More countries to ban intersex genital mutilations in Europe

Filip Rak

Wardyński & Partners, Warsaw

filip.rak@wardynski.com.pl

The human rights of individuals born with variations in sex characteristics has emerged as a critical frontier in European legal and medical discourse, as mounting evidence reveals the profound harm caused by unnecessary surgical interventions performed on intersex children.

Across the European Union, a paradigm shift is underway as countries increasingly recognise that ‘gender normalising’ surgeries conducted on minors for social or aesthetic reasons – rather than genuine medical necessity – constitute a fundamental violation of bodily autonomy and human dignity. This legislative movement, now encompassing Germany, Spain, Greece, Portugal and Malta, with legislative process underway in Belgium, represents a decisive rejection of outdated medical practices that prioritise social conformity over individual rights and self-determination.

This article updates the current legal landscape in terms of intersex genital mutilations (IGM) bans introduced in several EU Member States, following international legal and medical recommendations.

Biological diversity and non-consensual medical interventions

Part of the human population, from the point of view of biological physique, escapes the rigid, arbitrary criteria of biological sex classification. This applies to people born with variation of sex characteristics, that is, having atypical body structure in terms of sex characteristics that do not clearly correspond to the criteria of typical male or female bodies. Variations in sexual development represent a broad spectrum of congenital causes of atypical genitourinary structure. Variations can manifest themselves at the level of chromosomes, hormones, the formation of the gonads (testes or ovaries), external genitalia or tertiary sexual characteristics (breasts, hairiness, musculature, body proportions, body fat or tone of voice).

United Nations data indicate 1.7 per cent of the population may have intersex traits. Some individuals are rarer (eg, gender development variation with karyotype 46, XY is estimated at 1 in 20,000 births), and some are more common (eg, hypospadias and cryptorchidism: 1 in 200–300 cases).

People with differentiated sex characteristics commonly face discrimination in most areas of life, including employment, education and health care, among others. According to statistics from the European Union Agency for Fundamental Rights, 21 per cent of patients with diverse gender characteristics have experienced discrimination in the area of healthcare.[1] Surgical interventions on minors, undertaken for merely social, aesthetic purposes, without a real need to protect their health or life, are cited as the most serious violation of the human rights of people with diverse gender characteristics.

Some variations in sexual development, corresponding to certain disease entities in the ICD-10 (ICD-11) classification, pose a threat to the life or health of children. For example, such a threat is considered to be caused by the absence of a urethral outlet or the occurrence of actual neoplastic lesions[2]. However, many variations in the development of sexual characteristics are harmless in nature and are a manifestation of human biological diversity. In many cases – eg, partial androgen insensitivity or other androgen production disorders, gonadal dysgenesis, the presence of mixed gonads – atypical genitalia may occur, and the future sexual identification of the child is sometimes difficult to predict. The performance of surgery or other irreversible procedures should be postponed in such cases, so that the operation depends on an informed decision by the patient self.

In most countries, consent for similar operations is given by legal guardians, usually parents, for whom learning of the child’s abnormal physique comes as a surprise. Consent is given under time pressure, in hospitals, without obtaining comprehensive information from the doctor about the reasons, consequences and alternatives to performing surgery on the child. The experience of parents of underage patients shows that surgery is presented as the only option, and social, aesthetic or psychological reasons (such as the risk of low self-esteem in the child in the future process of puberty) are often cited as justification, but this is not scientifically supported. In making such recommendations, in the vast majority of cases, no psychologist or sexologist is involved.

In many countries there is no data on how many such operations are performed. Poland is an interesting exception – in 2022 the Ombudsman (Commissioner for Human Rights or Rzecznik Praw Obywatelskich) obtained statistics from the state health fund that show that similar interventions on minors under the age of 16 are routinely and massively performed. In Poland, there may be about 5,000 to 7,000 interventions per year[3], while on minors under the age of 18, there are 11,000 to 15,000 per year.

Medical and legal recommendations

Recommendations from the medical profession indicate[4] that decisions on atypical genital reconstruction procedures in minors (including feminising or masculinising surgery) should be made with the patient’s participation and informed consent, and therefore must be deferred until they reach the age at which such consent is possible. This is due to the irreversibility of these procedures, the inability to confidently determine the future gender identity of a young child whose congenital sex characteristics are atypical, and the high risk of postoperative complications and other negative health consequences.

The European Convention on Human Rights (ECHR) emphasises the right to respect for private life, bodily integrity and protection against inhuman treatment. The need to protect children from surgical operations without medical indications that may lead to physical and mental suffering stems from Article 3 of the ECHR – the prohibition of inhuman treatment – as well as Article 8 of the ECHR, establishing the right to respect for private life.

The European Court of Human Rights (ECtHR) has repeatedly stressed the need to protect the right to self-determination and bodily integrity. The cases of YF v Turkey and KA and AD v Belgium,[5] ruled that forced medical procedures without informed consent constitute a violation of these rights and can only be permitted in cases of medical necessity. In M v France, the Court held that, as a general rule, genital mutilation surgery performed without a therapeutic purpose and without the patient’s informed consent amounts to inhuman treatment.[6] In the case of Caster Semenya v Switzerland[7] it found that laws forcing medical interventions that alter sex characteristics violate both the right to privacy and the prohibition of discrimination. The Court’s rulings confirm that any medical interventions, especially those involving sex characteristics, must be undertaken with full respect for individual autonomy and with informed consent.

IGM bans in more European countries

Following the above recommendations, a number of EU countries have already adopted statutory regulations restricting ‘gender normalising’ procedures on minors. Relevant bans have already been introduced by Germany, Greece, Malta, Portugal and Spain, while work on such a ban is currently underway in Belgium.

Spain

A ban on unwarranted surgeries that result in the modification of the genitals of children with ZRP was introduced into the Spanish legal system by a law of 28 February 2023.[8] The law defines congenital differentiation of sexual characteristics as ‘the condition of persons born with biological, anatomical or physiological characteristics, sexual anatomy, reproductive organs or chromosomal pattern that do not correspond to socially established ideas of male or female bodies.’

Children under the age of 12 are prohibited from undergoing any surgery to modify their genitals, except in cases where the intervention is necessary to protect the child’s health. In the case of minors between the ages of 12 and 16, operations are permitted only with the consent of the minor, provided that, taking into account the minor’s age and maturity, the minor is able to give informed consent to the operation.

Violation of the prohibition on genital modification of children under the age of 12, established in Article 19 (1) of the Law, in cases where it does not constitute a crime, is classified as a ‘very serious administrative tort.’ Among the sanctions stipulated are suspension of the right to practice for no more than three years or closure of a medical facility for no more than three years.

Greece

In Greece, a ban on sex ‘normalising’ surgeries was established by Law No 4958 of 21 July 2022, on reform of medically assisted reproduction and other urgent regulations. Any operations on minor patients under the age of 15 on sex characteristics may only take place with court approval, given after obtaining the opinion of a special interdisciplinary team consisting of medical and psychological specialists and a representative of the patient community (Article 17(2) of the law). The court may consent only to such operations that do not result in any other future irreversible or significant complications to the minor’s health. The court’s consent is not required if the surgery is necessary to prevent a threat to the minor’s life or health and cannot be postponed pending a court decision.

Malta

In Malta, a ban on gender ‘normalising’ surgeries was introduced by Act XI of 14 April 2015, on gender identity, gender expression and sex characteristics. The law defines ‘sex characteristics’ as a person’s chromosomal, gonadal and anatomical characteristics, which include primary characteristics such as reproductive organs and genitalia, or chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts or structure. Article 3 of the Law ensures each person’s right to bodily integrity and physical autonomy.

According to Article 14 of the Law, it is unlawful for doctors or other professionals to carry out any sex assignment treatment or surgical intervention on the sexual characteristics of a minor under the age of 16, for whom the treatment or intervention may be postponed until the person can give informed consent. In exceptional cases, such intervention may be carried out with the consent of the minor’s legal representatives, after obtaining the opinion of an interdisciplinary medical team appointed by the competent minister. However, any medical intervention carried out for social reasons without the minor’s consent is considered a violation of the law.

Germany

Germany has a conditional ban on ‘gender normalising’ surgeries for children with differentiated sex characteristics, introduced by the Law of 25 March 2021 on the Protection of Children with Differentiated Sex Development.[9] 

The purpose of the regulation is to protect the right to self-determination and prevent unwarranted medical interference. The amendment added Section 1631e to the German Civil Code (BGB), which prohibits surgeries that alter a child’s sex characteristics if the child is unable to give their own consent. Exceptions allow for operations whose postponement would endanger the child’s health or life, in which case parental consent must be approved by the family court. Such consent is not required when the danger is imminent. The court approves the operation based on the opinion of an interdisciplinary commission, the composition of which is determined by Section 1631e (4) of the BGB. The commission must include doctors of various specialties, a psychologist and an ethics expert. The opinion should include, among other things, information about the child’s condition, justification for the operation and an assessment of the risks of alternative treatments. If the parents do not provide a positive opinion from the commission, the court holds a hearing and may refer them for additional consultations.

Portugal

In Portugal, a ban on gender ‘normalising’ surgeries was introduced on 7 August 2018.[10] The law grants everyone the right to preserve their primary and secondary sex characteristics (Article 4).

According to Article 5 of the law, except in situations where there is a proven risk to their health, as long as the child has not revealed his or her gender identity, surgical, pharmacological or other treatments and interventions that involve changes to the bodies of minors with congenital variations in gender development should not be carried out.