This is a landmark case for intersex rights within European law reform
As the year 2014 comes to a close historic reform is taking place within the Maltese law code. With the addition of sex characteristic’s to the Gender Identity, Gender Expression And Sex Characteristics Act, historic steps are being taken to bring forth an end to non-medically necessary, cosmetic genital surgeries on intersex infants driven by social expectations enforced by the binary sex model. A key factor of the new law pertaining to protection for intersex individuals can be found in article 15.1-15.2.
“15. (1) It shall be not be lawful for medical practitioners or other professionals to conduct any sex assignment treatment and, or surgical intervention on the sex characteristics of a minor which treatment and, or intervention can be deferred until the person to be treated can provide informed consent.
(2) In exceptional circumstances treatment may be effected once there is an agreement between the Interdisciplinary Team and the persons exercising parental authority or tutor of the minor who is still unable to provide consent: Provided that medical intervention which is driven by social factors without the consent of the individual concerned will be in violation of this Act.”
By making these procedures unlawful until the individual can provide informed consent Malta is taking vital steps to ensure that the individual’s primary rights to self- determination, bodily integrity and personal dignity are respected. For the first time in history intersex individuals will no longer be forced to endure arbitrary surgical sex assignment based on sociological factor’s. The past has seen national, theoretical and personal attitudes towards gender, surgical limitations and best guesses guide the process of gender assignment, of intersex infants worldwide, with dire sociological consequences and a lifetime of physical health complications for many following socially driven surgical intervention. With research showing that parental decision making is influenced greatly by information provided1, no adverse effects of non-surgical intervention being found2-6, poor surgical outcomes and satisfaction rates7 and almost no real research substantiating surgical intervention8 this timely law reform is finally acknowledging that purely social factors are being used as the basis for surgical interventions.
Malta’s express acknowledgement of the social factors driving the surgical intervention of intersex infant’s sex characteristic’s is to be applauded as a first, worldwide, in affording intersex infant’s protection from so called reparative therapies. However while leading the way in this form of reform Malta must careful to take great care to ensure that social attitudes towards atypical sex characteristics do not lead interventions aimed at “fixing” or “repairing” a child, thus flouting this law and discriminating against individuals on the basis of their sex characteristics not being found socially acceptable.
Simultaneously the new bill addressed gender identity and expression extensively and we are pleased that our Trans friends and allies are afforded greater protection, dignity and guaranteed a life of self-determination by the adoption of the reform found within the bill.
OII-Europe emphatically urges the governments of other nations, along with the European Parliament and other law making entities to look towards the Malta law reform and adopt similar reform within their own countries and areas, ending decades of abusive reparative and gender confirming surgical intervention, taking place worldwide.
OII Europe (Organisation Intersex International Europe) is the umbrella organisation of European human rights based intersex organisations. OII Europe was founded on Human Rights Day, 10 December, during the Second Intersex Forum at Stockholm in 2012.
OII Europe is an autonomous affiliate of OII (Organisation Internationale des Intersexués), a decentralised global network of intersex organisations, which was founded in 2003 and has operated since then through its national groups in every region of the world.
1. Streuli, J. C., Vayena, E., Cavicchia-Balmer, Y. and Huber, J. (2013), Shaping Parents: Impact of Contrasting Professional Counseling on Parents’ Decision Making for Children with Disorders of Sex Development. Journal of Sexual Medicine, 10: 1953”“1960. doi: 10.1111/jsm.12214
2. Dreger A. Hermaphrodites and the Medical Invention of Sex. Cambridge, Massachusetts: Harvard
University Press; 2002.
3. Hawbecker H. Who did this to you? In Dreger AD, ed. Intersex in the Age of Ethics. Hagerstown,
Maryland: University Publishing Group; 1999:111-3.
4. Reiner W, Kropp B. Aphallic males: Seven-year experience at the Unversity of Oklahoma.
Presented at: American Academy of Pediatrics, Urology Section. New Orleans; 2003.
5. Kim. As is. In Intersex in the Age of Ethics. Frederick Maryland: University Publishing Group;
6. Dreger AD, Chase C. A mother’s care: An interview with “Sue” and “Margaret”. In Dreger AD,
ed. Intersex in the Age of Ethics. Hagerstown, Maryland: University Publishing Group; 1999.
7. Creighton S. Surgery for intersex. Journal of the Royal Society of Medicine 2001;94(5):218-220.
8. Beh H, Diamond M. An emerging ethical and medical dilemma: Should physicians perform sex
assignment surgery on infants with ambiguous genitalia? Mich J Gend Law 2000;7(1):1-63. Available here:
www.hawaii.edu/PCSS/online_artcls/intersex/intersex00_00.html. New link (08/2022)
”” Silvan Agius (@SilvanAgius) 29. Oktober 2014