Johanna Westeson - The ICHRP

However, the Court reconciles them by the statement that transsexuality is a disease if the
person involved herself perceives it as such, which was the case in Van Kück. In a curious
way this approach protects both the right to sexual self-determination for the individual
and the medicalized view of transsexuality, on which (according to the Court) the right to
reimbursement relies.
Both cases discussed here suggest that the Court looks favorably upon the right for
transsexuals to live fully according to their preferred gender. Here it is important to point
out that the Court so far only has addressed the rights of either post-operative transsexual
individuals or individuals seeking surgery. The Court has not addressed the right to
treatment, or the right to change of legal gender, for pre-operative transgendered persons.
The Court has, thus, not ruled that there is a right to ‘gender identity’ per se. Until such a
statement is made, the contradiction between self-determination of gender identity and the
medicalized approach will not be fully solved. Again, the enactment of permissive laws
and policies on the domestic level, such as in Spain and to some extent in Finland and the
United Kingdom, constitute an approach that more clearly embraces the right to gender
identity as such.
4C. INTERSEX
1. Introduction 477
Persons born with genitalia or bodies deemed gender ambiguous or gender nonconforming
fall under the broad label of ‘persons with intersex conditions.’ The causes of
these developments are diverse, including a variety of genetic anomalies and hormonal
over- and under-exposures during fetal development, many of which are discovered shortly
after birth or during childhood. Although most manifestations are not life-threatening, it
has become common to alter the infant’s or child’s body, particularly sexual organs, to
conform to gendered physical norms, including through (repeated) surgeries, hormonal
interventions, and other measures. The rationale for gender reassignment or ‘normalizing’
surgery for minors includes reducing gender confusion for the child and parents,
responding to parental concerns that the child be normal and accepted, and to promote the
child’s social integration and happiness.
Until recently, states have generally given minimal attention to these interventions,
requiring only parental consent (assumed to be motivated by the ‘best interests of the
child’) and in conformity with locally accepted, general standards of medical care. Intersex
advocates have emphasized the insufficiency of these conventional standards, highlighting
the lack of the child’s consent for drastic interventions that are irreversible; life-long in
their consequence for physical and mental health, particularly sexual response; and the
absence of medical justification for imposing these interventions in childhood, before the
person has the opportunity and mature judgment to determine the advantages and
disadvantages of these procedures.
Legally and politically, the claims of persons with intersex conditions engage not only with
children’s rights, but also more generally with claims to the highest attainable standard of
health, non-discrimination, and autonomy-privacy rights around determining one’s own
477 Drawn in part from general WHO chapeau text elaborated by Alice M. Miller and Carole S. Vance.
160