The Legal Status of Intersex Persons

This book provides a basis for discussion regarding all legal aspects concerning persons born with sex characteristics that do not belong strictly to male or female categories, or that belong to both at the same time. It contains contributions from medical, psychological and theological perspectives, as well as national legal perspectives from Germany, Australia, India, the Netherlands, Columbia, Sweden, France and the USA. It explores international human rights aspects of intersex legal recognition and also features chapters on private international law and legal history.
Editor(s):
Jens M. Scherpe, Anatol Dutta, Tobias Helms
book | published | 1st edition
September 2018 | xii + 536 pp.

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€69.-

ISBN 9781780684758


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ISBN 9781780687704

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Details

The Legal Status of Intersex Persons provides a basis for discussion regarding all legal aspects concerning persons born with sex characteristics that do not belong strictly to male or female categories, or that belong to both at the same time. It contains contributions from medical, psychological and theological perspectives, as well as national legal perspectives from Germany, Australia, India, the Netherlands, Columbia, Sweden, France and the USA. It explores international human rights aspects of intersex legal recognition and also features chapters on private international law and legal history.

The book is a timely one. Until very recently, the legal gender of a person – both at birth and later in life – in virtually all jurisdictions had to be recorded as either male or female; the laws simply did not allow any other option, and, in many cases, changing the recorded gender was difficult or impossible. However, there are many cases where this gender binary is unable to capture the reality of a person’s physical presentation and/or perception of self. Consequently, this gender binary is increasingly being challenged and several jurisdictions have begun to reform their gender status laws.

For example, in 2013 Germany became the first Western jurisdiction in modern times to introduce legislation allowing a person’s gender to be recorded as ‘indeterminate’ at birth and thus give them a legal gender status other than male or female for all intents and purposes. However, this legislation has proved problematic in many ways and rightly was subject to pertinent criticism. In 2017 the German Constitutional Court then held that these rules were in violation of the German constitution as they only allowed a non-recognition, as opposed to a positive recognition of a gender other than male or female, and mandated law reform. Similarly, the Austria Constitutional Court held in June 2018 that current civil status laws had to be interpreted to allow registration of alternative gender identities. Therefore two European jurisdictions will now have legal gender recognition beyond the binary.

This book looks at law reform taking place around the world, with diverse perspectives from relevant fields, to provide the reader with a comprehensive analysis of the legal status of intersex persons and related issues.

With contributions by Nina Althoff (German Institute of Human Rights, Berlin, Germany), Marjolein van den Brink (School of Law, University of Utrecht, The Netherlands), Morgan Carpenter (Sydney Health Ethics, University of Sydney, Australia; Co-executive Director of Intersex Human Rights Australia; GATE, New York, USA), Milton Diamond (John A. Burns School of Medicine, University of Hawai’I, USA), Duncan Dormor (United Society Partners in the Gospel, London, UK), Peter Dunne (Faculty of Law, University of Bristol, UK), Anatol Dutta (Faculty of Law, Ludwig Maximilians University of Munich, Germany), (Claire Fenton-Glynn (Faculty of Law, University of Cambridge, UK), Jameson Garland (Faculty of Law, Uppsala University, Sweden), Dan Christian Ghattas (Executive Director of Organisation Intersex International Europe, Berlin, Germany), Julie Greenberg (Thomas Jefferson School of Law, San Diego, USA), Tobias Helms (Faculty of Law, Philipps University Marburg, Germany), Joe Herbert (John van Geest Centre for Brain Repair, Department of Clinical Neurosciences, University of Cambridge, UK), Ieuan Hughes (Department of Paediatrics, University of Cambridge, UK), Moshe Lavee (Department of Jewish History and Thought, University of Haifa, Israel), Thomas Meyer (Federal Ministry of Justice and Consumer Protection, Berlin, Germany), Tanya Ni Mhuirtile (School of Law and Government, Dublin City University, Ireland), Benjamin Moron-Puech (Faculty of Law, Pantheon-Assas University Paris, France), Stefano Osella (Department of Law, European University Institute, Florence, Italy), Ruth Rubio-Marin (Faculty of Law, University of Sevilla, Spain; School of Transnational Governance, European University Institute, Florence, Italy), Tali Artman Partock (Faculty of Divinity, University of Cambridge, UK), Vickie Pasterski (Department of Psychology, University of Cambridge, UK), Walter Pintens (Faculty of Law, Catholic University of Leuven, Belgium; Faculty of Law, Saarland University, Germany), Kirsten Sandberg (Faculty of Law, University of Oslo, Norway), Jens M. Scherpe (Faculty of Law, University of Cambridge, UK; University of Hong Kong; Aalborg University, Denmark), Smita Shah (Department of Law, European University Institute, Florence, Italy), and Alain Wijffels (Faculty of Law, Catholic University of Leuven and Catholic University of Louvain, Belgium; Faculty of Law, University of Leiden, The Netherlands; Centre d’Histoire Judiciaire, France).

Chapters

Table of contents and preliminary pages (p. 0)

The Legal Status of Intersex Persons: An Introduction (p. 1)

Malta Declaration - Statement of the Third International Intersex Forum of 1 December 2013 (p. 7)

Darlington Statement: Joint Consensus Statement from the Intersex Community Retreat in Darlington, March 2017 (p. 11)

Vienna Statement (Statement of the First European Intersex Community Event, Vienna, 30th - 31st of March 2017) (p. 19)

Medicine and Psychology

Biology of Fetal Sex Development (p. 23)

Intersex in the Brain: What Neuroscience can Tell the Law about Gender Identity (p. 45)

Gender Identity and Intersex Conditions (p. 65)

Evidence-Based Reviews of Medical Interventions Relative to the Gender Status of Children with Intersex Conditions and Differences of Sex Development (p. 81)

Theology and Legal History

Intersex in the Christian Tradition: Personhood and Embodiment (p. 103)

Four Sexes, Two Genders: The Rabbinic Move from Legal to Essentialist Polarisation of Identities (p. 165)

Intersex: Some (Legal-)Historical Background (p. 181)

Transgender, Transsexuality and Intersex

Lessons from the Legal Development of the Legal Status of Transsexual and Transgender Persons (p. 201)

Towards Trans and Intersex Equality: Conflict or Complementarity? (p. 217)

National Legal Developments

The Legal Status of Intersex Persons in Australia (p. 241)

The Legal Status of Intersex Persons in Sweden (p. 255)

The Legal Status of Intersex Persons in India (p. 281)

The Legal Status of Intersex Persons in the Netherlands (p. 293)

The Legal Status of Intersex Persons in France (p. 305)

Between Rights and Pragmatism: Intersexuality Before the Colombian Constitutional Court (p. 319)

The Legal Status of Intersex Persons in the United States (p. 339)

The Legal Status of Intersex Persons in Malta (p. 357)

The 2013 German Law: Analysis and Criticism (p. 369)

The German Inter-Ministerial Working Group on Inter- and Transsexuality (p. 383)

Gender Diversity in Law: The German Perspective (p. 393)

Private International Law Aspects of Intersex

Private International Law Aspects of Intersex (p. 413)

Intersex and Human Rights

Standing Up for the Human Rights of Intersex People (p. 427)

The 'Normalisation' of Intersex Bodies and 'Othering' of Intersex Identities (p. 445)

Intersex Children and the UN Convention on the Rights of the Child (p. 515)