A toolkit for law and policymakers

Bodily autonomy – making one’s own informed decisions about one’s body and what happens to it – is a fundamental human right, repeatedly enshrined throughout myriad human rights instruments globally. Each of us holds this right individually. However, it is not equally protected nor enforced for everyone. Across Europe, as well as much of the world, the right to bodily autonomy is regularly and greviously violated on the basis of sex characteristics. These violations are increasingly documented, and today, people with variations of sex characteristics are internationally recognised as victims of harmful medical practice and other human rights violations.

From 2009 to the present, United Nations Treaty Bodies have called on Member States to stop human rights violations against intersex people 49 times. Of these, Council of Europe Member States have received 26 UN Treaty Body recommendations, 15 of these in the past two years alone. The Yogyakarta Principles plus 10 call for protection of intersex people under the ground of “sex characteristics” and for ending human rights violations on intersex people, including protecting their right to bodily and mental integrity.

Additionally, European bodies such as the Parliamentary Assembly of the Council of Europe and the European Parliament have both passed resolutions (2017 and 2019, respectively) calling for, among other protections and policies, the prohibition of sex-“normalising” surgery and other treatments practised on intersex children without their informed consent in national law among their respective Member States.

On a national level, so far only Malta (2015) and Portugal (2018) have established protections for intersex people from violations of their bodily integrity and, together with Greece (2016), protection against discrimination on the ground of “sex characteristics”.

Additionally, courts have begun to recognise and adjudicate on the human rights violations faced by intersex people, both with respect to bodily integrity and gender markers.

ILGA-Europe and OII-Europe are delighted to present the law and policymakers with this toolkit and accompanying appendix and checklist so that we can work together to ensure the protection of all people on the basis of sex characteristics, including those most vulnerable to violations and abuses.

Press Statement: Today, on 14 February 2019, the European Parliament has adopted a landmark Resolution on the Rights of Intersex People.

By adopting this resolution, the European Parliament sets a clear standard within the European Union for the protection of intersex people’s bodily integrity and human rights. The resolution complements the ground-breaking 2017 intersex resolution ‘Promoting the human rights of and eliminating discrimination against intersex people’ adopted by the Parliamentary Assembly of the Council of Europe.

“We applaud the European Parliament for issuing this outstanding resolution”, says Kitty Anderson, Co-Chair of OII Europe. “It is clearly based on an in-depth knowledge about the human rights violations that intersex people face in within the European Union.”

“ILGA-Europe enthusiastically celebrates this historic resolution as the fruit of enormous labour on the part of intersex activist across Europe”, adds Evelyne Paradis, Executive Director of ILGA-Europe.

In its resolution, the European Parliament “strongly condemns sex-normalising treatments and surgery” and encourages Member States to adopt legislation that protect the bodily integrity of intersex people “as soon as possible”. It also confirms that intersex people are “exposed to multiple instances of violence and discrimination in the European Union” and calls on the European Commission and the Members States to propose legislation to address these issues.

Other issues addressed by the resolution include the need of adequate counselling and support for intersex people and their families, measures to end the stigma and pathologisation intersex people face and increased funding for intersex-led civil society organisations. During the debate which preceded the voting, the members of the European Parliament almost unanimously spoke in favour of the resolution and emphasised that “human rights violations experienced by [intersex people] are significant” and that “there is nothing unhealthy about being intersex”.  Minister Delegate George Ciamba, in his statement for the Romanian presidency, confirmed that “extending the right to equal treatment to intersex people is entirely within the spirit of our common European values and of our common campaign for inclusiveness”.

“This resolution is setting a standard within the European Union”, says Dan Christian Ghattas, Executive Director of OII Europe. “To date the United Nations treaty bodies have reprimanded EU Members States 22 times. Ten times alone in the past two years. A 2019 German study which compares the annual numbers of so-called ‘normalising surgeries’ on children from age 0 to 9, shows no decrease of these interventions – despite the fact that in Germany intersex human rights violations have been addressed since the nineties and have been increasingly in the open and on the political agenda since the CEDAW recommendations issued in 2008. We need Member States and the European Commission to step up. On a European level we need a clarification that intersex people are protected against the discrimination and other human rights violations they face and are explicitly included under the protective ground of “sex”.”

“Putting an end to genital mutilation of intersex infants and children is a matter of urgency and the European Parliament is very clear about that,” states Miriam van der Have, Co-Chair of OII Europe. “As for the EU Member States, the EP resolution has set a clear agenda for the next steps that they need to take to protect intersex people’s rights: Member States need to establish legislation that prohibits unconsented non-vital medical interventions; they need to include intersex people in anti-discrimination legislation and to implement measures that establish adequate non-pathologising counselling and support for intersex children and adults and their families; and they need to increase funding for intersex organisations because these are key in raising awareness about intersex people’s needs.”

• OIIEurope and ILGA-Europe were consulted by the LGBTI Intergroup and the LIBE Committee of the European Parliament in preparation of this resolution.
• This is a joint press statement of OII Europe and ILGA Europe.

Are you campaigning for intersex rights in your country? Are you supporting intersex groups in their campaigning efforts? Discover how to frame your messages about intersex issues.

Register now for ILGA-Europe’s interactive webinar ‘Campaigning and message framing for intersex rights’.

REGISTRATION now CLOSED

ILGA-Europe will host an interactive webinar on campaigning and message framing for LGBTI activists and allies working on intersex rights. We will look into the experience of activists around Europe and put into practice the framing techniques we explored in the previous webinars of the strategic communication series.

You will hear from Audrey Aegerter, InterAction – Switzerland, Alessandro Comeni, OII-Italy, Irene Kuzemko and Loé Petit Collectif Intersexes et Allié.e.s. – OII France.

Watch our video recording of the webinar

On 15 August, the Federal Government of germany adopted a draft bill on a third gender option. This bill is a missed opportunity to recognise the right to self-determination of trans, intersex and all gender-diverse people. 

German legislators were requested by the Constitutional Court, following its decision of October 2017, to amend the law on gender registration. The Court provided two possible scenarios: either the Government introduces a “third” non-binary legal gender category or it abolishes the registration of gender altogether. The mandate for drafting the German personal status law amendment lies with the Ministry of Interior, currently led by Horst Seehofer, who is one of the leadings politicians of the conservative party Christian Social Union in Bavaria (CSU).

In June, an early draft of the law was sent to main organizations working on trans and inter issues in order to receive a statement about the draft by July. The two main worrying elements were that the introduction of a “third” gender category was limited to people who present a medical certificate confirming “Differences of Sexual Development“ and that this new gender category would be named “weiteres”, which translates into “other” in English. The draft released on 15 August has improved at least on one of those two points, as it now refers to “diverse” for the name of this new category instead of “other”. However, the third gender category is still only reserved for a specific group of intersex people who can provide a specific medical certificate on “Differences of Sexual Development“.

It means that we are still very far from the introduction of a non-binary legal gender category open for all non-binary persons on the basis of self-determination, which is what the German institute of Human Rights had proposed after consulting trans and intersex groups. We’re also very far from the spirit of the Constitutional Court decision, which explicitly declares that the German Constitution protects the fundamental rights of persons identifying neither female nor male.

The law must now be adopted by the Bundestag and the Bundesrat before entering into force. We call on the Members of the Parliament to amend this draft bill so that it fully respects the fundamental rights of people who would like to make use of this law. We also call on the Government to as soon as possible prohibit unnecessary medical treatments on intersex children and to propose a revision of the current law on legal gender recognition, to bring it in line with the current human rights standards.

Update on the veto issued on 9 May by President of portugal, Marcelo Rebelo de Sousa.

Portuguese President Marcelo Rebelo de Sousa has chosen to veto the ground-breaking law passed by parliament on 13 April, proposing self-determination for trans people and banning unnecessary surgeries on intersex people. The announcement, issued late on Wednesday night (9 May 2018) is frustrating but not fatal.

The veto appears to centre on the legal gender recognition process for minors in Portugal, with the president suggesting that minors should have to obtain a medical opinion in order to change their gender marker.

ILGA-Europe, Transgender Europe-TGEU and OII Europe echo the call of the trans community in Portugal by reminding the President that equality for a few is not true equality. Young people must be able to access a legal gender recognition procedure that is fair and trusts them to know who they are.

The law received the support of a parliamentary majority, after MPs heard directly from trans people, their parents and families, LGBTI activists and experts. 

As our member organisation ILGA Portugal commented last night: “We believe that the Portuguese Parliament has the power to overcome this veto and… it is necessary to take this path to the full guarantee of Human Rights for all trans persons”.

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• For up-to-date information on the legal and policy situation for LGBTI people in Europe, visit our Rainbow Europe Module. 

• The President’s statement on the veto is available here.
• The Council of Europe’s PACE General Rapporteur on the rights of LGBTI people Piet De Bruyn recorded a video message in support of the proposed law earlier this year. 
• ILGA-Europe, TGEU and OII Europe had written directly to President Marcelo Rebelo de Sousa on 27 April, urging him to sign the law.

ILGA-Europe, TGEU and OII Europe urge President Marcelo Rebelo de Sousa to sign the historic law as adopted by the Portuguese parliament on 13 April. 

Two weeks ago we celebrated as Portugal voted to introduce self-determination and protection for intersex kids. 

The reform provides everyone with one of the most basic fundamental rights, the right to be trusted to know who they are.

Now, there’s a risk that a presidential veto could derail the progress that LGBTI activists have worked for years to secure.

ILGA-Europe, TGEU, OII Europe, our partners and allies say in unison – don’t turn back the clock!

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• We have written directly to President Marcelo Rebelo de Sousa, read our joint letter in full here. 
• The Portuguese LGBTI movement have also urged the president to sign this bill into law without delay – and make history.

The Portuguese parliament has voted to adopt a ground-breaking law which better protects and respects the right to self-determination and bodily integrity of trans and intersex people.

“Portugal is really making history today – this law will make Portugal only the second country worldwide to outlaw medically unnecessary treatments on intersex kids.” said Katrin Hugendubel, ILGA-Europe’s Advocacy Director, in reaction to the vote. 

The law was supported by members of parliament this afternoon, following two years of very hard work by LGBTI activists in Portugal.

As a result, when this law comes into effect:

• People will be able to change their legal gender through a procedure based on self-determination. This means that the law finally recognises and respects that trans people themselves know best who they are and how they identify.
• Trans people will no longer need to be diagnosed with gender identity disorder in order to have their gender legally recognised.
• Young people aged 16 and older will be able to access this procedure.
• It will become illegal to perform unnecessary surgery on intersex children.

Portugal joins its European neighbours (Malta, Norway, Denmark, Ireland and Belgium) in opting for a model based on self-determination. Encouraging as it is that the number of countries who opt for this model is growing, there are still too few and more governments need to show leadership here.

However, the current law is silent about a number of critical questions. Now a lot of work needs to be done to ensure that this law is implemented effectively – through guidelines for the health care and education sector for example – to best protect the fundamental rights of trans and intersex people and addresses concerns raised by LGBTI NGOs during the drafting phase.

Hugendubel continued “ILGA-Europe are very relieved that the law based on self-determination was adopted and that it will be accessible to everyone over 16. We are also encouraged that politicians (despite the fact that some parties’ commitment to equality seemed to be wavering in the past few weeks) ultimately voted in favour of respect and common sense. We congratulate Portugal – and look forward to celebrating with our members and friends at the 2018 IDAHOT Forum taking place in Lisbon next month!”

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• The Council of Europe’s PACE General Rapporteur on the rights of LGBTI people Piet De Bruyn recorded a video message in support of the proposed law earlier this year.
• The new law will not immediately come into effect; the act now needs to be approved by the President and then published in the official state journal.
• The final vote figures were being confirmed by activists attending the parliament’s plenary session at the time of this release, but the law was passed in the plenary vote at 13.30 CEST.

Intersex (Legal gender recognition)

(Application no. 40296/16), 14 November 2017 

Find Court’s communication here.

Find Court’s decision here. (non-exhaustion of domestic remedies)

• The applicant, an intersex person, was registered as male, but identifying herself as female. She complains of the absence of any procedure in Ukraine for changing gender and name records for intersex persons.
• ILGA-Europe together with OII Europe submitted the following:
  • There is lack of awareness about intersex people in Ukraine and the issues they face in their everyday lives. This results in a lack of non-pathologising information on intersex and lack of administrative procedures to reflect the person’s gender identity which may be wrongfully assigned after birth.  As a result, intersex people are wrongfully precluded from name change and legal recognition procedures that are available to trans people. 
  • According to the ECtHR, imposing a restriction on one’s right to bear or change a name without justified and relevant reasons is incompatible with the purpose of Article 8, which is to protect individuals’ self-determination and personal development. Therefore, restrictions on name change should be analysed very critically and even more so where they are seeking to prevent conformation with an individual’s gender identity.
  • International and European bodies have emphasized the need for quick, transparent and accessible legal gender recognition and name change procedures based on the principle of self-determination.  There is a growing international consensus at the national, European and international level of the need to recognise and protect their rights.

The German Constitutional Court decision is ground-breaking. It’s putting the conversation about recognition of intersex and non-binary people front and centre in a very positive way. 

German policymakers now have two options: introduce a third gender option for people who do not identify as a man or a woman, or remove gender registration altogether.

Either way, the official recognition of people outside the gender binary is coming to Germany! Yesterday, the court imposed a deadline that has to be met by legislators, so we know things will change by the end of 2018.

The court ruling recognises the wonderful diversity in our LGBTI movement. There are people who identify as male or female or non-binary. By opening up the options on birth certificates (or even removing the need to note down gender markers on such documents in the first place) it acknowledges the existence of intersex and non-binary people in our societies.  

Already in 2013, Germany introduced changes to gender registration. For babies that at birth were identified as intersex, with variations in sex characteristics that don’t fit medical norms for female or male bodies, the gender marker was left blank. However well intended, this blank led to increased stigmatisation of intersex people and raised the pressure on parents to agree to sex-conforming surgeries to make their child fit  a male or female gender marker.

ILGA-Europe are very pleased to hear it stated so publicly that more than two gender and sexes exist. We hope that the voices of many, many intersex and non-binary activists will be heard and listened to during the legislative process – as Hanne Gaby Odiele said at our Gala this year, intersex people are part of society and need recognition and respect!

• For more detailed information, read the joint statement from OII Europe, IVIM-OII Germany, TGEU and the German Trans* Association (Bundesvereinigung Trans*). 

Hanne Gaby Odiele at European Equality Gala 2017 from ILGA-Europe on Vimeo.

ILGA-Europe aim to achieve equality for intersex people and ensure they are protected against human rights violations, discrimination and violence based on sex characteristics.

ILGA-Europe aim to include the needs of intersex people in all our work. One of ILGA-Europe’s key role is to contribute to raising awareness about the ongoing discrimination faced by intersex people in our societies, and to enable LGBT organisations to be supportive and inclusive of intersex human rights concerns and intersex people.

Specifically, we want to contribute to ensuring the full respect of the right to bodily integrity of intersex people.

We also call for quick, transparent and accessible legal gender recognition procedures, available to intersex persons, and based on self-determination. Information about those procedures needs to be easily available and understandable.

We advocate for non-discrimination legislation and policies that protect intersex people, as well as specific measures tackling hate crime and incitement based on sex characteristics.

This toolkit will explain the major challenges intersex people face in different areas of life, set out intersex people’s demands, provide information about current political developments, as well as give advice on how to become a great intersex ally.

The cornerstone of successful advocacy is knowledge. If you want to know how you can work for change, this toolkit will help. It will explain the major challenges intersex people face in different areas of life, set out intersex people’s demands, provide information about current political developments, as well as give advice on how to become a great intersex ally.

Joint contribution by ILGA-Europe, Transgender Europe and OII-Germany towards the European Commission’s assessment of the state of affairs vis-à-vis gender discrimination in education and the provision of financial services