined sex withiut affecting the binary classification M and F known to all legal orders and that is at the basis of the same identification of the individual as member of the society and as holder of rights and duties.

6. Intersexuality different topic and raises different issues MEDICALIZATION Recent practice considering the term herrmaphroditism enterded the clinical language at the beginning of the 19° Century and only in the 20° Century clinical protocols have been introduced in order to regulate surgical sex reassignment in new borns with ambiguos genitalia

7. intersex Crucial topic Debate is centered on the surgical reassignment of individuals at an early age. Problem is more complex intersex condition questions same structure of the legal order, claiming to go beyond the binary classification M F aiming to create a Intersex category or third gender

8. International legal instruments 2013- Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment 77. Children who are born with atypical sex characteristics are often subject to irreversible sex assignment, involuntary sterilization, involuntary genital normalizing surgery, performed without their informed consent, or that of their parents, “in an attempt to fix their sex”, leaving them with permanent, irreversible infertility and causing severe mental suffering.

9. 88. The Special Rapporteur calls upon all States to repeal any law allowing intrusive and irreversible treatments, including forced genital-normalizing surgery, involuntary sterilization, unethical experimentation, medical display, “reparative therapies” or “conversion therapies”, when enforced or administered without the free and informed consent of the person concerned.

10. important statement in direction of recognition/protection of vulnerability of intersex individuals. But it does not address the issue of legal recognition of a new gender identity

11. GUIDELIES TO PROMOTE AD PROTECT THE ENJOYMENT OF ALL HUMAN RIGHTS BY LESBIAN, GAY, BISEXUAL,TRASGEDER AD ITERSEX (LGBTI) PERSONS FOREIGN AFFAIRS Council meeting Luxembourg, 24 June 2013 The term intersex covers bodily variations in regard to culturally established standards of maleness and femaleness, including variations at the level of chromosomes, gonads and genitals. the definition, intentionally broad, goes far beyond the notion of hermaphroditism and takes as a benchmark not the morphology of the genital organs but cultural standards related to masculinity and femininity. no mention is made to means of protection and promotion of a third gender or neutral gender

12. National legislations Rare cases of Countries that have adopted specific legislations and public policies on intersex people Colombia (leading case) Germany the

13. Colombia Decision SU-377 1999 the Colombian Constitutional Court ruled that it could not accept a mother’s consent on behalf of her eight-year-old intersex child for genital reconstruction surgery, part of the standard treatment regimen for intersex children in Colombia The Court came to its decision after consulting Colombian and international experts and evaluating their contributions in the light of the Colombian Constitution and international human rights treaties There were two competing schools of thought:

14. Those advocating ‘surgery’ primarily doctors and academics urged surgery as early as possible in the convinction that gender identity was formed within the first two years; genital ambiguity could be traumatic and frustrating for both the parents and the child that might have serious problems adjusting to ambiguous gender identity, and could suffer rejection by peers and parents

15. Those in favour of intersex individual consent minority of doctors and medical academics and civil society organisations like the Intersex Society of North America (ISNA). They argued that genital-conforming surgery, which was invasive, irreversible, and painful, impacted individual autonomy.

16. Court’s decision Consent The Court required the legal and medical communities to establish a new category of consent, "qualified, persistent informed consent“ intended to force parental decisions to take into account only the child's interest. The Judges held that parents may consent to surgery only if they have been given accurate information about the risks and the existence of alternate treatment paradigms which reject early surgery. Furthermore, the consent must be in written form, and must be given on more than one occasion, over an extended period of time, so that the parents have time to really understand their child's condition and the ramifications of alternate treatment paradigms.

17. For children over five, parents cannot consent, because the child has achieved an autonomy that must be respected, and because the child has already developed a gender identity, which reduces the urgency of a decision as well as any potential benefits of surgery. In the case of the two year old, the Judges found the parents' consent invalid because it was not a "qualified and persistent informed consent"(Sentencia T-551/99 Bogota, Aug 2, 1999). The consent of the parents of the eight year old was likewise invalid because the child is too old for a surrogate to consent on her behalf (Sentencia SU- 337/99, Bogota, May 12,1999).

18. Germany Cologne District Court Case Deutsche Ethikrat Opinion on Intersexuality 1/2012-drawn up in response to the Federal Government’s instruction to the German Ethics Council to examine the situation of intersexed people;

19. The German Ethics Council recommendations: Medical and psychological counselling for those affected with DSD and their parents, as well as the diagnosis and treatment of people with DSD, should be provided only at specialized interdisciplinary centres. Irreversible medical sex assignment measures in people with DSD whose sex is ambiguous constitute an interference with the rights to physical integrity, to the preservation of sexual and gender identity, to an open future and often also to procreative freedom

20. In the case of a individual affected with DSD who is not yet competent to decide but whose sex is unambiguous…the decision on surgical alignment of the genitals with that sex should always be based on thorough consideration of the medical, psychological and psychosocial advantages and disadvantages of early intervention. The guiding principle here too should be the welfare of the child. In cases of doubt, such operations should not be carried out before the person concerned is competent to decide

21. child’s welfare With regard to identification of what constitutes the child’s welfare (Recommendations 6 and 7), the affected child, even if not yet fully competent to decide, should be informed as early as possible in accordance with the child’s state of development and involved in all decisions on medical measures; the child’s wishes should be taken into account as far as possible. A manifest attitude of refusal on the part of the affected child should also be taken into account.

22. Affected individuals and those with the right to care for them should be given complete information and advice on all treatment options. There should be a statutory requirement for a ruling to be obtained from the Family Court at least in situations where the wishes or declarations of the child concerning a decision on medical measures with potentially irreversible effects on the child’s (future) fertility and/or sexual sensation conflict with those of the persons with the right to care for the child

23. Provision should be made for persons whose sex cannot be unambiguously determined to register not only as “female” or “male” but also as “other”. Provision should also be made for individuals’ sex not to be registered until they have decided for themselves. If provision exists for a person’s sex to be entered as “other” in the civil register, such a person must also be allowed to enter into a responsible and reliable relationship recognized by the state and in law.

24. German Intersex Law (2013) is a specific intersex legislation that is, as the debate in parliament clearly proves, in fact based on the Recommendations by the German Ethics Council on Intersex in 2012. Even before the law came into force, the registration of civil status could already be postponed, if information or evidence were missing (art.7 Code of civil status Procedure). Entries could be changed later (art.47 Civil Status Act)

25. German Intersex Law PStG § 22 Abs. 3 [new]: '(3) If the child can be assigned to neither the female nor the male sex, then the child has to be entered into the register of births without such a specification.‘ PStG § 22 Abs. 3 [neu]: '(3) Kann das Kind weder dem weiblichen noch dem männlichen Geschlecht zugeordnet werden, so ist der Personenstandsfall ohne eine solche Angabe in das Geburtenregister einzutragen.'

26. Malta passed the "Gender Identity, Gender Expression, and Sex Characteristics Act” 2015 The law eases the process of gender identity change and administrative recognition for transgender and intersex individuals.eases the process But most significantly, the law bans the performance of non-vital gender assignment surgeries on intersex children before they're old enough to consent to the procedure—a global legislative first.bans the performance of non-vital gender assignment surgeries At birth intersex can not be registered https://www.outrightinternational.org/sites/default/files/Final%20%28Commitee%20Stage%29% 20%20- %20Gender%20Identity%20Gender%20Expression%20and%20Sex%20Characteristics%20Act%20 %283%29.pdf https://www.outrightinternational.org/sites/default/files/Final%20%28Commitee%20Stage%29% 20%20- %20Gender%20Identity%20Gender%20Expression%20and%20Sex%20Characteristics%20Act%20 %283%29.pdf

27. The law also allows people to change their gender identity on documents by simply filing an affidavit with a notary, which ends the requirement for surgery in order to legally identify as a gender other than the one assigned at birth. The process of changing one’s gender in the system, under the new bill, won’t take more than 30 days.

28. (4)The person shall not be required to provide proof of a surgical procedure for total or partial genital reassignment, hormonaltherapies or any other psychiatric, psychological or medical treatmentto make use of the right to gender identity. Change of gender identity. 4.(1) It shall be the right of every person who is a Maltese citizen to request the Director to change the recorded gender and, orfirst name and, first name, if the person so wishes to change the firstname, in order to reflect that person’s self determined gender identity.

29. Argentina - Gender Identity Law(2012) Article 2 – Definition. Gender identity is understood as the internal and individual way in which gender is perceived by persons, that can correspond or not to the gender assigned at birth, including the personal experience of the body. This can involve modifying bodily appearance or functions through pharmacological, surgical or other means, provided it is freely chosen. It alsoincludes other expressions of gender such as dress, ways of speaking and gestures.

30. Article 3 – Exercise. All persons can request that the recorded sex be amended, along with the changes in first name and image, whenever they donot agree with the self-perceived gender identity.

31. Article 4 – Requirements. All persons requesting that their recorded sex be amended and their first name and images changed invoking the current law,must comply with the following requirements: 1. Prove that they have reached the minimum age of eighteen (18) years, with the exception established in Article 5 of the current law. 2. To submit to the National Bureau of Vital Statistics or their corresponding district offices, a request stating that they fall under the protection of the current law and requesting the amendment of their birth certificate in the records and a new national identity card, with the same number as the original one. 3. To provide the new first name with which they want to be registered.

32. In no case will it be needed to prove that a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychological or medical treatment has taken place.

33. Claim of register as «third gender», «neuter gender» is unacceptable, such state would hinder the search for the individual’s harmonious sexual identification. Even if there is no evidence of trauma or distress that child could encounter by growing in a ambisexual condition the mere doubt that this could damage a correct existential identification process, compromising even socio-relational development, leads to the duty to guarantee the posssibility of acquiring a sexual determination and an education and a consequent socialization in a male or female sense. Problematic Claim for legitimisation of transgender condition asthe possibility to be and act in the co- presence of male and female elemnts, with partial or no change of physical characteriistics.