By Charly Derave, PhD Researcher at the Perelman Centre for legal philosophy (ULB), and Hania Ouhnaoui, coordinator of the Equality Law Clinic (ULB).
On 24 February 2021, the Equality Law Clinic (ELC) of the Université Libre de Bruxelles and the Human Rights Centre (HRC) of Ghent University submitted a third-party intervention to the European Court of Human Rights in the case M. v. France. This case is the first opportunity for the Court to rule on “normalising” medical treatments of intersex persons, i.e. those who are born with sex characteristics that do not conform to the (medical) definition of the male and female sex. They represent between 1% and 2% of the population. It is because of the “variations” in their sex characteristics that, even though they are healthy, these persons often undergo enforced corrective surgeries and hormonal treatments to “normalise” their bodies and to anchor them in the binarity of sex and gender.
The applicant, M., is born in 1977. They claim that between 1978 and 1993 they underwent five surgical operations and medical treatments (including bilateral castration, clitoridoplasty, vaginoplasty and vulvoplasty). These were intended to make their sex characteristics “female”, even though their intersex “condition” did not put their health at risk.
The applicant argues that they had never been informed of the purpose of these treatments, nor of their intersex “condition”. They only became aware of it at the age of 23 when they accidentally intercepted a letter that was not intended for them. According to their clinical psychologist, these treatments caused them serious psychological and psychiatric problems, including post-traumatic shock, and were tantamount to mutilations that ruined their childhood, their family relationships, their studies and deprived them of offspring. As a result of the feminisation programme imposed on them without their informed consent, M. has been recognised as a disabled worker. They now live on the disability benefits they receive and face major socio-economic difficulties.
On 22 November 2015, the applicant filed a criminal complaint, inter alia for intentional and habitual violence against a person under 15 or a vulnerable person. On 22 April 2016, the judge in charge of their case rejected it because it was time-barred. The decision was upheld on appeal, as well as by the Court of Cassation in a judgment of 6 March 2018. Before the ECtHR, the applicant argues that France has failed to fulfil its positive obligation under Article 3 of the Convention to take effective measures to protect vulnerable intersex individuals, such as intersex children, from ill-treatments perpetrated by other individuals
Third-party intervention arguments
Social, medical, and legal context of normalising medical treatments
- “Normalising” medical treatments
Our TPI explains that “sex” has traditionally been perceived and defined as a biological concept that refers to the set of primary and secondary sex characteristics of a person. It categorises these characteristics according to a presumed irrefutable – quod non – binary model (“male” or “female”) that arguably represents the social “norm”.
This social “norm” has pervaded the medical community for the past seven decades. Health professionals have become interested in the biological processes that cause “variations” in sex characteristics. They have considered intersex persons to be “abnormal” because they resist the binary categorisation of sex as they have “atypical” sex characteristics.
In our TPI, we point out that, under experimental deterministic theories, health professionals have pathologised “variations” in sex characteristics. They thereby legitimised the imposition of corrective surgeries and hormonal treatments on intersex persons who are generally underage and healthy. According to health professionals, the earlier an intersex child is operated on, the better. They firstly argue that the sex tissues would be of better quality and available in greater quantity. Secondly, they assume that psycho-social stigmas would be prevented. Thirdly, “normal” sex characteristics would encourage the development of a “normal” (read cisgender) gender identity and expression and a “normal” (read heterosexual) sexual orientation.
- The international and European emerging trend
Our TPI demonstrates that a clear international and European trend towards the prohibition of such treatments has emerged, which is visible at the national level as well.
Principle 32 of the Yogyakarta Principles +10 states that:
“Everyone has the right to bodily and mental integrity, autonomy and self-determination irrespective of […] sex characteristics. Everyone has the right to be free from torture and cruel, inhuman and degrading treatment or punishment on the basis of […] sex characteristics. No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless necessary to avoid serious, urgent and irreparable harm to the concerned person”.
The UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment urged States “to repeal any law allowing intrusive and irreversible treatments, including forced genital-normalizing surgery, […] when enforced or administered without the free and informed consent of the person concerned”. His recommendation was endorsed by the UN High Commissioner for Human Rights. In 57 Concluding Observations on the periodic reports of States, the UN Committees expressed “serious concerns” about cosmetic and aesthetic medical interventions imposed on intersex children and persons without their informed consent. In a 2017 resolution, the Parliamentary Assembly of the Council of Europe ordered Member States to “prohibit medically unnecessary sex-“normalising” surgery, sterilisation and other treatments practised on intersex children without their informed consent”. The Council of Europe’s Commissioner for Human Rights advocated for a similar position in 2015. In a 2019 resolution, the European Parliament “strongly condemn[ed] sex-normalisation treatments and surgery”.
In Malta, Portugal, several autonomous communities in Spain and recently in Belgium, legislators intervened to protect the human rights of intersex persons. Elsewhere in the world, 36 states asked the UN Human Rights Council to take urgent measures to protect the bodily autonomy of intersex persons.
Prohibition of discrimination
In our TPI, we suggest the Court to rule on the case from the perspective of the principle of non-discrimination guaranteed by Article 14 of the Convention and to examine simultaneously – or separately, but successively – the violation of this provision in combination with Article 3. “Normalising” medical treatments are imposed on intersex persons because of their “atypical” sex characteristics. As these people constitute a vulnerable minority, they are victims of structural discriminatory practices which, in our view, deserve to be examined in depth by the Court.
- Difference in treatment
We contend that intersex persons are treated differently from dyadic persons (i.e. persons whose sex characteristics fully fit the [medical] definition of the sexes) because they undergo “normalising” medical treatments, despite the fact that the “variations” in their sex characteristics are the result of a natural and biological process, for which there is absolutely no reason to medically intervene (except in situations of medical emergency).
- Sex characteristics as a ground of discrimination
In our view, this difference in treatment is based on “sex characteristics”. Since Article 14 explicitly forbids discrimination on the basis of sex, and “sex characteristics” are part of the definition of “sex”, differences in treatment on the basis of sex characteristics are implicitly covered by said Article.
We nevertheless point out that the Court could decide for various reasons to extend the list of grounds of discrimination – which is indicative and not exhaustive (Engel and Others v. the Netherlands, §72) – to include “sex characteristics”, as it did for sexual orientation in 1999 (Salgueiro Da Silva Mouta v. Portugal, §28) and for gender identity in 2015 (Identoba and Others v. Georgia, §96).
- Restriction of the margin of appreciation
As for the margin of appreciation, our argument is based on the innovative approach used by the Court in Kiyutin v. Russia and Alajos Kiss v. Hungary. In both cases, the Strasbourg judges link the “very weighty reasons test” to the vulnerability of the group that is discriminated (Kiyutin v. Russia, §63; Alajos Kiss v. Hungary, §42). By relying on M.C. and A.C. v. Romania, in which the Court acknowledges that “the LGBTI community in the respondent State finds itself in a precarious situation, being subject to negative attitudes towards its members” (M.C. and A.C. v. Romania, §§114 and 118), we argue that LGBTI community as a whole – including intersex persons – enjoys the protection given by the Court to vulnerable persons.
Several considerations strengthen our argument. Firstly, intersex persons are a minority group within the population as a whole and are subject, because of their bodily diversity, to negative attitudes and prejudices expressed physically or verbally by dyadic persons. Secondly, the corrective surgeries and hormonal treatments at stake are, in the vast majority of cases, imposed on the bodies of minor children who, in the Court’s case-law, enjoy specific protection because of their age and vulnerability (Söderman v. Sweden, §81). Thirdly, “normalising” medical treatments are stereotypical practices that deny the personal experience of intersex persons. After identifying traces of these stereotypes in contemporary medical literature, we argue that these treatments have not – with some exceptions – pursued a medical or therapeutic aim. In our opinion, their purposes are social, psychosocial, cultural, or, even worse, cosmetic and aesthetic. They fully reinforce the presumed binarity of sex (and gender), heteronormativity and cisnormativity. Stereotypes have contributed to the substantial stigmatisation of intersex persons and their exclusion from the social order solely on the basis of their bodily diversity.
For all these reasons, our TPI invites the Court to restrict the margin of appreciation of the respondent State. In any case, the “very weighty reasons test” applies if the Court decides that the impugned difference in treatment is based on the ground of “sex”.
Discriminatory interference with the bodily autonomy of intersex persons
We claim in our TPI that discriminatory practices experienced by intersex persons have deleteriously impacted the enjoyment of the right to bodily autonomy guaranteed by Article 3 of the Convention.
- Threshold of severity
We argue that the Court should apply its case-law in which it has relaxed (or lowered) the level of the severity threshold required for discriminatory ill-treatments (Smith and Grady v. the United Kingdom, §121; Identoba and Others v. Georgia, §65; Aghdgomelashvili and Japaridze v. Georgia, §44 and §49) because the treatments at stake are merely the embodiment of stereotypes and prejudices.
We then submit that “normalising” medical treatments meet this (relaxed or lowered) threshold of severity, for at least two reasons.
Firstly, the consent of intersex persons (or of their parents when they are minors) is often not sought or is vitiated, and they are not even minimally involvedin the decision-making process. In a recent study conducted by the European Union Agency for Fundamental Rights, 62% (362 respondents) of all intersex people who received medical treatments or surgeries to alter their sex characteristics underwent corrective surgeries without their free and informed consent or that of their parents. This percentage rises to 49% for hormonal treatments and 47% for other types of treatments. In our opinion, this constitutes a violation of the right to bodily autonomy of (adult) intersex persons (V.C. v. Slovakia, §§106 and sub., and A.P., Garçon and Nicot v. France, §131). The Court has not yet ruled that minors enjoy the same right, but we argue that it would be desirable for the Court to move in this direction based on the UN Committee on the Rights of the Children’s 2013 General Comment. However, even when the parents’ consent issought, we point out that it may not be free and/or informed because of the social, familial, and medical pressures to which they are subjected.
Secondly, we submit in our TPI that “normalising” medical treatments have disastrously, irreversibly, and permanently breached the physical and mental integrity of intersex persons. Physical injuries are so severe that they sometimes render intersex persons disabled. In addition, non-consensual medical treatments have contributed to the marginalisation of intersex people by making them invisible.
To avoid these irreversible consequences on the bodily autonomy of the persons concerned, we advocate for the prohibition of treatments aimed at modifying or altering the sex characteristics of intersex children, when such treatments can be postponed until they can give their free, prior, and informed consent.
- Qualification of ill-treatments
“Normalising” medical treatments should be characterised as degrading because they discriminatorily degrade intersex persons to the point of preventing them from living in human dignity (Aghdgomelashvili and Japaridze v. Georgia, §42). However, our TPI points out that this qualification is neither sufficient, nor satisfactory. Insofar as the treatments at stake produce serious bodily harm as well as intense psychological consequences, and contribute to the social exclusion of particularly vulnerable persons, they must at the very least be qualified as inhuman (Kudla v. Poland, 26 October 2000, §92).
We finally point out that since the 2000s, there has been a trend to qualify “normalising” medical treatment as torture. Our argument is premised on, inter alia, the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’s 2016 Report. We contend that the inclusion of the discriminatory nature of “normalising” medical treatments in the analysis facilitates the qualification of torture.
 For the Equality Law Clinic, the team consisted of prof. Emmanuelle Bribosia, Charly Derave, Hania Ouhnaoui and prof. Isabelle Rorive.
 For the Human Rights Centre, the team consisted of prof. Eva Brems, Dr. Pieter Cannoot, Mattias Decoster, Sarah Schoentjes and Anne-Katrin Speck.
 The term “variations” is pejorative and pathologising, which justifies the use of quotation marks in this blogpost.
 Because the applicant’s gender identity is “fluctuant”, this blogpost will use gender neutral language and the gender neutral pronouns “they/them” to refer to the applicant.
 In this blogpost, “bodily autonomy” and “physical and mental integrity” are synonyms.