The European Commission has just released a ground-breaking report on discrimination against intersex and trans people, titled “Discrimination against trans and intersex people on the grounds of sex, gender identity and gender expression”.
It’s an excellent study, both in documenting legislation, in its conclusions and in how it manages to address two distinct groups of people, each with our own characteristics. It provides a firm base for future action, and we commend it to readers.
Discrimination against intersex people is a particularly complex form of sex discrimination. Unfortunately, little work has been undertaken to explore the human rights issues and attempt to address them. This can be seen through the fact that while the Yogyakarta Principles elaborately explain how international human rights principles apply on the ground of sexual orientation and gender identity, they only contain one mention of intersex people in a general phrase. Moreover, even when intersex people are referred to, this is often done incorrectly either under the trans umbrella or on the ground of gender identity and gender expression.
Most of the report relates to trans people, but it’s made clear that this is because there is simply less data on the experience of intersex people. There have been no cases brought to national equality bodies, although the case of Christine Völling is given some due attention.
The report identifies Germany and Finland as having the most advanced protection. In Germany, for example:
…the ground of sexual identity is interpreted broadly covering the whole LGBTI spectrum, which is usually covered under the grounds of sexual orientation for heterosexual, gay, lesbian and bisexual people; gender identity and gender expression for cisgender and trans people; and sex for intersex people (along with men and women).
The report goes further, to examine domestic legislation:
To date, the only known explicit reference to intersex people in domestic legislation is found in Scotland’s Offences (Aggravation by Prejudice) (Scotland) Act 2009,211 whereby Art. 2(8) includes “intersexuality” within the meaning of “transgender identity”.
While the provision of protection against bias crime is a milestone, the inclusion of intersex under trans identity shows that the legislator was not fully aware of the fact that intersex people constitute a separate category to trans people. Indeed the invisibility of intersex people in European and national legislation speaks volumes about the lack of knowledge about intersex people and their invisibility in society as well as their lack of protection against human rights violations.
The report concludes:
…In a situation where an extension of the EU’s competences through a formal Treaty revision is unlikely, the only pragmatic approach at the level of EU law itself is to argue that the term “discrimination on grounds of sex” should be interpreted even wider, so as to include more forms of discrimination on grounds of gender identity as well as discrimination on grounds of gender expression and discrimination against intersex people. Germany’s wide scope of the ground of sexual identity may serve as a good model in this regard…