Mariza Avgeri gives a comprehensive overview of the discourse around intersex people and their identities.
Image from https://cadehildreth.com/intersex/
‘Intersex’ is an umbrella term used to denote people whose chromosomal, hormonal and/or anatomical characteristics do not fall strictly or fall in varying degrees within the medical categories of male or female. When a child is born, it is categorised as a boy or a girl; while this may seem an innocent categorization, it demonstrates the fundamentality of sex and gender classifications in our society, and the binarism according to which human sex is primarily and arbitrarily categorized. It also demonstrates the rigid way in which human bodies are classified in mutually exclusive categories, which do not correspond to natural characteristics. Intersex persons cannot be categorized according to medical norms in strictly ‘male’ or ‘female’ bodies, and that becomes evident in either ‘secondary sex characteristics such as muscle mass, hair distribution and stature, or primary sex characteristics such as the inner and outer genitalia and/or the chromosomal and hormonal structure’. In that way intersex people may ‘pass’ for the gender they are assigned at birth or not. By ‘passing’ one refers to the displaying of gender markers that correspond to one’s chosen gender, which in the context of the current binary sex categorization refers to either a female or male sex/gender. Intersex people may also identify as the gender they are assigned at birth or not, which makes trans rights and legal gender recognition rights very relevant to this particular group of people, even though intersex and transgender phenomena are distinct and face both similar and different challenges. Some intersex people can identify as non-binary genders, or as simply intersex, although there are competing views on whether intersex can refer to a gender identity as well. An intersex person can identify as both intersex and trans, when their gender identity does not correspond to the gender they were assigned at birth. They may also face challenges very common to trans people, when they do not ‘pass’ as the gender with which they identify. On the other hand, intersex people face particular challenges, that trans people do not, especially when it comes to ‘corrective medical interventions’ on their sex characteristics at an early age, in order to fit ‘male’ or ‘female’ categories. It must be noted that individual gender identity does not necessarily conform with the sex assigned at birth. When it comes to intersex people, it is estimated that the wrong assignment of sex varies between 8.5% and 40%, making gender recognition laws, as well as gender affirmation discourse very relevant for intersex persons. The process of rejecting the sex assigned at birth often becomes a major infringement of intersex persons’ psychological integrity.
According to Rubin, intersex which is an umbrella term for people born with atypical sex characteristics, is a term referring to sexual anatomies that various societies perceive as being non-standard, rather than people with non-standard anatomies. In Rubin’s view highlighting the ambiguity and role of societies’ perception ‘calls attention to the material-semiotic overdetermination of intersex’. Intersex conditions constitute according to mainstream medical models, disorders of sex development (DSD), and are seen as ‘abnormalities’ that require medical intervention. For example, intersex people in many cases are subjected to involuntary ‘sex-normalizing’ procedures after they are born or during childhood, mainly performed on their reproductive organs that can also end their reproductive capacity. These procedures are performed without their informed consent or that of their parents and are rarely medically necessary. Unfortunately, the views of the children are not taken into consideration and the interventions performed have most of the times irreversible consequences on their mental and physical health.
Unlike transgender people, people with atypical sex characteristics can have their right to life violated through ‘sex selection’ as foetuses and also through ‘preimplantation genetic diagnosis, other forms of testing, and selection for particular characteristics’. The practice of such abortions has been said to be incompatible with human rights standards, since it entails discrimination against intersex people on the basis of their atypical sex characteristics.. It becomes apparent that intersex people face different challenges in comparison to trans people, with many of the gross infringements of their rights taking place up to their childhood. On the other hand, gender recognition laws and gender identity affirmation are crucial for both groups, which share common goals when it comes to the protection of their preferred gender identity.
One of the key goals of intersex advocacy groups is putting an end to the normalizing surgeries and other cosmetic procedures that take place in order for people with atypical sex characteristics to fit the male/female binary. The procedures performed on intersex people’s reproductive organs are often referred to as ‘intersex genital mutilation’. In his report to the UNHCR, Juan E. Mendés, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, views non-consensual surgical intervention on people with atypical sex characteristics as a form of torture. According to his report, ‘[t]here is an abundance of accounts and testimonies of persons being ... subjected to ... a variety of forced procedures such as sterilization, State-sponsored forcible ... hormone therapy and genital-normalizing surgeries under the guise of so-called ‘reparative therapies’. These procedures are rarely medically necessary, can cause scarring, loss of sexual sensation, pain, incontinence and lifelong depression and have also been criticized as being unscientific, potentially harmful and contributing to stigma’. In one of the most progressive provisions for intersex individuals, the Maltese Gender Identity, Gender Expression and Sex Characteristics Act, a right to bodily autonomy and physical integrity is established prohibiting ‘medical practitioners or other professionals to conduct any sex assignment treatment and, or surgical intervention on the sex characteristics of a minor which treatment and, or intervention can be deferred until the person to be treated can provide informed consent […]’.
Both intersex and transgender people suffer the repercussions of a strictly heteronormative society that defines people according to their sex characteristics in a binary manner that assumes that gender identity derives from the societal depiction of primary sex characteristics as they are classified after birth. Both groups are expected to adhere to social norms concerning sex/gender and are not allowed their agency over their sex/gender configuration. For this reason, this thesis will not exclude problematics that arise for intersex people, especially relating to the need for affirmation of their gender identity, whether they identify as trans or not. On the other hand, it will focus mainly on gender identity discourses and not on other infringements such as intersex genital mutilation which according to my view call for a more focused approach on sex characteristics and their binary classification in particular. The need to protect intersex people has medical implications that are distinct from the need to abolish the medicalization and pathologization of transgender people and call for a more nuanced theoretical and legal approach that examines the binarism of sex classification assignment and not gender identity per se.
On the other hand, some rights, such as the right to physical and psychological integrity are particularly important both for intersex and transgender people, in the context of involuntary medical treatment and gender identity medical/psychological affirmation respectively. The interference with the physical integrity of the individual in the case of intersex people and the psychological integrity of the individual in the case of transgender people can result in an infringement of the right to respect for private life under Article 8 of the European Convention of Human Rights according to the European Court of Human Rights since it happens against the individual’s will and sense of self. The State has a positive obligation to protect the physical integrity of people within their jurisdiction and their right to live with dignity in accordance with their sexual identity.
Another right that is relevant for intersex people is the right to the highest attainable standard of physical and mental health without discrimination including sexual and reproductive health. This right which is included in Articles 11 and 13 of the revised European Social Charter is violated for intersex people with involuntary interventions without consent that have negative lifelong results for physical and mental health. Another aspect of the right to health is having access to health services that are efficient and respectful of bodily diversity, a right that is often at stake also for transgender people who have performed gender affirming interventions.
Finally, for intersex people, whose rights are most often violated during their infancy, childhood or adolescence, the rights of the child are particularly important for advocacy to respect human rights standards. The rights of the child are established in the Convention on the Rights of the Child and include that the best interests of the child are a primary consideration in all decisions affecting children (Article 3), the right to preserve their identity (Article 8), the right of the child to be registered immediately (Article 7), the right of the child to form and express views in matters affecting them (Article 12) and the freedom of expression (Article 13). These rights are very relevant for intersex people, whose subjection to unconsented and non-necessary medical interventions does not take into consideration their best interests, and whose difficulty in registration with atypical sex characteristics breaches Article 7. In addition, children’s rights to form and express views in matters affecting them, as well as their freedom of expression are not respected when their preferred gender identity is not taken into consideration and validated in an affirming way. This holds true for both intersex and transgender children, since the social barriers in having their gender identity and bodily preferences accepted are many. The medical and legal rules governing children’s access to their personal gender identity/expression often exclude children’s views from decisions affecting them, and for intersex people, their rights are often violated as early as at birth. For intersex people, an a priori choice is made for them regarding their gender identity and sexual characteristics which raises significant issues of infringement of their physical integrity.
Aside from the physical consequences of the above medical intervention, what is also disrupted is the psychological integrity of intersex persons that relates to their right to decide their gender identity. The deep violation of their personality comes both from the lack of consent to medical interventions on their bodies, but also from the societal barriers that are present in claiming the gender identity that they choose. There is a controversy surrounding ‘intersex’ as a gender identity, with some claiming that it mostly refers to physical aspects of the body and is not a matter of self-perception. On the other hand, for some, the fact that intersex relates to sex characteristics does not necessarily mean that it cannot refer to gender identity, as it happens with male characteristics and the ‘man’ category. For them, intersex falls in the spectrum of non-binary gender identities, and must be respected as such for those who claim it.
 European Union Agency for Fundamental Rights, The fundamental rights situation of intersex people (May 2015).  Council of Europe Commissioner for Human Rights, Human rights and intersex people (Issue paper April 2015).  Julie A. Greenberg ‘Defining Male and Female: Intersexuality and the Collision between Law and Biology’ (1999) 41(2), Arizona Law Review 265.  Dan Christian Ghattas , ‘Human Rights between the Sexes: A preliminary study in the life of inter* individuals’ (2013) 34 Heinrich Böll Stiftung: Publication Series on Democracy 10.  Council of Europe Commissioner for Human Rights, Human rights and intersex people (Issue paper April 2015) 23.  Paulo Sampaio Furtado, Felipe Moraes, Renata Lago, Luciana Oliveira Barros, Maria Betânia Toralles and Ubirajara Barroso ‘Gender dysphoria associated with disorders of sex development’ (2012) 9 Nature Reviews Urology 620.  David A. Rubin, Intersex Matters: Biomedical Embodiment, Gender Regulation, and Transnational Activism (SUNY series in Queer Politics and Cultures 2018) 1.  Ibid 2.  OHCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO, Eliminating forced, coercive and otherwise involuntary sterilization: An interagency statement (2014) 7.  Morgan Carpenter, ‘Submission on the ethics of genetic selection against intersex traits’ (Intersex Human Rights Australia, 29 April 2014) < https://ihra.org.au/25621/submission-ethics-genetic-selection-intersex-traits/> accessed 28 April 2019.  Robert Sparrow, ‘Gender eugenics? The ethics of PGD for intersex conditions’ (2013) 13(10), American Journal of Bioethics 29.  Council of Europe Commissioner for Human Rights, Human rights and intersex people (Issue paper April 2015) 30.  UNHRC, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - A/HRC/22/53 (2013).  ACT No. XI of 2015, s 14(1).  See Storck v. Germany, App No 61603/00 (ECHR, 16 June 2005); Glass v. the United Kingdom, App No 61827/00 (ECHR, 9 March 2004); Christine Goodwin v. the United Kingdom App No 28957/95 (ECHR, July 11, 2002).  Council of Europe Commissioner for Human Rights, Human rights and intersex people (Issue paper April 2015) 32.  Ibid 33.  OHCHR, LGBT rights: frequently asked questions (UN Free & Equal campaign fact sheet 2013) <https://www.ohchr.org/Documents/Issues/Discrimination/LGBT/FactSheets/unfe-28-UN_Fact_Sheets_English.pdf> accessed 28 April 2019.  Hida Viloria and Dana Zzyym, ‘How Intersex People Identify’ (Intersex Campaign for Equality, 10 July 2015) <https://www.intersexequality.com/how-intersex-people-identify/> accessed 28 April 2019.