Intersexuality and the Law: Current European Approaches(dettagli)
Titolo: Intersexuality and the Law: Current European Approaches
This essay focuses on the complex relationship between intersexuality and the law. It aims to highlight the issues that are emerging in European legal systems due to the lack of specific measures or legislation regarding gender identity, and the ad hoc legislation which does exist but fails to distinguish transsexualism from intersexuality.
The most pressing issue that the law should tackle is the performance of unnecessary, irreversible, and invasive surgery on intersex children. Indeed, most of European Member States do not explicitly legally ban this practice.
First, international and European Union law is considered noting that they do not provide for any legally binding instrument for the protection and recognition of intersex human right. However, in recent years they have shown to be progressively responsive towards intersex individuals.
Then, three legislative models are identified and the national legal frameworks corresponding to them analysed. The first, adopted by Germany and Austria, is based on the introduction of a third sex. The second is contained in Belgian legislation, and establishes the self-determination principle, which permits the choice of a preferred gender on identity documents, without particular requirements being met. The third approach has been adopted only by Malta so far. It is characterised by multiple measures and, accordingly, it is more systemic and holistic. In fact, the Maltese legislation explicitly recognises the intersex condition, and it conceives sex as a spectrum, thus going beyond gender binarism. Moreover, it prohibits discrimination based on sex characteristics, establishes the self-determination principle, and it bans irreversible, unnecessary, and aesthetic surgery from being carried out on intersex people.
Lastly, theoretical analysis on the role the law should play in tackling intersex issues is presented. Alongside, some factual cases of human rights violations on intersex people a way forward is proposed, considering the most interesting proposals and insights from the intersex community.
Autore: Martina Molinari
Università degli Studi di Torino
CIRSDe – Centro Interdisciplinare di Ricerche e Studi delle Donne e di Genere dell’Università degli Studi di Torino
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