European law and intersexed persons
Résumé
Intersex persons are a corporal minority, that is to say a group of individuals who are exposed to discrimination due to their body. Two major kinds of discrimination can be identified. The first concerns their legal identity and the second their bodily integrity. In this contribution we will present those discrimination and explain the reform that should be made, under the European convention of human rights (ECHR), in order to fight against them.
Regarding their legal identity, very often intersex persons — unlike people of the majority group — are not able to be considered as they are. This is linked to the civil status system in Europe that doesn’t offer enough flexibility. For instance quite often only two sex markers are available (male and female) and changing those markers is very difficult and time-consuming. Even if a third marker exist, it is quite rare that public authorities draw all the conclusion from this when applying rule that depend on one sexed identity (for instance rules regarding parity). Those problems do constitute a violation of their right to privacy, right protected by the article 8 of the European convention of human rights.
Also, sexed identity (unfortunately often called gender identity) is not perceived as something private and therefore people are daily ask to give information on it, whereas there is absolutely no need for it. Since, intersex persons are often registered in an identity that doesn’t correspond to them, they encounter many difficulties each time they have to disclose their sexed identity. That is why I’ve been suggesting in the past years to reinforce the protection of sexed identity by forbidding every person (private or public) to force someone else to reveal their sexed identity by for instance subordinating the access to a service to the communication of one sexed identity.
Regarding their bodily integrity, right protected by the article 3 of the ECHR, intersex persons are exposed to some unlawful medical treatments, which constitute, at least in France, a crime of mutilation, since doctors are not able to prove that such acts are justified by a therapeutic necessity. Therefore, legally, all the hospitals where those medical acts are done are criminally liable and the some goes for the national health care system that reimburse the hospitals in which those medical acts are done.
Stopping those unlawful treatments is not enough to respect the right of integrity of intersex persons. I defend the idea that this right also compel the European states to create an ad hoc procedure, in order to compensate the damages done to intersex persons. Indeed tort law is not enough since it implies an individual procedure (only the doctors will be liable whereas the accountability should be collective). Also tort law is now enough since it is quite difficult to go through, legally (prescription law, burden of proof, etc.) and also psychologically if one considers the major psychological cost of such legal actions. That is why I plead that article 3 of the ECHR obliges European states to create a compensation fund, in order to take in charge this mass sanitary disaster, disaster linked to the pathologisation of something that is not a pathology but only the lived expression of the diversity of human species.
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