Intersex people are born with sex characteristics, such as chromosomes, gonads, or genitals that, according to the UN Office of the High Commissioner for Human Rights, "do not fit typical binary notions of male or female bodies".
According to the Asia Pacific Forum of National Human Rights Institutions, few countries have provided for the legal recognition of intersex people. The Asia Pacific Forum states that the legal recognition of intersex people is firstly about access to the same rights as other men and women, when assigned male or female; secondly it is about access to administrative corrections to legal documents when an original sex assignment is not appropriate; and thirdly it is not about the creation of a third sex or gender classification for intersex people as a population but it is, instead, about self determination.
The Asia Pacific Forum, Council of Europe, and Third International Intersex Forum call for non-binary gender classifications to be available on a voluntary, opt-in basis. The Council of Europe has called for greater consideration of the implications of new sex classifications on intersex people, while the Third International Intersex Forum called for the long term removal of sex or gender from official identification documents.
In some countries, legal recognition may be limited, access to any form of birth certificate may be difficult, while some other countries recognise that intersex people may have non-binary gender identities. Sociological research in Australia, a country with a non-binary gender marker, has shown that 19% of people born with atypical sex characteristics may prefer that option.
'intersex' means a congenital sexual differentiation which is atypical, to whatever degree; 'sex' includes intersex;
intersex status means the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male.
"sex characteristics" refers to the chromosomal, gonadal and anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and/or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and/or structure.
intersex status means the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male.
"sex characteristics" refers to the chromosomal, gonadal and anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and/or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and/or structure.
In European societies, Roman law, post-classical Canon law, and later Common law, referred to a person's sex as male, female or hermaphrodite, with legal rights as male or female depending on the characteristics that appeared most dominant. Under Roman law, a hermaphrodite had to be classed as either male or female. The 12th-century Decretum Gratiani states that "Whether an hermaphrodite may witness a testament, depends on which sex prevails". The foundation of common law, the 16th Century Institutes of the Lawes of England described how a hermaphrodite could inherit "either as male or female, according to that kind of sexe which doth prevaile." Single cases have been described in Canon law and other legal cases over the centuries.
Intersex scholar Morgan Holmes states that much early anthropological material on non-European cultures described gender systems with more than two categories as "primitive", but also that subsequent analysis of third sexes and genders is simplistic or romanticized:
much of the existing work on cultural systems that incorporate a 'third sex' portray simplistic visions in which societies with more than two sex/gender categories are cast as superior to those that divide the world into just two. I argue that to understand whether a system is more or less oppressive than another we have to understand how it treats its various members, not only its 'thirds'... recognition of third sexes and third genders is not equal to valuing the presence of those who were neither male nor female, and often hinges on the explicit devaluation of women
In recent years, civil society organization and human rights institutions have raised issues relating to legal recognition.
Research indicates a growing consensus that diverse intersex bodies are normal—if relatively rare—forms of human biology, and human rights institutions are placing increasing scrutiny on medical practices and issues of discrimination against intersex people. A 2013 first international pilot study. Human Rights between the Sexes, by Dan Christian Ghattas, found that intersex people are discriminated against worldwide: "Intersex individuals are considered individuals with a «disorder» in all areas in which Western medicine prevails. They are more or less obviously treated as sick or «abnormal», depending on the respective society."
In 2015, an Issue Paper on Human rights and intersex people by the Council of Europe highlighted several areas of concern, including legal recognition:
unnecessary "normalising" treatment of intersex persons, and unnecessary pathologisation of variations in sex characteristics.
unnecessary medicalisation is said to also impact a right to life.
inclusion in equal treatment and hate crime law; facilitating access to justice and reparations.
access to information, medical records, peer and other counselling and support.
legal recognition, including respect for self-determination in gender recognition, through expeditious access to official documents.
According to the Asia Pacific Forum of National Human Rights Institutions, few countries have provided for the legal recognition of intersex people. The Asia Pacific Forum states that the legal recognition of intersex people is firstly about access to the same rights as other men and women, when assigned male or female; secondly it is about access to administrative corrections to legal documents when an original sex assignment is not appropriate; and thirdly, while opt in schemes may help some individuals, legal recognition is not about the creation of a third sex or gender classification for intersex people as a population.
Like all individuals, some intersex individuals may be raised as a particular sex (male or female) but then identify with another later in life, while most do not. A 2012 clinical review suggests that between 8.5-20% of persons with intersex conditions may experience gender dysphoria, distress or discomfort as a result of the sex and gender they were assigned at birth.
Like non-intersex people, some intersex individuals may not identify themselves as either exclusively female or exclusively male. Sociological research in Australia, a country with a third 'X' sex classification, shows that 19% of people born with atypical sex characteristics selected an "X" or "other" option, while 52% are women, 23% men, and 6% unsure. At birth, 52% of persons in the study were assigned female, and 41% were assigned male.
Research has also shown gender identities of intersex individuals to be independent of sexual orientation.
Intersex advocate Morgan Carpenter states that intersex should not be reduced to a gender identity issue; "intersex as identity is polymorphic, but asserts the dignity of stigmatised embodiment." Dan Christian Ghattas states that "People who do not have an intersex body and want to use ‘intersex’ to describe their gender identity, should be aware of the fact that, unfortunately, they are actually making intersex human rights violations less visible."
Currently, depending on the jurisdiction, access to any birth certificate may be an issue, including a birth certificate with a sex marker. For example, in 2014 a Kenyan court ordered its government to issue a birth certificate to a five-year-old child born with ambiguous genitalia, necessary to allow the child to attend school and obtain a national identity document.
Access to the same rights as other men and women
The Asia Pacific Forum of National Human Rights Institutions states that:
Recognition before the law means having legal personhood and the legal protections that flow from that. For intersex people, this is neither primarily nor solely about amending birth registrations or other official documents. Firstly, it is about intersex people who have been issued a male or a female birth certificate being able to enjoy the same legal rights as other men and women
Accessing the same rights as other men and women supposes the elimination of stigma and discrimination on grounds of sex characteristics, and rights to physical integrity and freedom from torture and ill-treatment.
The Asia Pacific Forum also highlights access to sport and concerns with sex verification policies. Sex testing began at the 1966 European Athletics Championships in response to suspicion that several of the best women athletes from the Soviet Union and Eastern Europe were actually men. At the Olympics, testing was introduced in 1968. Initially, sex verification took the form of physical examinations. It subsequently evolved into chromosome testing, and later testosterone testing. Reports have shown how elite women athletes with intersex conditions have been humiliated, excluded, and suffered human rights violations as a result of sex verification testing. Such cases have included female genital mutilation and sterilization.
Access to a birth certificate with a correct sex marker may be an issue for people who do not identify with their sex assigned at birth, or it may only be available accompanied by surgical requirements.
Some countries such as Argentina, Malta, Denmark and Ireland permit changes to sex classifications via simple administrative methods. Some countries, such as Vietnam, Thailand and many European countries only permit changes to sex classifications following surgeries. Other countries do not permit intersex people to change sex assignment at all or, such as the United Kingdom, only by declaring that they are transgender and obtaining a diagnosis of gender dysphoria.
The passports and identification documents of Australia, New Zealand and some other nationalities have adopted "X" as a valid third category besides "M" (male) and "F" (female), at least since 2003. US states have recognised third options since at least 2012, in the case of an 'hermaphrodite' birth certificate sex marker in Ohio. In 2013, Germany became the first European nation to register babies with characteristics of both sexes as indeterminate gender on birth certificates, amidst opposition and skepticism from intersex organisations who point out that the law appears to mandate exclusion from male or female categories.
OII-USA is pursuing third sex classifications for non-binary intersex people, including through a federal court case. On November 22, 2016, the United States District Court for the District of Colorado ruled in favor of Navy veteran Dana Zzyym, associate director of OII-USA, stating that the State Department violated federal law in denying Zzyym a passport because they did not select male or female as their gender. On September 26, 2016, intersex California resident Sara Kelly Keenan became the second person in the United States to legally change her gender to non-binary. In December 2016, Keenan received a birth certificate with an 'Intersex' sex marker from New York City. Press coverage also disclosed that Ohio issued a birth certificate with a sex marker of 'hermaphrodite' in 2012.
The intersex movement supports voluntary and opt-in non-binary and multiple sex classifications, described in the statement of the Third International Intersex Forum. The Open Society Foundations published a report, License to Be Yourself in May 2014, documenting "some of the world's most progressive and rights-based laws and policies" enabling changes to gender markers on official documents. The report comments on the recognition of third classifications, stating:
From a rights-based perspective, third sex / gender options should be voluntary... Those identifying as a third sex / gender should have the same rights as those identifying as male or female.
The Council of Europe acknowledged concerns about recognition of third and blank classifications in a 2015 Issue Paper, stating that these may lead to "forced outings" and "lead to an increase in pressure on parents of intersex children to decide in favour of one sex." The Issue Paper argues that "further reflection on non-binary legal identification is necessary":
Mauro Cabral, Global Action for Trans Equality (GATE) Co-Director, indicated that any recognition outside the “F”/”M” dichotomy needs to be adequately planned and executed with a human rights point of view, noting that: “People tend to identify a third sex with freedom from the gender binary, but that is not necessarily the case. If only trans and/or intersex people can access that third category, or if they are compulsively assigned a third sex, then the gender binary gets stronger, not weaker”
The Asia Pacific Forum of National Human Rights Institutions recognised the right of individuals to non-binary or third sex classifications, but stated that, "creating a third, separate category for the registration of people born with an intersex trait ... would risk segregating and potentially stigmatising intersex people. It would also remove their right to determine their own sex or gender."
The statement of the Third International Intersex Forum calls for an end to official classification by sex or gender on identification documents. Dan Christian Ghattas states that, "providing the options for all parents to leave the sex/ gender entry open for their child would promote the equality of all sexes and genders".
Morgan Carpenter states that, "the removal of sex and gender, like race and religion, from official documentation" is "a more universal, long-term policy goal".
Sex and gender distinctions
Distinctions between sex and gender are lost in many official or legal documents, and also online. In 2014, Facebook introduced dozens of options for users to specify their gender, including the option of intersex.
The Malta declaration by the Third International Intersex Forum, in 2013, called for infants and children to be assigned male or female, on the understanding that later identification may differ:
To register intersex children as females or males, with the awareness that, like all people, they may grow up to identify with a different sex or gender.
To ensure that sex or gender classifications are amendable through a simple administrative procedure at the request of the individuals concerned. All adults and capable minors should be able to choose between female (F), male (M), non-binary or multiple options. In the future, as with race or religion, sex or gender should not be a category on birth certificates or identification documents for anybody. (Third International Intersex Forum)
Access to identification documents: In 2014, a Kenyan court ordered the Kenyan government to issue a birth certificate to a five-year-old child born with ambiguous genitalia. In Kenya a birth certificate is necessary for attending school, getting a national identity document, and voting.
Anti-discrimination law: In South Africa, the Judicial Matters Amendment Act, 2005 (Act 22 of 2005) amended the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act 4 of 2000) to include intersex within its definition of sex. Sex is one of the prohibited grounds under the act, which means that discrimination on the basis of sex is presumed to be unfair, and therefore prohibited, unless proven otherwise. The act provides that:
'intersex' means a congenital sexual differentiation which is atypical, to whatever degree; 'sex' includes intersex;
Access to changes in binary sex marker: The Alteration of Sex Description and Sex Status Act, 2003 (Act 49 of 2003) allows intersex people to change the sex recorded on their official documents. An applicant must submit a medical report indicating that they are intersex as well as a report from a psychologist or social worker indicating that they have lived for at least two years in the corresponding gender role.
Access to changes in binary sex marker: In 2012 the Argentine Congress passed the Ley de Género (Gender Law), which allows any individual aged over 18 to change the gender marker on their national ID on the basis of a written declaration only. In doing so, Argentina became the first country to adopt a gender recognition policy based entirely on individual autonomy, without any requirement for third party diagnosis, surgeries or obstacles of any type.
Prohibition of harmful practices: In January 2016, the Ministry of Health of Chile ordered the suspension of unnecessary normalization treatments for intersex children, including irreversible surgery, until they reach an age when they can make decisions on their own.
Reparations: On November 14, 2012, the Supreme Court of Chile sentenced the Maule Health Service for "lack of service" and to pay compensation of 100 million pesos for moral and psychological damages caused to a child, and another 5 million for each of his parents following surgery without informed consent.
Anti-discrimination legislation: has been announced.
Protection from harmful practices: A case taken to the Constitutional Court of Colombia restricted the power of doctors and parents to decide surgical procedures on the ambiguous genitalia of children after the age of five, while continuing to permit interventions on younger children.
Anti-discrimination: In May 2016, the United States Department of Health and Human Services issued a statement explaining Section 1557 of the Affordable Care Act stating that the Act prohibits "discrimination on the basis of intersex traits or atypical sex characteristics" in publicly-funded healthcare, as part of a prohibition of discrimination "on the basis of sex".
Access to same rights as other men/women: interACT states that they are "unaware of any jurisdiction in the U.S. that enforces its own FGM laws in cases where the girl undergoing clitoral cutting has an intersex trait".
Third gender categories: On Intersex Awareness Day (October 26) 2015, Lambda Legal filed a landmark federal discrimination lawsuit against the United States Department of State for denying non-binary intersex navy veteran, Dana Zzyym, Associate Director of OII-USA, a passport. On November 22, 2016, the District Court for the District of Colorado ruled in favor of Zzyym, stating that the State Department violated federal law. The ruling stated that the court found “no evidence that the Department followed a rational decision-making process in deciding to implement its binary-only gender passport policy,” and ordered the U.S. Passport Agency to reconsider its earlier decision.
On September 26, 2016, intersex California resident Sara Kelly Keenan became the second person in the United States to legally change her gender to non-binary. Keenan, who uses she/her pronouns, identifies as intersex "both as my medical reality and as my gender identification... It never occurred to me that this was an option, because I thought the gender change laws were strictly for transgender people. I decided to try and use the same framework to have a third gender." In December 2016, Keenan received a birth certificate with an 'Intersex' sex marker from New York City, which was the first intersex birth certificate issued in the United States; press coverage also disclosed that Ohio issued a birth certificate with a sex marker of 'hermaphrodite' in 2012.
Prohibition of harmful practices: In October 2013, the Australian Senate published a report entitled Involuntary or coerced sterilisation of intersex people in Australia. The Senate found that "normalising" surgeries are taking place in Australia, often on infants and young children, with preconceptions that it described as "disturbing": "Normalising appearance goes hand in hand with the stigmatisation of difference". The report recommendations have not been implemented.
Anti-discrimination law: "Intersex status" became a protected attribute in the federal Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act on 1 August 2013, distinguishing intersex status from gender identity, sexual orientation, sex, and disability. It defines intersex as:
intersex status means the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male.
The Act facilitates exemptions in competitive sport but does not support exemptions on religious grounds.
Access to same rights as other men/women: Australia's anti-discrimination protections facilitate exemptions in competitive sport.
Australian laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.
Third sex classifications: Australian research has shown that 19% of people born with atypical sex characteristics selected an "X" or "other" classification, while 52% are women and 23% men and 6% unsure.
Australian federal guidelines enable all people to identify gender as male, female or X on federal documents, including passports. Documentary evidence must be witnessed by a doctor or psychologist, but medical intervention is not required. Alex MacFarlane received the first Australian passport with an 'X' sex descriptor, reported in January 2003.
Birth certificates are a State and Territory issue in Australia. Organisation Intersex International Australia states that identification changes are managed as an administrative correction. Alex MacFarlane is believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, reported in January 2003.
Anti-discrimination law: India does not have specific laws for intersex people.
Access to same rights as other men/women: Multiple Indian athletes have been subjected to humiliation, discrimination and loss of work and medals following sex verification. Middle-distance runner Santhi Soundarajan, who won the silver medal in 800 m at the 2006 Asian Games in Doha, Qatar, was stripped of her medal and later attempted suicide. Track athlete Pinki Pramanik was accused by a female roommate of rape and later charged, gender tested and declared male, though she and other medical experts dispute these claims. Such testing is controversial: Indian athlete Dutee Chand won a case against the IAAF in 2015, enabling women athletes with high testosterone levels to compete as women, on the basis that there is no clear evidence of performance benefits. In 2016, sports clinicians Genel, Simpson and de la Chapelle stated, "One of the fundamental recommendations published almost 25 years ago ... that athletes born with a disorder of sex development and raised as females be allowed to compete as women remains appropriate".
Access to changes in binary sex marker: For people who need to change gender, the case of National Legal Services Authority v. Union of India allows this by self determination. Actions in 2015 by gender rights organization Srishti Madurai seek to include intersex people in legislation on gender recognition for transgender people.
Access to changes in binary sex marker: A 2016 report on the status and histories on intersex people in Nepal reported that "Intersex people cannot amend the name or gender marker on birth certificates and have difficulties changing documents including citizenship and educational certificates and transcripts if wanted".
New Zealand
Prohibition of harmful practices: In October 2016, the UN Committee on the Rights of the Child issued observations on practices in New Zealand, including to ensure "that no one is subjected to unnecessary medical or surgical treatment during infancy or childhood, guaranteeing the rights of children to bodily integrity, autonomy and self-determination". A 2016 Intersex Roundtable by the Human Rights Commission on genital "normalizing" surgeries found that there was a lack of political will to address surgeries, and concerns with service delivery to parents and families, the development of legislative safeguards, and a need to test the right to bodily autonomy against the Bill of Rights Act.
Access to same rights as other men/women: Material presented by the Australasian Paediatric Endocrine Group to the Australian Senate in 2013 showed New Zealand to be a regional outlier in cases of congenital adrenal hyperplasia, with genital surgical interventions favoured on infant girls aged less than 6 months. New Zealand laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.
Third sex classifications: New Zealand passports are available with an 'X' sex descriptor. These were originally introduced for people transitioning gender. Birth certificates are available at birth showing "indeterminate" sex if it is not possible to assign a sex. The New Zealand Department of Internal Affairs states, "A person's sex can be recorded as indeterminate at the time of birth if it cannot be ascertained that the person is either male or female, and there are a number of people so recorded."
Thailand
Access to changes in binary sex marker: Intersex persons who need to change sex assignment are able to "‘correct’ their honorific titles if they have undergone surgery," following action by the country's National Human Rights Commission.
Access to changes in binary sex marker: Since a 2008 decree, intersex persons who wish to change sex assignment have been able to do so, subject to surgeries "at the earliest age". In 2017, a new law will come into effect enabling changes to sex assignment on the basis of "sex disability or their sex is not defined and requires medical intervention".
Bosnia and Herzegovina
Since August 1, 2016 Bosnia-Herzegovina anti-discrimination laws explicetly protect intersex people, that is listed as "sex characteristics".
Finland
Anti-discrimination law: Since 2015, the Act on Equality between Women and Men includes "gender features of the body" within its definition of gender identity and gender expression, which are the prohibited grounds under the act, meaning that discrimination on these basics is prohibited.
Reparations:Two legal cases seeking reparations for unwanted, harmful medical interventions have succeeded, those of Christiane Völling and Michaela Raab. Both were adults at the time of the medical interventions. There appear to be no statutory provisions offering reparations.
Third sex classifications: In November 2013, Germany became the first European country to allow "indeterminate" sex, requiring this where a child may not be assigned male or female. A report by the German Ethics Council stated that the law was passed because, "Many people who were subjected to a 'normalizing' operation in their childhood have later felt it to have been a mutilation and would never have agreed to it as adults." The move is controversial with many intersex advocates in Germany and elsewhere suggesting that it might encourage surgical interventions. The Council of Europe Issue Paper on intersex restates these concerns:
Human rights practitioners fear that the lack of freedom of choice regarding the entry in the gender marker field may now lead to an increase in stigmatisation and to "forced outings" of those children whose sex remains undetermined. This has raised the concern that the law may also lead to an increase in pressure on parents of intersex children to decide in favour of one sex.
Since 24 December 2015, Greece prohibits discrimination and hate crimes based on "sex characteristics".
Ireland
Access to changes in binary sex marker: On July 15, 2015, Ireland passed a bill that allows persons aged over 18 to change legal gender from male to female or female to male by self-determination, without requiring medical intervention.
Anti-discrimination law: Since 1 September 2015, Discrimination (Jersey) Law 2013 includes intersex status within its definition of sex. Sex is one of the prohibited grounds under the act, meaning that discrimination on this basis is prohibited. The act provides that:
"Sex"
(1) Sex is a protected characteristic.
(2) In relation to the protected characteristic –
(a) a reference to a person who has that characteristic is a reference to a man, a woman or a person who has intersex status;
(b) a reference to persons who share the characteristic is a reference to persons who are of the same sex.
(3) In this paragraph, a person has intersex status if the person has physical, chromosomal, hormonal or genetic features that are –
(a) neither wholly male or female;
(b) a combination of male or female; or
(c) neither male nor female
Prohibition of harmful practices and anti-discrimination law: In April 2015, Malta passed a Gender Identity Gender Expression and Sex Characteristics Act that protects intersex people from discrimination on grounds of "sex characteristics", and also recognizes a right to bodily integrity and physical autonomy.
"sex characteristics" refers to the chromosomal, gonadal and anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and/or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and/or structure.
The Act was widely welcomed by civil society organizations.
Access to changes in binary sex marker and third sex classifications: At the same, Malta introduced new provisions allowing applicants to change their gender identity documents by a simple administrative method. Malta also permits an "X" option on identification documents.
Access to changes in binary sex marker: The United Kingdom does not permit intersex people to change sex classification, except by declaring that they are transgender and following transgender medical protocols and a diagnosis of gender dysphoria.
Prohibition of harmful practices: In October 2013, the Australian Senate published a report entitled Involuntary or coerced sterilisation of intersex people in Australia. The Senate found that "normalising" surgeries are taking place in Australia, often on infants and young children, with preconceptions that it described as "disturbing": "Normalising appearance goes hand in hand with the stigmatisation of difference". The report recommendations have not been implemented.
Anti-discrimination law: "Intersex status" became a protected attribute in the federal Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act on 1 August 2013, distinguishing intersex status from gender identity, sexual orientation, sex, and disability. It defines intersex as:
intersex status means the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male.
The Act facilitates exemptions in competitive sport but does not support exemptions on religious grounds.
Access to same rights as other men/women: Australia's anti-discrimination protections facilitate exemptions in competitive sport.
Australian laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.
Third sex classifications: Australian research has shown that 19% of people born with atypical sex characteristics selected an "X" or "other" classification, while 52% are women and 23% men and 6% unsure.
Australian federal guidelines enable all people to identify gender as male, female or X on federal documents, including passports. Documentary evidence must be witnessed by a doctor or psychologist, but medical intervention is not required. Alex MacFarlane received the first Australian passport with an 'X' sex descriptor, reported in January 2003.
Birth certificates are a State and Territory issue in Australia. Organisation Intersex International Australia states that identification changes are managed as an administrative correction. Alex MacFarlane is believed to be the first person in Australia to obtain a birth certificate recording sex as indeterminate, reported in January 2003.
Anti-discrimination law: India does not have specific laws for intersex people.
Access to same rights as other men/women: Multiple Indian athletes have been subjected to humiliation, discrimination and loss of work and medals following sex verification. Middle-distance runner Santhi Soundarajan, who won the silver medal in 800 m at the 2006 Asian Games in Doha, Qatar, was stripped of her medal and later attempted suicide. Track athlete Pinki Pramanik was accused by a female roommate of rape and later charged, gender tested and declared male, though she and other medical experts dispute these claims. Such testing is controversial: Indian athlete Dutee Chand won a case against the IAAF in 2015, enabling women athletes with high testosterone levels to compete as women, on the basis that there is no clear evidence of performance benefits. In 2016, sports clinicians Genel, Simpson and de la Chapelle stated, "One of the fundamental recommendations published almost 25 years ago ... that athletes born with a disorder of sex development and raised as females be allowed to compete as women remains appropriate".
Access to changes in binary sex marker: For people who need to change gender, the case of National Legal Services Authority v. Union of India allows this by self determination. Actions in 2015 by gender rights organization Srishti Madurai seek to include intersex people in legislation on gender recognition for transgender people.
Access to changes in binary sex marker: A 2016 report on the status and histories on intersex people in Nepal reported that "Intersex people cannot amend the name or gender marker on birth certificates and have difficulties changing documents including citizenship and educational certificates and transcripts if wanted".
New Zealand
Prohibition of harmful practices: In October 2016, the UN Committee on the Rights of the Child issued observations on practices in New Zealand, including to ensure "that no one is subjected to unnecessary medical or surgical treatment during infancy or childhood, guaranteeing the rights of children to bodily integrity, autonomy and self-determination". A 2016 Intersex Roundtable by the Human Rights Commission on genital "normalizing" surgeries found that there was a lack of political will to address surgeries, and concerns with service delivery to parents and families, the development of legislative safeguards, and a need to test the right to bodily autonomy against the Bill of Rights Act.
Access to same rights as other men/women: Material presented by the Australasian Paediatric Endocrine Group to the Australian Senate in 2013 showed New Zealand to be a regional outlier in cases of congenital adrenal hyperplasia, with genital surgical interventions favoured on infant girls aged less than 6 months. New Zealand laws and policies that prohibit female genital mutilation explicitly permit "normalizing" surgeries on intersex infants and girls.
Third sex classifications: New Zealand passports are available with an 'X' sex descriptor. These were originally introduced for people transitioning gender. Birth certificates are available at birth showing "indeterminate" sex if it is not possible to assign a sex. The New Zealand Department of Internal Affairs states, "A person's sex can be recorded as indeterminate at the time of birth if it cannot be ascertained that the person is either male or female, and there are a number of people so recorded."
Thailand
Access to changes in binary sex marker: Intersex persons who need to change sex assignment are able to "‘correct’ their honorific titles if they have undergone surgery," following action by the country's National Human Rights Commission.
Access to changes in binary sex marker: Since a 2008 decree, intersex persons who wish to change sex assignment have been able to do so, subject to surgeries "at the earliest age". In 2017, a new law will come into effect enabling changes to sex assignment on the basis of "sex disability or their sex is not defined and requires medical intervention".
Bosnia and Herzegovina
Since August 1, 2016 Bosnia-Herzegovina anti-discrimination laws explicetly protect intersex people, that is listed as "sex characteristics".
Finland
Anti-discrimination law: Since 2015, the Act on Equality between Women and Men includes "gender features of the body" within its definition of gender identity and gender expression, which are the prohibited grounds under the act, meaning that discrimination on these basics is prohibited.
Reparations:Two legal cases seeking reparations for unwanted, harmful medical interventions have succeeded, those of Christiane Völling and Michaela Raab. Both were adults at the time of the medical interventions. There appear to be no statutory provisions offering reparations.
Third sex classifications: In November 2013, Germany became the first European country to allow "indeterminate" sex, requiring this where a child may not be assigned male or female. A report by the German Ethics Council stated that the law was passed because, "Many people who were subjected to a 'normalizing' operation in their childhood have later felt it to have been a mutilation and would never have agreed to it as adults." The move is controversial with many intersex advocates in Germany and elsewhere suggesting that it might encourage surgical interventions. The Council of Europe Issue Paper on intersex restates these concerns:
Human rights practitioners fear that the lack of freedom of choice regarding the entry in the gender marker field may now lead to an increase in stigmatisation and to "forced outings" of those children whose sex remains undetermined. This has raised the concern that the law may also lead to an increase in pressure on parents of intersex children to decide in favour of one sex.
Since 24 December 2015, Greece prohibits discrimination and hate crimes based on "sex characteristics".
Ireland
Access to changes in binary sex marker: On July 15, 2015, Ireland passed a bill that allows persons aged over 18 to change legal gender from male to female or female to male by self-determination, without requiring medical intervention.
Anti-discrimination law: Since 1 September 2015, Discrimination (Jersey) Law 2013 includes intersex status within its definition of sex. Sex is one of the prohibited grounds under the act, meaning that discrimination on this basis is prohibited. The act provides that:
"Sex"
(1) Sex is a protected characteristic.
(2) In relation to the protected characteristic –
(a) a reference to a person who has that characteristic is a reference to a man, a woman or a person who has intersex status;
(b) a reference to persons who share the characteristic is a reference to persons who are of the same sex.
(3) In this paragraph, a person has intersex status if the person has physical, chromosomal, hormonal or genetic features that are –
(a) neither wholly male or female;
(b) a combination of male or female; or
(c) neither male nor female
Prohibition of harmful practices and anti-discrimination law: In April 2015, Malta passed a Gender Identity Gender Expression and Sex Characteristics Act that protects intersex people from discrimination on grounds of "sex characteristics", and also recognizes a right to bodily integrity and physical autonomy.
"sex characteristics" refers to the chromosomal, gonadal and anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and/or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and/or structure.
The Act was widely welcomed by civil society organizations.
Access to changes in binary sex marker and third sex classifications: At the same, Malta introduced new provisions allowing applicants to change their gender identity documents by a simple administrative method. Malta also permits an "X" option on identification documents.
Access to changes in binary sex marker: The United Kingdom does not permit intersex people to change sex classification, except by declaring that they are transgender and following transgender medical protocols and a diagnosis of gender dysphoria.
