Intersexuality and the ‘Right to Bodily Integrity’

Abstract

In 2013, the Parliamentary Assembly of the Council of Europe passed a resolution on ‘children’s right to bodily integrity’. In the resolution, concerns were expressed for about practices carried out on children without their formal consent. Among these practices, female genital cutting (FGC), non-medical circumcision and ‘normalizing’ surgeries for intersex children were listed among these practices. As a result of the adoption of the resolution elicited, strong reactions, ensued especially from Jewish and Muslim communities, which widely practices male circumcision. Simultaneously, however, intersex activists welcomed the resolution, as it gave legitimacy to their long-standing call to establish a common framework for the evaluation of all invasive medical and surgical practices on children carried out without their informed consent (Preves, 2005). This article uses an examination of the resolution to reflect on both the emerging concept of the ‘right to bodily integrity’ and on current developments in the field of intersex human rights in Europe. Firstly, the article considers the political process leading to the adoption of the resolution, in order to understand and appraise the limitations of the choice to use the framework of the right to bodily integrity to jointly address jointly issues of FGC, circumcision and intersex ‘normalizing surgeries’ jointly, without fully engaging with the cultural, religious and social factors underpinning each of these phenomena. Following this discussion, the article will further analyses the specific case of intersex rights, particularly in relation to the difficult balance between a medical and the juridical approach to intersexuality. This reflection will ultimately be useful to assess the role of the resolution in helping to subtract intersexuality from the sole gaze of medical practitioners at the advantage of a human rights approach which may best protect the interests of intersex children and adults.

Keywords

Bodily integrity council of Europe circumcision female genital cutting intersexuality

Introduction

At a global level, human rights discourses on intersex children and adults remain in a marginal position. Only a handful of countries, such as Colombia, Australia, Germany (Greenberg, 2012: 107) and Malta, have to date actively dealt with the legal status and entitlements of intersex children and persons. Yet in Europe, there seems to be a momentum behind advocacy for the rights of intersex children and adults, represented by the growing interest on the part of both the European Union (Agius and Tobler, 2011) and the Council of Europe (CoE) (Schneider, 2013). Both institutions have started to address the existence of concerns for intersex children and adults from a human rights perspective and, in the future, interesting developments could be anticipated in both the political and legal forums.

In acknowledging the emergence of human rights discourses on intersexuality in the European context, this article focuses in particular on resolution 1952 (‘The resolution’) adopted by the Parliamentary Assembly of the Council of Europe (PACE) in October 2013, which addresses the broad theme of ‘children’s rights to physical integrity’ and encompasses a broad range of issues such as intersex genital surgeries, female genital cutting (FGC), male (religious) circumcision and cosmetic surgeries performed on children. The resolution is interesting in two respects. Firstly, it contains an attempt to bring the issue of the rights of intersex persons to the fore at the CE, the main continental intergovernmental forum on human rights. As such, it raises important questions concerning the extent to which it can effectively challenge the predominant medical protocol for treating intersex children and contribute to opening up a discussion at the CE about the social construction of sex and gender. Secondly, the resolution does something unprecedented: namely, it resorts to the framework of children’s rights to physical integrity to cluster issues which have traditionally been addressed separately, such as intersex genital surgeries, FGC, male (religious) circumcision and cosmetic surgeries performed on children. In doing so, the resolution indirectly answers the concerns of activists and scholars (Chase, 2006; Ehrenreich and Barr 2005) who have claimed that condemnation of FGC should be matched with equal condemnation of intersex genital surgeries or circumcision in the Western context. This article will suggest that, whilst innovative, the decision to group together these issues within the framework of a ‘right to physical integrity’ adopted in the resolution may not necessarily be free from covert issues of cultural imperialism.

The objective of this article is twofold. Firstly, it seeks to discuss critically the political process leading to the adoption of the resolution in light of the decision to group together FGC, religious circumcision and intersex ‘normalizing surgeries’. In this regard, the article suggests that, beyond the good intentions of those who proposed and voted in favour of the resolution, the complex web of cultural, religious and social factors intervening in the perpetuation of practices such as FGC, circumcision and intersex normalizing surgeries has been left unaddressed by the proponents of the text. In so doing, the resolution not only fails to achieve the goal of opening up new spaces for intercultural or inter-religious dialogue but also relegates the discussion of the implications of the medicalization of intersexuality to the background of a highly political and – almost – ideological discussion on FGC and circumcision.

Secondly, this article uses the resolution as a starting point to reflect further on current developments in the field of the rights of intersex children and adults. In particular, the resolution can be seen as an attempt to move from the current model of ‘medicalization’ of intersexuality to a model of ‘juridification’ of intersexuality. This shift from medicalization to juridification, strongly advocated for by intersex activists, substantially consists of a transfer of power from medical practitioners to legal practitioners to regulate intersexuality. Whilst medical practitioners exercise their authority in deciding what sex should be ‘attributed’ to the intersex infant, legal practitioners are called upon to protect the right of the intersex child and, possibly, help to preserve her/his physical integrity. This transfer of power, however, may be problematic in itself, as it may cast intersex individuals as object of productive powers, according to a Foucauldian perspective, rather than active agents of human rights.

The article is composed of three sections. It begins with a critical analysis of the political process leading to the adoption of the resolution at PACE. This is followed by a discussion on the resolution’s Rapporteur decision of grouping FGC, circumcision and intersex normalizing surgeries under the same concept of the right to bodily integrity. The analysis moves on to consider, more specifically, the resolution as an example of the juridification of intersexuality as opposed to the medicalization of intersexuality and to reflect on the opportunities and limitations that this different approach may entail.

The Resolution of the Pace on Children’s Rights to Physical Integrity

In October 2013, PACE adopted a resolution on Children’s right to physical integrity, which simultaneously addressed the issue of intersex genital surgeries, practices of ‘female genital cutting’ and the circumcision of boys for religious reasons, as well as other cosmetic surgical treatments performed on children. Whilst the resolution is not binding on member states, it signals both emergence of an interest in the issue of intersexuality and an unprecedented attempt to group together issues which, up to that point, had been addressed separately in the various national and international human rights forums. The resolution was the product of the work of the German Member of Parliament (MP) Marlene Rupprecht who, both at PACE and at the German Bundestag,¹ has been active on children’s rights for over 13 years. In this regard, Germany occupies a crucial position, as it has been the first European country explicitly to regulate² the legal status of children born with intersex conditions.³ However, as with the German law (Travis, 2014), the resolution proposed to PACE by Rapporteur Rupprecht is not free from controversial aspects. In fact, unsurprisingly, the conflation of intersex genital surgeries, FGC and religious circumcision of boys in the text of the resolution has sparked a heated debate inside and outside the Assembly, especially in relation to the juxtaposition of religious circumcision⁴ for Jewish and Muslim boys and the issue of FGC (Schuz, 2014). Moreover, whilst the Rapporteur denied that religious circumcision had been equated to FGC⁵ in the text, in its reply to the resolution, the Committee of Ministers (CMs) of the CE pointed out that religious circumcision should not be equated to FGC,⁶ thus highlighting the existence of a conflict between the PACE and the CM.

Before analysing the political process leading to the adoption of the resolution, some preliminary observations will help us to understand better its weaknesses. In drafting the text to be presented to PACE, Rapporteur Rupprecht drew from Article 3 of the United Nations Convention on the Rights of the Child (UNCRC), linking the overarching principle of the ‘best interests of the child’ to the protection and guarantee of the right to physical integrity. This operation, however, is problematic. The notion of the ‘best interests of the child’ continues to be contested on different grounds, including its presumed indeterminacy (Bird, 2005: 74) as well as its subjective (Giordano, 2013: 131) or paternalistic character (Schuz, 2014: 353). In this regard, Ramachandran (2009: 3) has argued that a right to bodily integrity in itself is descriptively and normatively wrong, as the emphasis should be put not so much on the actual bodily integrity of the individual but on the necessity of impeding a monopolistic control over individuals’ bodies. In addition, as DeLaet (2012: 556) has pointed out, no such right to ‘bodily integrity’ has yet been explicitly codified and recognized in international human rights law. Therefore, using the right to bodily integrity as the core principle that enables the regulation and/or proscription of practices such as FGC, religious circumcision and intersex normalizing surgeries can constitute, at the very least, a shaky theoretical basis.

The difficult endeavour of balancing the various implications of the three phenomena is reflected in the text of the resolution. Paragraph 7.5.1 contains a blanket condemnation of FGC:

(…) condemn the most harmful practices, such as female genital mutilation, and pass legislation banning these, thus providing public authorities with the mechanisms to prevent and effectively fight these practices (…)⁷

Paragraph 7.5.2, however, does not condemn religious circumcision as such, but highlights the necessity to:

clearly define the medical, sanitary and other conditions to be ensured for practices which are today widely carried out in certain religious communities, such as the non-medically justified circumcision of young boys⁸

The third paragraph (7.5.3) concerns the issue of intersex genital surgeries:

(…) ensure that no-one is subjected to unnecessary medical or surgical treatment that is cosmetic rather than vital for health during infancy or childhood, guarantee bodily integrity, autonomy and self-determination to persons concerned (…)⁹

At a glance, the paragraph concerning intersex genital surgeries can be said to be a true innovation, specifically because the language employed in the resolution is very close to the language used by intersex activists themselves. In particular, the emphasis on the fact that some surgeries may be ‘cosmetic’ rather than ‘vital’ represents a clear signal against the overwhelming representation of intersexuality as a ‘psycho-social emergency’ (Chase, 2006). Nonetheless, considering the passage on the rights of intersex children in isolation from the rest of the resolution would be a mistake, as the text in its entirety presents many critical issues to be addressed.

The political debate preceding the adoption of the resolution at PACE can help to illustrate further the problems arising from the conflation of issues with very different social, cultural and religious implications. Whilst the resolution passed with 77 MPs in favour, 19 against and 12 in abstention, the parliamentary debate was characterized by an intense polarization. Rapporteur Rupprecht had introduced all the three specific issues as part of the resolution, but the various MPs intervening in the debate had clearly identified their priorities. In fact, the discussion at PACE was almost entirely focused on FGC and the regulation of religious circumcision. The direct result of this imbalance was that the topic of the medicalization of intersexuality was almost completely overshadowed. Of 24 MPs intervening in the discussion¹⁰, only three (Kyrikyades, Clune and Kazakova) incidentally mentioned intersex genital surgeries. Hence, ironically, a resolution that was meant to draw attention to the invisibility of intersex persons ended up reproducing that very invisibility.

The tension during the debate was palpable. Whilst there was widespread consensus about the complete proscription of FGC, some MPs expressed their doubts in relation to the regulation of practices of circumcision. In particular, the Turkish MP Memecan claimed¹¹ that the Rapporteur’s depiction of the practices of circumcision was provocative and dangerous, as they impinged upon the religious freedom of Muslim and Jewish individuals throughout the member states. The various MPs’ statements concerning the ban of FGC, however, were no less vocal. In some interventions, the discourse about the ban on FGC was clearly framed in terms of barbarism versus civilization (Clune, Davies), whilst in others it was presented as an issue of customs versus the law (Kolman, Blondin, Fort). With this premise, the discussion soon became one about the values of culture and civilization, secularism, and freedom of religion, disguised as a discussion about children’s right to ‘physical integrity’. Representatives of countries such as France (Blondin, Fort) or the United Kingdom (Davies) based their intervention almost entirely on FGC, whilst completely overlooking both religious circumcision and intersex genital surgeries. This silence on the regulation of religious circumcision can be seen as particularly striking, as both countries have significant Muslim and Jewish populations.

It could be argued, therefore, that the apparently neutral framework offered by a discussion of children’s right to have their physical integrity respected became heavily politically charged and colonized by various forms of political instrumentalization. This dynamic strongly echoes Minow’s (2002: 252–2) argument in relation to the position of children with regard to contemporary conflicts on cultural differences in Western societies:

(…) children, not women, lie at the heart of questions of cultural clash and accommodation. (…) Reconciling what it takes to equip children as choosers with what it takes to respect parents and communities as child rearers is as hard as any task gets.

Children’s rights may indeed become the battlefield for political struggles at the CoE and trigger problematic – and often ideological – confrontations about cultural, religious or social values. This is also the position defended by Schuz (2014) who has argued, from a Jewish perspective, that Rupprecht’s resolution is inherently flawed because of its prejudicial stance towards religion and religious freedom. Schuz has claimed to hold a neutral stance on the issue, putting forward the necessity of balancing the rights of the child with competing and/or conflicting rights such as the right to religious freedom (Schuz, 2014: 369). Obviously, both Schuz’s and Rupprecht’s motivations can be scrutinized in terms of their dispassionate interest in children’s rights. Nonetheless, the resolution seems to be fraught with unaddressed interrogatives on the balance between competing interests, which concern not only the rights of the minors but also the rights of the parents. In fact, Rupprecht¹² herself, during the debate, asked a quite difficult, and contentious, question: ‘Are all these things we do for cultural, religious or other reasons – other practices – always suitable for children and do they protect the health of our children?’

To illustrate further the difficulty of disentangling partisan (political, religious or social) interests from the guarantee of children’s rights, we can consider the following example. During the discussion at PACE, the Russian MP Kazakova¹³ pointed out how the recently adopted law on the protection of minors – already heavily criticized by the CE because of its punitive measures against the so-called ‘homosexual propaganda’ – was aimed specifically at protecting children’s physical integrity. Kazakova’s conception of what the protection of the physical integrity of children entailed, however, seemed to be different from that held by the majority of CoE’s member states, which do not see homosexuality as inherently threatening the welfare or well-being of minors. Kazakova’s intervention on this point should be read as an attempt to defend Russia’s particular agenda on children rights vis-à-vis presumed ‘external’ influences.

The second problem with the debate was that it clearly created a hierarchy between the various issues in terms of their presumed prominence or importance, with FGC coming first, followed by the regulation of religious circumcision, and with the issue of intersex normalizing surgeries coming last. It could be argued that this was not because the MPs considered the condemnation of the medicalization of intersexuality entirely unproblematic; rather, that the issue of intersex normalizing surgeries did not represent an immediate topic for political confrontation. In fact, MPs were willing to acknowledge – in principle – the need to respect the corporeality of children. However, no one explained to the assembly why medicalization of intersexuality was a threat to children’s well-being.

It could be suggested, moreover, that whilst issues of FGC and circumcision seem to be confined to ‘customs’ or ‘barbaric’ traditions, the issue of intersexuality is inescapable for all the member states of the CE regardless of the religious, ethnic or racial composition of their populations. Therefore, the fundamentally superficial acknowledgement of the importance of debating the widespread practice of surgical intervention on the bodies of intersex children throughout the European continent – and well beyond it – signals the inherent incapability to deal with the deeply entrenched social presumptions about gender that inevitably play a role in the determination of the presumed ‘true sex’ of the intersex infant or child. In a way, whilst it was relatively easily for MPs to point the finger at the cultural or religious practices of ‘others’, it was more difficult for them to address effectively the concrete measures to be undertaken in order to proscribe such medical procedures. During the discussion at PACE, none of the intervening MPs addressed the possible measures that could be adopted to adjust or modify the current model of medical management of intersexuality. At its best, therefore, the inclusion of the issue of intersex normalizing surgeries in the resolution seems a half-hearted attempt to acknowledge the existence of a problem whilst simultaneously avoiding it, for fear that concretely challenging the process of forced attribution of gender to intersex children would open up the debate for a radical transformation of gender categories.

Two questions arise from the critical discussion of the resolution presented above. Firstly, one needs to explore the interplay between the various cultural, religious and political motivations and the necessity of safeguarding the rights of children, particularly in relation to their physical integrity. Secondly, it is also important to ask whether, given the marginal position of the issue of the medicalization of intersexuality during the debate at PACE, the resolution can effectively help to frame intersexuality as a human rights issue rather than a medical one, and what limits this shift of approach would present. The remainder of this article will address these two interrogatives.

The Right to Bodily Integrity: Contextualizing Intersex Genital Surgeries, FGC and (Religious) Circumcision

In 2012, commenting on the German Bundestag’s negative vote on her legal proposal concerning the regulation of circumcision (Beschneidung), Marlene Rupprecht said:

I don’t want Germany to go down in history as the country that has legalised bodily harm against defenceless children because of some passages in the Bible and millenary traditions. The respect of life is our lesson from the Nazi era. (…) God made us perfect. He would not want us to cut away anything.¹⁴

Rupprecht’s statement summarizes very well all the critical points contained in the PACE resolution. On one hand are parental rights, the right to religious freedom, and the respect of cultural traditions. On the other hand, the issue of children’s rights comes to the forefront. The compass principle underlying Rupprecht’s argument is the existence of a right to bodily integrity which could – potentially – overrule any cultural, social or religious justification deployed to impinge on the physical integrity of children. But what is the right to bodily integrity in concrete terms, and why has the decision to cluster together FGC, circumcision and intersex normalizing surgeries in the PACE resolution led to the opening up of a Pandora’s box in the field of children’s rights?

As early as 1998, intersex pioneer activist Cheryl Chase (now Bo Laurent) pointed out the existence of double standards concerning the condemnation of FGC and intersex genital surgeries in Western countries. Whilst the former were deemed to be barbaric, the author argued, the latter continued to be medically justified (Chase, 2006). Joined in this critique by others (Ehrenreich and Barr, 2005; Kessler, 1998), Chase was pointing out the existence of important political (colonialist or neo-imperialist) choices behind Western activists’ efforts to have FGC proscribed without engaging with the issue of intersex genital surgeries. Simultaneously, various scholars (Dekkers, 2009; Fox and Thompson, 2005; Zabus, 2009) started to suggest that the circumcision of young boys, whether motivated by religious reasons or not, should also be scrutinized in conjunction with FGC. The use of the framework of the right to bodily integrity seems to be suitable to address all these issues jointly, as has been the case for the PACE resolution.

Despite the commonalities between intersex genital surgeries, FGC and (religious) circumcision, adopting the framework of the right to bodily integrity in order to proscribe all forms of non-medically necessary surgical interventions on children can be problematic. Aside from the risk of leaving unaddressed conflicts arising in the spheres of cultural or social legitimation of specific practices, the framework of the right to bodily integrity also eschews the fundamental question of whether there can be different interpretations of the notion of ‘integrity’ and ‘wholeness’ of the body depending on cultural, social and legal contexts. In this regard, the PACE resolution seems to acknowledge very superficially these corollary issues, which are crucial in engendering cultural, social or religious change in harmony with respect for human rights. The lack of problematization of the cultural, social and religious factors in the text of the resolution means that it substantially reproduces and disguises racialized and gendered hierarchies according to which legal and social intelligibility is conceded, rather than genuinely putting the issue of children’s rights at the forefront.

The ramifications of the right to bodily integrity in connection to FGC, circumcision and intersex normalizing surgeries are numerous and deserve further attention. As Boyd (2006: 421) and Butler (2004: 21) have argued, the body has a political and public dimension. This, however, implies that it may be difficult for the individual to retain the ‘sole’ ownership of the body, when cultural, social, religious or legal prescriptions and proscriptions intervene in disciplining, modifying or altering its aspect or some of its functions. In light of these limitations concerning one’s control over the body, is it possible to talk about a right to physical integrity in the first place? Notions of bodily integrity may take different forms in different cultural, social, religious or social contexts. Some forms of body modification mediated by these factors, however, are considered more disturbing or controversial than others. As the following paragraphs will show, the existence of FGC and circumcision and intersex normalizing surgeries raise questions as to where boundaries should be drawn when defining the concept of bodily integrity.

Practices of FGC have been the object of long-standing critique on the part of Western feminist scholars and commentators. Increasingly, however, there is a call to understand and contextualize these practices within the cultural context in which they take place, rather than separately from it, with the objective of enabling radical social, cultural and legal change. Aldeeb Abu-Sahlieh (2009), along with DeLaet (2012), has suggested that more than legal change alone is needed to eradicate FGC, particularly in relation to the need to understand the motivations that push parents to subject their daughters to these practices. Similarly, Nnamuchi (2012: 86) has argued that interventions from ‘outsiders’ have usually lacked an acknowledgement of the tight link between these practices and the ‘cultural ethos’ of the various countries, thus failing in their objective of triggering and enabling change. In this regard, some scholars have emphasized the fact that parents usually act out of good intentions, as FGC is believed to make their daughters ‘marriageable’ or accepted members of the community (DeLaet, 2012: 573; Zabus, 2009: XXVII).

In this regard, Smith’s (2011) work on comparing American and Senegalese women’s attitudes towards different practices of female body modification, such as FGC and breast implantation, further sheds light on both parental motivation and the shifts in the conceptualization of bodily integrity on the part of different actors. Smith (2011: 36), in particular, has shown that reactions to different forms of body modification depend on one’s understanding of women’s social role. In the case of Senegalese women, for instance, genital modifications were seen as part of an attempt to provide the women with a socially-accepted identity as a child-bearer. For the author, women (both Senegalese and American) might see the ‘normalizing structures’ in other women’s lives without acknowledging those in place in their own lives (Smith, 2011: 36). Hence, whilst breast implantation is often seen by American women as a legitimate body modification that does not breach the integrity of the body, the contrary is true for Senegalese women, who justify FGC as a necessary ritual to gain membership in the community but strongly reject the practice of breast implantation. Smith’s work should not be understood as a defence of FGC but rather as an occasion to reflect on the importance that cultural factors play in shaping our perception of what is a ‘proper’ or ‘whole’ body, and how these various perspectives can be brought into dialogue with human rights.

This same discourse about shifting perspectives on bodily integrity in relation to FGC can be applied to the issue of (religious) circumcision. In this regard, Dekkers et al. (2005: 188) have argued that the concept of bodily integrity is subject to change depending on the context. In reflecting on the different justifications for female or male ‘genital cutting’, the authors made a distinction between a ‘body-oriented’ and a ‘person-oriented’ approach to bodily integrity (Dekkers et al., 2005: 179). While the former – common in most monotheistic religions (Judaism, Christianity and Islam) and philosophical traditions – prescribes that the individual cannot entirely dispose of his own body, the latter – common in law, ethics and health policies – requires a general respect for the integrity of an individual’s body.

From this perspective, therefore, it could be argued that the practice of FGC, circumcision and surgical interventions on intersex children seem to be motivated by a body-oriented approach, rather than a person-oriented approach that acknowledges the dimension of the right of the individual freely to decide on one’s body. The distinction between these two approaches can be useful in understanding why some practices are seen as being ‘acceptable’ in some cultures, countries or religions, whilst others are proscribed and considered barbaric, and why selectivity relating to different practices in the legal domain may give rise to conflicts. Both Islam and Judaism routinely practice circumcision on young boys, whilst they reject FGC. This does not mean that in some countries with a Muslim population – Egypt or Sudan for instance (Aldeeb Abu-Sahlieh, 2009: 14) – FGC is unknown. Nonetheless, as Dekkers et al. (2005: 180) have explained, in both Islam and Judaism, male circumcision is seen as being dictated by God, whilst FGC is perceived as being an outright a violation of girls’ bodily integrity.

Decisions concerning the meaning of the concept of bodily integrity are thus significantly mediated by cultural, social and religious factors. Intersexuality does not escape this logic. In fact, across religious, cultural and social groups, intersexuality may be dealt with and conceptualized in different ways. For instance in Malaysia, as has been pointed out by Kuhnle and Krahl (2002), parents from different religious backgrounds display different attitudes when doctors tell them that their child needs to be assigned to the female gender. According to the authors’ findings, Muslim families, in particular, would be more willing to accept this than families from the other two most significant ethnic groups in the country (Indian and Chinese) (Kuhnle and Krahl, 2002: 94). This is because of the specific role played by women within the social hierarchy of the Muslim community in Malaysia, compared to the role played by women in the other two groups. At the same time, religions, cultures or social formations should not be treated as monolithic entities, as it is not always easy to disentangle religious from social factors affecting decisions on children’s or adults’ bodily integrity. Christian theology, for instance, sees intersexuality as a deviation from the given categories of gender of ‘male’ and ‘female’ (Cornwall, 2010: 1), as a symptom of the ‘fallen state of humankind’ (Hester 2006: 47) or as being ‘against the will of God’ (Jung 2006: 296). Here, both theological and social explanations are given about the necessity of knowing beyond doubt the gender of the child. As Jung (2006: 293) has argued, Christianity – like other religions – strongly grounds its traditions in the principle of sexual dimorphism. Christian theology, however, interprets selectively the concept of bodily integrity as it does not contemplate FGC or circumcision as legitimate practices to be carried out on children.

Complex as it is, the conceptualization of the concept of bodily integrity across different continents, cultures or societies can become a true problem in the context of the creation of human rights instruments aiming to guarantee the rights of the child. How best to navigate this complex web of traditions, justifications and customary practices, which may be seen as taking precedence over the law? The example of the resolution is telling in this regard. Although it contained a call for intercultural and interreligious dialogue, the resolution did not indicate which instruments could be used in order to think about alternatives that take into serious account the preoccupations of parents who want to preserve identity, belonging to their cultural or religious group, or obtain social acceptance for their intersex children. In order to be effective, the resolution should have taken more seriously these concerns, whilst acknowledging the need to negotiate the boundaries on what can be done in the name of religion, culture or social prescriptions (such as maintaining the ‘male/female’ dichotomy) to children deprived of their ability to consent to treatments that are not intended to be life-saving.

This dilemma, between competing (or conflicting) interests and the role of human rights, can be illustrated further by analysis of the issue of intersex normalizing surgeries. Whilst these are not characterized by the existence of religious or cultural prescriptions, they are routinely performed whenever an intersex child is born. On what basis, therefore, can the concept of bodily integrity be changed? Can human rights effectively counterbalance the dominating medical narrative about intersexuality, and should a human rights approach be the only tool to change societal perceptions about intersexuality and gender diversity? The final section of this article will attempt to answer these questions.

Intersexuality and Human Rights: From Medicalization to Juridification? The Pace Resolution and the Challenges of a Human Rights Approach to Intersexuality

Intersexuality¹⁵ is a complex phenomenon concerning individuals¹⁶ born with chromosomal, gonadal, and anatomical characteristics that appear in contrast with given (or presumed) notions of the male and female sex. As such, intersexuality directly calls into question gender categories and notions of male and female gender identity that are taken for granted. In her book on transgender children, Giordano (2013: 170) affirms that ‘gender identity cannot be challenged: it must be a personal discovery and creation’. The gender identity of transgender and intersex children, however, is constantly challenged, as parents’ views often take precedence over children’s wishes when they are able to formulate an informed opinion about themselves and their gender identity. So far as intersexuality is concerned, this parental interference is translated into a form of ‘medical interventionism’, whose origin can be said to be relatively recent. Before the XX century, decisions on the appropriate societal role of intersex individuals in Western societies were taken by legal and religious authorities rather than physicians (Fausto-Sterling, 2000: 40; Kuhnle and Krahl, 2002: 88). The advent of the ‘medical-industrial complex’ (Hester 2006: 47) in the XX century, however, paved the way for new ways of ‘managing’ intersexuality, and medical practitioners became the gatekeepers of intersexuality and sexual identity. Beginning with Dr Money’s pioneering work in this field in the 1960s (Fausto-Sterling, 2000: 46), medical evaluation and intervention on the bodies of intersex children slowly became crucial in the definition of the concept of ‘intersexuality’ in both the United States and Europe. This led to the ‘medicalization of intersexuality’: that is, a ‘medicocultural disciplining of bodies whose appearance departs from social and cultural desires’ (Svoboda, 2013: 241). Intersex children became routinely subjected to surgical procedures aimed at bringing presumed coherence between aesthetics, sex and gender.

The resolution voted on at PACE acknowledged the pervasiveness of the medical model of management of intersexuality and called for a proscription of normalizing surgeries for intersex children performed without their informed consent. However, the question is whether an official statement, such as that contained in the resolution, is enough to trigger and enable change in this field with a complete dismissal of a deeply entrenched medical model of evaluation based on strong cultural and social prescriptions about gender roles and identities. As in the case of FGC and circumcision, it can be argued that long-standing practices such as intersex normalizing surgeries cannot be radically altered without fully understanding the context in which they occur and develop legitimacy. In this regard, therefore, it is important to explore the mechanisms behind the medicalization of intersexuality, in order to understand better how the balance can be shifted in favour of the guarantee of the human rights of intersex children.

Medicalization of intersexuality is largely based on strong cultural presumptions and power dynamics. As tools of control over both parents and children (Svoboda, 2013: 239), genital surgeries performed on children with intersex conditions reveal the existence of an ‘excess of biopolitical control’ on the part of doctors (O’Brien, 2015: 16), aimed at eliminating any form of genital ambiguity. The existence of this mechanism begs the inevitable question of where to draw the boundaries between medically justified and culturally justified interventions on intersex bodies. Medical practitioners, furthermore, can not only decide – in a discretionary way – to which sex (and gender) the child should be assigned, but also can withhold relevant information from patients and parents (Martin, 2002: 145). Hence, the characteristics of medicalization of intersexuality, and the existence of imbalanced power dynamics between the surgeons and the parents on one hand, and the intersex child on the other, inevitably raise issues concerning the human rights of the child.

The predominant narrative of intersexuality as a medical issue has for long time overshadowed the obvious political, social and legal (Travis, 2014: 4) implications relating to the status of children and adults with an intersex condition. Intersexuality has been shrouded in silence and shame, thanks to the reinforcement of cultural prescriptions concerning normal and abnormal manifestations of sex and sexuality (Greenberg, 2012). To this widespread political, social and legal invisibility, intersex activism has responded with a call for a ‘politicization of intersex identities’ (Chase, 2006: 300) in order to undermine the medical protocol and the heteronormative assumptions underpinning it. Nonetheless, as Bird (2005: 69) has observed, ‘speaking of human rights in the area of intersex is difficult, because although rights discourse makes claims to gender neutrality, rights do not precede the sexed (male/female) body’.

Intersexuality, therefore, seems to challenge one of the ‘cores’ of society: that is, the presumably incontrovertible knowledge about sexual and gender dichotomy. As such, medical treatment of intersexuality is not motivated so much by the fact that intersexuality ‘threatens’ the child her/himself, as it is by the risk of ‘threatening […] the infant’s culture’ (Kessler, 1998: 32). In this regard, discarding the medical management of intersex conditions does not only require an engagement with medical practitioners themselves and their deployment of bio-power; but it also requires a deeper engagement with unspoken social rules about gender difference which permeate every field of social organization, including the field of human rights itself.

Human Rights and the Juridification of Intersexuality

In attempting to explain the difficulty of shifting from the medical to the human rights approach, Holmes (2005: 128) has suggested that human rights discourses on intersexuality are systematically overshadowed by the so-called ‘benefcience approach’, by which medical practitioners are believed to tackle an ‘emergency’ in need of resolution. This dynamic seems to erase the subjectivity of the child and the calls to enable the individual to exercise a right to bodily integrity. Issues concerning both the rights of children undergoing normalizing surgeries and the rights of adults who have undergone these procedures during childhood are numerous. Among the most significant, there are questions around the role of parental consent in the performance of intersex genital surgeries (Parlett and Weston-Scheuber, 2004), the protection of the ‘child’s best interests’ (Davidian, 2011), the right to privacy (Larson 2011), the right to autonomy and the right to bodily integrity (Greenberg, 2012: 3).

What underlies all these human rights concerns, however, is the lack of agency on the part of the child. Is the child allowed to decide on her/his own body? As has been indicated, parents often justify giving non-life-saving surgeries or medical treatments to their children by claiming that they are acting in the child’s ‘best interests’. When referring to English law in relation to the possibility for trans children to obtain treatment for cross-sex hormones, Giordano (2013: 119) has claimed that the child can have the right to consent to treatment but does not seem to have the right to refuse medical treatment. In this regard, Giordano’s claim could be used to argue that children may – under English law – request to be treated with cross-sex hormones, but may not have the same choice when it comes to deciding whether they want to be surgically assigned a certain sex or not, as is the case for intersex children. Giordano’s reflections, in this context, resonates well with Oswell’s claim (2012: 166) when he affirms that, in the field of medicine, ‘the child is always constructed as the object of the gaze, never its subject’. With these premises, it is apparent that the shift from medicalization to juridification of intersexuality can only happen if the child becomes the focus of attention, rather than the ultimate target of action, together with a consideration of all the corollary aspects relating to the child or infant’s cultural, social and religious background that play a role in influencing parents’ decisions.

The codification of the rights of intersex children and adults, however, cannot happen in a vacuum. The PACE resolution, in this regard, is one of the first attempts to frame intersexuality as a ‘human rights issue’ in the context of international human rights law. In fact, at present, there are no standards at the international level regulating the legal and/or medical protocol to be adopted when a child with an intersex condition is born (Fausto-Sterling, 2000; Preves, 2002: 524). O’Brien (2015: 2) has attributed this lack of interest to the fact that international law is characterized by a strong dynamic of the ‘naturalization of binary sex’, resulting in an almost complete erasure of bodily diversity. On a similar note, Knouse (2005: 144) has claimed that the legal system is complacent in ‘recogn[ising] and codif[iyng] the socially-constructed binary view of sex and allow[ing] for the perpetration of sex stereotypes’. It comes as no surprise, therefore, that at the level of nation states, little has been done legally to regulate surgical interventions on intersex children (Greenberg, 2012: 112).

The lack of specific human rights instruments to vindicate and guarantee the rights of intersex children has pushed scholars to refer to the UNCRC in order to ground their claims. Greenberg (2012: 112), in particular, has argued that medical management of intersex conditions contrasts with at least four articles contained in the UNCRC. These four articles would be Article 2, preventing discrimination of children on grounds of sex; Article 3, requiring that in every decision, the best interests of the child should always be ensured; Article 12, which protects children’s right to have their opinion taken into account in decisions concerning them directly; and Article 16, relating to the protection of children’s privacy. Greenberg does not attempt to find a provision to ground the right to bodily integrity, in contrast to the approach suggested by Bird (cited in Hermer, 2007: 261), for whom Article 19 of the UNCRC, prescribing that states have the duty to ensure that all measures are taken in order to protect the child from mental and physical violence, could support the proscription of intersex normalizing surgeries and protect the bodily integrity of children.

Once again, the concept of the right to bodily integrity is both inescapable and ephemeral for scholars and intersex activists and in urgent need of being thoroughly conceptualized and dissected in its cultural, social and theological components. Concepts such as ‘the best interests of the child’ or ‘respect for children’s privacy’ can also be interpreted differently according to the context and the instant case. Resorting solely to the UNCRC in order to enable that shift from the medicalization to the juridification of intersexuality can be seen as a short-sighted attempt, which exaggerates the role of the law in being the sole catalyst for social, cultural or religious change. Similarly, relying exclusively on the resolution in order to enable structural change in the field of children’s rights is destined to fail, as the resolution would only superficially touch on the layers of cultural, social and religious justifications used to alter children’s bodily integrity.

So far, this article has sought to illustrate the lines along which both scholars and activists in the field of intersex rights have worked in order to render obsolete medical intervention on intersex children at the advantage of a human rights approach that puts at the forefront the agency, wishes and desires of the intersex child. This process of shifting from a paradigm of intersexuality ‘as illness’ to a paradigm of intersexuality as ‘characteristic’, however, is fraught with difficulties, especially because the law is no less innocent than medicine in reifying individuals and acting as a vehicle of deployment of power. On the contrary, the process by which intersexuality suddenly becomes ‘a human rights issue’ presents shortcomings in relation to the issue of how individuals can effectively exercise their self-determination in relation to their sex or gender.

Medicalization and Juridification of Intersexuality: Two Sides of the Same Coin?

Thus far, it has been argued that the shift from the medicalization of intersexuality to the guarantee of the rights of the intersex child can be defined in terms of juridification. However, in order to understand fully why a human rights approach to this issue may have some limitations, an explanation on this concept is necessary. Descriptively, the term juridification indicates the ‘proliferation of law’ (Blichner and Molander, 2008: 36) in areas in which positive law did not exist to regulate a specific issue. In this regard, Blichner and Molander (2008: 37) indicate the successful proliferation of human rights discourses worldwide, as a clear indication of the growing importance of the phenomenon of juridification. The concept, however, may also often imply a value judgement (Teubner, 1987: 421). In qualitative terms, in particular, juridification can be seen as a form of ‘colonization of the life-world’ (Habermas, cited in Teubner, 1987: 421). Hence, as with medicalization, the process of juridification risks leading to a hegemonic interpretation of reality and the regulation of social phenomena, with a subsequent reduction of alternative spaces in which creative and innovative social and cultural solutions can be sought.

In the context of activists’ strategies to have intersex rights inscribed in the international human rights agenda, medicalization and juridification can be thought of as antithetical responses to the need to address the social, political and juridical status of individuals with intersex conditions. Nonetheless, one should avoid resorting to an antithetical opposition between the two approaches. Indeed, it could be argued that both phenomena are constituted by forms of biopolitical power that are expressed through the regulation of the intersex experience and, to a certain extent, its objectification. If resorting to the model of medicalization of intersexuality implies a normative intervention on the viability and intelligibility of some bodies at the detriment of others, privileging a model of juridification may result in a proliferation of laws that productively shape and constrain intersexual subjectivity or experience as being limited to specific forms. As a form of social discourse (Knouse 2005: 144), the law can have an ambiguous role in both upholding or ‘interrupting’ culture, thus acting as the gatekeeper of admissibility of practices, identities or behaviours.

It can be argued, therefore, that whilst appealing, the model of juridification of intersexuality presents substantial theoretical and practical challenges. Firstly, there is the risk of meticulously regulating every aspect of the intersex experience to the point that intersex identities and/or experiences may become entirely described through legal language. As Travis (2014) has argued, the legal regulation of the situation of individuals with intersex conditions can create a ‘third category’ that can be further singled out and articulate in opposition to the male/female majority. Simultaneously, as indicated by O’Brien (2015), a strong reliance on human rights strategies on the part of intersex activists may also lead to a characterization of intersex individuals as being intrinsically ‘vulnerable’ and placed in a passive position with respect to the advocacy of their human rights. From this perspective, the law would further objectify intersex persons, rather than enabling their self-determination.

Secondly, challenges may also arise when establishing a comparison between intersexuality and other phenomena such as FGC and (religious) circumcision. The attempt to proscribe practices whose social, cultural or religious component and justification is particularly strong (such as in the case of FGC, circumcision and intersex normalizing surgeries) without adequately addressing the factors that make those practices resistant to change is likely both to push the practice underground (Aldeeb Abu-Sahlieh, 2009: 40) and create a backlash (DeLaet, 2012: 573). In the specific case of intersexuality, framing intersex experiences exclusively through the lenses of juridification does not help to imagine how, in order to be fully granted human rights, the intersex person needs to find an environment in which sex and gender categories do not so strictly intervene in the regulation of daily life.

Forcing parents to forego normalizing surgeries for their intersex children without addressing the issue of how to move towards a more gender-neutral society for everyone is at its best a short-sighted legal intervention that regulates the issue at the end of the causal chain, without intervening on the causes that lead parents to seek help to alter their children’s bodily integrity. Ultimately, the juridification of intersexuality, FGC and circumcision – through instruments such as the PACE resolution – could only be considered successful in the extent to which it would be effective in helping parents to move away from projecting onto their children ‘their own fears and their own ideas about what is “normal” and desirable’ (Roen, 2009: 22) without, simultaneously, demonizing¹⁷ them (DeLaet, 2012: 572). In this regard, abandoning the illusory idea that legal regulation can alone engender radical and lasting social change is a good starting point to start negotiating the boundaries between parental rights and the rights of children.

Conclusion

This article has sought to shed light on the process by which intersexuality has slowly started to be framed as a human rights issue in the context of the CE, and on the way in which this debate has been interwoven with both issues relating to the proscription of FGC and the regulation of (religious) circumcision, particularly within the framework of resolution 1952 passed at the PACE in 2013.

Firstly, by critically reflecting on the political process that has led to the approval of the resolution at PACE, the article has assessed the usefulness of the emerging concept of a right to bodily integrity to advocate for the rights of children with respect to practices such as intersex normalizing surgeries, FGC and circumcision. More specifically, this contribution has assessed the potential, and the limits, of resorting to a right to bodily integrity in order to protect the rights of children, by highlighting the fact that the term may acquire different meanings across cultural, social and religious contexts, thus complicating the task of debating and finding agreement on what are the boundaries of parental authorities in relation to the physical integrity of their children. For this reason, it has been argued, the resolution can be seen simultaneously as being a step forward in the field and a missed opportunity to dig deeper into the cultural, religious and social motivations that push parents to subject their children to different invasive procedures.

Secondly, the article has investigated how the resolution can be helpful in eradicating the phenomenon of normalizing surgeries on intersex children, by looking specifically at the factors that currently make this practice widely accepted. The article has looked at the dynamic by which intersexuality is slowly passing from being solely described as a ‘medical phenomenon’ to being configured as a pressing human rights issue. This shift towards the juridification of intersexuality, however, has been found to be problematic, insofar as it risks objectifying intersex individuals in a similar way to medicalization. Consistent with the analysis of the concept of the right to bodily integrity, it has been argued in this case that only working towards creating a more ‘gender-neutral’ society will dramatically improve the human rights of intersex persons, since this would challenge the core of societal stereotypes about sex and gender that limit the possibilities for self-expression, development and full human flourishing.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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