*Submission on behalf of Brújula Intersexual for the review on the tenth anniversary of the Yogyakarta Principles, a collaboration between Laura Inter (Brújula Intersexual) and Hana Aoi (Vivir y Ser Intersexual)
Human rights issues and perspectives from the experience of the intersex community in Mexico.
In regard of the tenth anniversary review of the Yogyakarta Principles, we the members of the Brújula Intersexual project submit our perspective on the main human rights issues and demands from the experience of the intersex community in Mexico, as well as our suggestion on how the Principles should be supplemented to duly attend such issues, supported on the current state of international law and on recent legal developments that have taken place in different countries that serve as example and could provide guidance to other countries in order to create legal frameworks and law enforcement policies to ensure the observance of human rights for the intersex community.
Note: following the current intersex activists’ recommendation on the use of inclusive pronouns for English language on gender identity, we use “they”, “their” and “them” for a single individual.
The Principles and human rights issues of intersex people.
Forced medical procedures.
Intersex people, specifically when they are children (children as defined by the Convention on the Rights of the Child), are particularly vulnerable to unnecessary, irreversible and lifelong harmful practices due to stereotypical notions that bind gender and sex characteristics. Given that a child’s opinion is rarely asked nor voiced even when it’s their own body that is at stake, it’s their parents and practitioners’ beliefs on how a human body should look like that give way to unnecessary and irreversible medical procedures on the sex characteristics of intersex children in their early childhood.
While the Principle 18 already states that no person should be forced to undergo any kind of harmful medical practice on the basis of cultural stereotypes, we believe it should be supplemented to reflect the fact that health professionals shouldn’t perform any medical procedure by imposing (“bullying”) the child’s parents their personal notion of gender and sex characteristics, which is often a reason why parents consent to these practices. Furthermore, Principles 28 and 29 should include intersex people as subjects of the right to remedies and the obligation of States to prosecute violations to the right stated in Principle 18.
On the application of human rights law in Chile.
It’s relevant to mention on this subject the achievements attained in Chile in December 2015, when a public policy known as Circular 18, developed by the Chilean National Council for the Children, was issued by the Chile Health Ministry. This document states not only that all normalising medical treatments on intersex children should be stopped, but also that the care of every case won’t rely only on physicians or specialised teams, but also on the very Health Ministry who, on behalf of the State (as stated by the Committee on the Rights of the Child), will follow-up what happen to them. This is a fine example of a policy that acknowledges the respect of human rights of intersex people, but also an example of a law instrument issued from a government agency (Godoy, 2016, in Informe Anual sobre Derechos Humanos en Chile), and in that regard a tool for parents and allies of the intersex community to protect children from forced procedures.
Access to health services of the highest attainable standard.
Another common issue is the lack of adequate training of health professionals of every discipline and area when dealing with intersex people. Principle 17 calls all States to ensure that persons working in the healthcare sector are educated and trained to deliver their services with full respect of the person sexual orientation and gender identity (SOGI). However, we deem it should be supplemented in order to stop addressing intersex variants as pathological disorder, encouraging health professionals to acknowledge sex characteristics as something more complex than just a binary notion of sex and gender.
The same Principle should reinforce the right of children to voice their opinion regarding their own body. In this case, it should call States to ensure that any kind of medical procedure on the intersex child’s sex characteristics must be delayed until they can express their opinion and participate directly in the decision on whether or not undergo any procedure.
Finally, there’s a number of conditions associated to intersex variants, some of which are life-threatening. Principle 17 also should address the need of intersex people for adequate healthcare associated to their variant, but emphatically separating this need from any other medical procedure on their sex characteristics.
There’s the case where birth certificates are denied to parents if they fail to deliver proof of the gender to be assigned (e.g. clinical studies, even undergoing sex-assignment procedures). Such display can be interpreted as discrimination based on the notion of sex and gender as inseparable.
While ideally removing the gender marker from legal documents or making it optional could be a solution, there’s still further steps to be taken first towards intersex visibility and awareness in order to avoid discrimination and stigma. We believe that the gender of assignment at birth should be decision of the parents, but no medical procedure on the child’s sex characteristics should be executed at all. Later in life, if the child’s opinion regarding their body involves also a reassignment in the gender marker, it should be available. Therefore, States must enforce this specific right in order to allow intersex people (and their parents when they are underage) to get all forms of legal documents without need of proving a gender based on sex characteristics.
Principle 3 already states that everyone shall be recognized before the law. However, it should be supplemented to reflect this obligation of the States.
On the application of human rights law in Australia.
In this matter, it’s worth to mention the case of the Sex Discrimination Amendment Bill issued in 2013 by the Australian Senate, which enabled the issuing of passports all across Australia without needing to specify a gender by having a third choice available in the form of an ‘X’ option. While we agree that such option is ground-breaking for intersex individuals whose gender identity doesn’t fall in the typical male or female classification, it should be cautiously considered because an ‘X’ option would stir the issue rather than being a solution for attaining identity documents in countries where discrimination for gender identity is still a matter of life or death. We believe the Principles should reflect the right to legal documents with no regard of gender identity, and with no obligation to state any gender at all, which is, in fact, a variation of the Australian case.