Accommodating Intersexuality in European Union Anti‐Discrimination Law

• Date: 01 March 2015
• Author: Mitchell Travis
• Published date: 01 March 2015
• DOI: http://doi.org/10.1111/eulj.12111

Accommodating Intersexuality in

European Union Anti-Discrimination Law

Mitchell Travis*

Abstract: This article considers the relationship between EU anti-discrimination law and

intersexuality. Recent changes in German legislation that recognise intersexuality have

prompted consideration of sex and gender throughout Europe. This article considers

some of the disadvantages in the way the German legislation has been adopted and

attempts to remedy them through the existent Recast Directive. The article rejects the

current binary approach to sex and gender and recommends a broader interpretation

that understands sex as a spectrum or continuum. It concludes that anti-discrimination

law may be a more suitable realm for questions of intersex to be raised than mandatory

state documentation. Anti-discrimination law is preferable, it is submitted, because it

offers individuals an opt-in model, which does not require any medical ‘proof’. Similarly,

anti-discrimination law offers activists a f‌luid site of resistance that is not based on

medicine or the potential f‌ixity of the birth certif‌icate.

If we choose, over a period of time, to let mixed-gender bodies and altered patterns of gender

behaviour become visible, we will have . . . chosen to change the rules of cultural intelligibility.1

Enhancing the quality of life for people with an intersex condition requires a multipronged attack. The

productive dialogues that have started with medical experts need to be enhanced. Society needs to be

educated about the problems surrounding the current treatment of intersex conditions. Legal argu-

ments need to be developed to ensure that the rights of people with an intersex condition are protected.

Most important, people interested in enhancing the lives of marginalized groups need to work together

to develop mutually benef‌icial strategies. Activists concerned with ending subordination and

marginalization of people whose bodies or activities do not f‌it societal norms can play a critical role in

this process.2

I Introduction

This article focuses on the possibilities for legal recognition of intersexuality through

existing EU anti-discrimination law. It concludes that anti-discrimination law may be

a more suitable realm for questions of intersex to be raised than mandatory state

documentation such as birth certif‌icates, driving licences and passports. Anti-

discrimination law is preferable, it is argued, because it offers individuals an opt-in

* Lecturer, School of Law, University of Exeter, EX4 4RJ, UK. I am very grateful for the comments of

Karen McAuliffe and the two anonymous reviewers on earlier versions of this paper. I am also thankful

to IntersexUK for their many conversations on these topics. Any mistakes remain my own.

1A. Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Identity (Basic Books,

2000), at 76.

2J.A. Greenberg, Intersexuality and the Law: Why Sex Matters (New York University Press, 2012), at

135.

bs_bs_banner

European Law Journal, Vol. 21, No. 2, March 2015, pp. 180–199.

© 2014 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

model, which does not require any medical ‘proof’. Similarly, anti-discrimination law

offers activists a f‌luid site of resistance that is not based on medicine, or the potential

f‌ixity of the birth certif‌icate. This article attempts to navigate the complex relationship

between EU anti-discrimination law and intersexuality in light of the recent changes

to German law.3More precisely, the Treaties and the ‘Recast’ Equal Treatment

Directive (2006/54) are interrogated for their ability to accommodate intersex persons

under the ambit of ‘sex’ discrimination. For the purposes of this study, intersexuality

is taken to include a range of medical conditions that fall outside of—and subse-

quently challenge—binary sex models.4Recent changes in German legislation recog-

nising intersexuality as a third sex category give this project a greater urgency.5Whilst

the German legislation has been positive in terms of highlighting intersex issues to a

largely unaware public, it has the potential to raise a different set of problems, which

will be explored further in this paper. Brief‌ly, these can be identif‌ied as the (further)

medicalisation of intersexuality, potential problems with leaving this new mandatory

gender category and subsequent issues around marriage.6

II What is Intersexuality?

Intersex is a term that encompasses a wide range of physical conditions that at the

gonadal, hormonal or chromosomal level gives the individual a combination of mas-

culine and feminine characteristics.7Medically, these conditions are grouped together

under the heading ‘disorders of sex development’. Intersex, however, seems to be the

preferred terminology used by patient-advocates and organisations that work in this

area.8In part, this is because of a profound mistrust of the medical profession and its

conf‌lation of normativity with medical benef‌it.9In this article, the term intersex is

adopted rather than the term disorders of sex development. This is due to the conf‌lict

between the medicialisation implied by the term ‘disorders of sex development’ and

3The Gesetz zur Änderung personenstandsrechtlicher Vorschriften (Personenstandsrechts-

Änderungsgesetz—PStRÄndG) (2013).

4Including, for example, partial androgen insensitivity syndrome, androgen insensitivity syndrome, con-

genital adrenal hyperplasia, Klinefelter syndrome, ovo-testes, Swyer syndrome and Turner syndrome.

For more information, see http://www.isna.org/faq/conditions/ (last accessed 7 January 2014).

5The Gesetz zur Änderung personenstandsrechtlicher Vorschriften (Personenstandsrechts-

Änderungsgesetz—PStRÄndG) (2013).

6See, for example, the concerns raised by OII Australia ‘German proposals for a “third gender” on birth

certif‌icates miss the mark’, http://www.oii.org.au/23183/germany-third-gender-birth-certif‌icates/ (last

accessed 27 November 2013).

7Intersex conditions include partial androgen insensitivity syndrome, androgen insensitivity syndrome,

congenital adrenal hyperplasia, Klinefelter syndrome, ovo-testes, Swyer syndrome and Turner syn-

drome. For a full list, see http://www.isna.org/faq/conditions (last accessed 22 November 2013).

Whether or not some of these def‌initions can be considered ‘intersex’ is contested. As Dreger and

Herndon note ‘. . . many physicians do not count Klinefelter syndrome as intersex, just as they do not

count Turner’s syndrome . . . because in many physicians’ minds, neither results in enough external

sex-atypical development to count’. A.D. Dreger and A.M. Herndon, ‘Progress and Politics in the

Intersex Rights Movement’, (2009) 15 GLQ: A Journal of Gay and Lesbian Studies 199, 212.

8http://www.intersexuk.org, http://www.oii.org.au (last accessed 8 January 2014).

9M. Holmes, ‘Introduction; Straddling Past, Present and Future’, in M. Holmes (ed), Critical Intersex

(Ashgate, 2009), at 1. M. Travis, ‘Non-Normative Bodies, Rationality and Legal Personhood’, (2014)

Medical Law Review [Online Advance Access].

March 2015 Accommodating Intersexuality in EU Anti-Discrimination Law

181

© 2014 John Wiley & Sons Ltd.