Raad van Europa, Straatsburg. Beeld Ellen Wuibaux

The Council of Europe, Strasbourg. Image: Ellen Wuibaux

Council of Europe: recommendations and resolutions

The Council of Europe has taken a clear stand on the importance of the protection of the rights of intersex people with two resolutions and a report from the Commissioner for Human Rights.

The Council of Europe

47 countries1 Member States: Albania, Andorra, Armenia, Azerbaijan, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Georgia, Greece, Hungary, Ireland, Iceland, Italy, Croatia, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, the Netherlands, North Macedonia, Norway, Ukraine, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom.

Observer States:
Canada, Israel, Japan, Mexico, Vatican City, United States
, almost all located in Europe,2The Council of Europe should not be confused with the European Union:

27 member states: not including the United Kingdom: Austria, Belgium, Bulgaria, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Croatia, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Czech Republic, Sweden.

The European Union has the same flag and “anthem” as the Council of Europe.
are members of the Council of Europe. This international organization administers over 220 treaties, partial agreements, conventions and protocols that aim to guarantee democracy, the rule of law, and human rights in the member states. Perhaps the best known conventions of the Council of Europe are

The latter treaty is the basis for the European Court of Human Rights (ECHR). Litigation here is only possible if all other (national) legal remedies have been exhausted.

The Council of Europe is based in Strasbourg (France). There, the Parliamentary Assembly of the Council of Europe (PACE) meets. The 324 members are not directly elected, but are delegated from the national parliaments. PACE mainly has a ‘monitoring function’ in making human rights violations visible and can give recommendations to member states, but cannot enforce compliance. The Council of Europe has its own Human Rights Commissioner who can make independent reports.

The Council of Europe and intersex

To promote the equality of intersex people, the Council of Europe has published three important documents in a short period of time:

2013: Resolution 1952 (2013) of the Parliamentary Assembly of the Council of Europe (PACE) on the right of children to physical integrity.
2015: Human Rights and Intersex People containing the recommendations of the Commissioner for Human Rights of the Council of Europe, Nils Muižnieks[5].
2017: Resolution 2191(2117) Parliamentary Assembly of the Council of Europe (PACE) on the rights of intersex children.

Together with the United Nations recommendations, these documents make a strong case for de-medicalizing intersex variations. According to European umbrella organization for intersex organizations OII-Europe, it is becoming increasingly clear that current medical practices lead to serious violations of human rights. The organization therefore wants the measures mentioned in the resolutions to be included in legislation.

Resolution 1952(2013): the right to physical integrity

Marlene Rupprecht. Image: photographer unknown/Council of Europe

In a report for the Committee on Social Affairs, Public Health and Sustainable Development, PACE Senator Marlene Rupprecht says that the Council of Europe Parliamentary Assembly has often called attention to violence against children where it is clear that the perpetrator is acting in bad faith (sexual violence in various contexts, violence in schools, domestic violence, and so on). But she also notes that non-medically justified violations of children’s physical integrity – violations that can have a long-term impact on their lives – have never been addressed. It is for this reason that she has called for this resolution.

7. The Assembly therefore calls on member States to:

7.1. examine the prevalence of different categories of non-medically justified operations and interventions impacting on the physical integrity of children in their respective countries, as well as the specific practices related to them, and to carefully consider them in light of the best interests of the child in order to define specific lines of action for each of them;

7.2. initiate focused awareness-raising measures for each of these categories of violation of the physical integrity of children, to be carried out in the specific contexts where information may best be conveyed to families, such as the medical sector (hospitals and individual practitioners), schools, religious communities or service providers;

7.3. provide specific training, including on the risks of and alternatives to certain procedures, as well as the medical reasons and minimum sanitary conditions that should be fulfilled when performing them, to various professionals involved, in particular medical and educational staff, but also, on a voluntary basis, religious representatives;

7.4. initiate a public debate, including intercultural and interreligious dialogue, aimed at reaching a large consensus on the rights of children to protection against violations of their physical integrity according to human rights standards;

7.5. take the following measures with regard to specific categories of violation of children’s physical integrity:

7.5.1. publicly condemn the most harmful practices, such as female genital mutilation, and pass legislation banning these, thus providing public authorities with the mechanisms to prevent and effectively fight these practices, including through the application of extraterritorial “legislative or other measures to establish jurisdiction” for cases where nationals are submitted to female genital mutilation abroad, as specified in Article 44 of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No. 210);

7.5.2. clearly define the medical, sanitary and other conditions to be ensured for practices which are today widely carried out in certain religious communities, such as the non-medically justified circumcision of young boys;

7.5.3. undertake further research to increase knowledge about the specific situation of intersex people, ensure that no-one is subjected to unnecessary medical or surgical treatment that is cosmetic rather than vital for health during infancy or childhood, guarantee bodily integrity, autonomy and self-determination to persons concerned, and provide families with intersex children with adequate counselling and support;

7.6. promote interdisciplinary dialogue between representatives of various professions, including medical doctors and religious representatives, so as to overcome some of the prevailing traditional methods which do not take into consideration the best interest of the child and the latest medical techniques.

7.7. raise awareness about the need to ensure the participation of children in decisions concerning their physical integrity wherever appropriate and possible, and to adopt specific legal provisions to ensure that certain operations and practices will not be carried out before a child is old enough to be consulted.

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Human rights and Intersex People

Nils Muižnieks. Image: Klara Beck/Council of Europe

In the report Human Rights and Intersex People (2015), Council of Europe Commissioner for Human Rights Nils Muižnieks3Muižnieks was Human Rights Commissioner from 2012 to 2018 published eight recommendations.

  1. Member states should end medically unnecessary “normalising” treatment of intersex persons, including irreversible genital surgery and sterilisation, when it is enforced or administered without the free and fully informed consent of the person concerned. Sex assignment treatment should be available to intersex individuals at an age when they can express their free and fully informed consent. Intersex persons’ right not to undergo sex assignment treatment must be respected.
  2. Intersex persons and their families should be offered interdisciplinary counselling and support, including peer support. Intersex persons’ access to medical
    records should be ensured.
  3. National and international medical classifications which pathologise variations in sex characteristics should be reviewed with a view to eliminating obstacles to the effective enjoyment, by intersex persons, of human rights, including the right to the highest attainable standard of health.
  4. Member states should facilitate the recognition of intersex individuals before the law through the expeditious provision of birth certificates, civil registration documents, identity papers, passports and other official personal documentation while respecting intersex persons’ right to self-determination. Flexible procedures should be observed in assigning and reassigning sex/gender in official documents while also providing for the possibility of not choosing a specified male or female gender marker. Member states should consider the proportionality of requiring gender markers in official documents.
  5. National equal treatment and hate crime legislation should be reviewed to ensure that it protects intersex people. Sex characteristics should be included as a specific ground in equal treatment and hate crime legislation or, at least, the ground of sex/gender should be authoritatively interpreted to include sex characteristics as prohibited grounds of discrimination.
  6. National human rights structures such as ombudspersons, equality bodies, human rights commissions and children’s ombudspersons should be active in their outreach towards intersex people, including children. They should be clearly mandated to work on issues related to intersex people and to provide victim-support services to them. There is a need to facilitate intersex persons’ access to justice.
  7. Member states should carry out research into the situation and human rights protection needs of intersex people in different settings. There is an urgent need to improve public awareness and professional training about the problems encountered by intersex persons. Intersex people and organisations representing them should be enabled to participate actively in research concerning them and in the development of measures improving their enjoyment of human rights.
  8. The human rights violations intersex people have suffered in the past should be investigated, publicly acknowledged and remedied. Ethical and professional standards, legal safeguards and judicial control should be reinforced to ensure future human rights compliance.
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Resolution 2191(2017): stop unnecessary medical treatment

In Resolution 2191(2017) the Parliamentary Assembly of the Council of Europe calls for an end to non-consensual unnecessary “normalizing” medical treatment of intersex children (PACE 2017).

Piet De Bruyn. Image: Sandro Weltin/Raad van Europa

In resolution 2191 (2017), the Parliamentary Assembly of the Council of Europe (PACE) calls on member states to prohibit non-consensual unnecessary “normalizing” medical treatment of intersex persons (PACE 2017). Except in situations where a child’s life is in immediate danger, any treatment that aims to change the gender characteristics of intersex children should be delayed until the child can decide for him- or herself. Furthermore, the resolution recognizes the need to raise awareness among both health professionals and society, and calls on Council of Europe member states to provide compensation to intersex persons who are victims of non-consensual unnecessary medical treatment.

First time

This is the first time such a resolution has been adopted at such a high political level. The report and resolution, on which rapporteur Piet De Bruyn worked for a year, had previously been unanimously adopted by the Council of Europe’s Commission on Equality and Non-Discrimination.

The resolution is the logical follow-up to Resolution 1952 (2013) on the right of children to physical integrity adopted in 2013 (PACE 2013) and the recommendations of Council of Europe Commissioner for Human Rights Nils Muižnieks published in 2015 (Agius 2015).

In summary, the resolution calls for the following:

Member States are called upon to:

  • enable intersex people to stand up for their right to physical integrity and bodily autonomy,
  • offer intersex people psychosocial and social support in dealing with the challenges which, among others, result from society’s attitude towards intersex people,
  • organize the registration of sex and gender in such a way that intersex people are not hindered/discriminated by it,
  • include the discrimination against intersex people in anti-discrimination legislation, and
  • conduct research into the situation and rights of intersex people, to make professionals and the public aware of the situation and rights of intersex people.

Bearing in mind the Oviedo Convention[3], the relevant recommendations made in Resolution 1952 (2013)[4], the recommendations of the Council of Europe Commissioner for Human Rights[5], and numerous treaty bodies of the United Nations [6], the Assembly calls on Council of Europe member States to:

7.1. with regard to effectively protecting children’s right to physical integrity and bodily autonomy and to empowering intersex people as regards these rights:

7.1.1. prohibit medically unnecessary sex-“normalising” surgery, sterilisation and other treatments practised on intersex children without their informed consent;
7.1.2. ensure that, except in cases where the life of the child is at immediate risk, any treatment that seeks to alter the sex characteristics of the child, including their gonads, genitals or internal sex organs, is deferred until such time as the child is able to participate in the decision, based on the right to self-determination and on the principle of free and informed consent;
7.1.3. provide all intersex people with health care offered by a specialised, multidisciplinary team taking a holistic and patient-centred approach and comprising not only medical professionals but also other relevant professionals such as psychologists, social workers and ethicists, and based on guidelines developed together by intersex organisations and the professionals concerned;
7.1.4. ensure that intersex people have effective access to health care throughout their lives;
7.1.5. ensure that intersex people have full access to their medical records;
7.1.6. provide comprehensive and up-to-date training on these matters to all medical, psychological and other professionals concerned, including conveying a clear message that intersex bodies are the result of natural variations in sex development and do not as such need to be modified;
7.2. with a view to assisting intersex people, their parents and the people around them in dealing with the challenges posed, inter alia, by social attitudes towards variations in sex characteristics:
7.2.1. ensure that adequate psychosocial support mechanisms are available for intersex people and their families throughout their lives;
7.2.2. support civil society organisations working to break the silence around the situation of intersex people and to create an environment in which intersex people feel safe to speak openly about their experiences;

7.3. with regard to civil status and legal gender recognition:

7.3.1. ensure that laws and practices governing the registration of births, in particular as regards the recording of a newborn’s sex, duly respect the right to private life by allowing sufficient flexibility to deal with the situation of intersex children without forcing parents or medical professionals to reveal a child’s intersex status unnecessarily;
7.3.2. simplify legal gender recognition procedures in line with the recommendations adopted by the Assembly in Resolution 2048 (2015)and ensure in particular that these procedures are quick, transparent and accessible to all and based on self-determination;
7.3.3. ensure, wherever gender classifications are in use by public authorities, that a range of options are available for all people, including those intersex people who do not identify as either male or female;
7.3.4. consider making the registration of sex on birth certificates and other identity documents optional for everyone;
7.3.5. ensure that, in accordance with the right to respect for private life, intersex people are not prevented from entering into a civil partnership or marriage or from remaining in such a partnership or marriage as a result of the legal recognition of their gender;
7.4. with regard to combating discrimination against intersex people, ensure that anti-discrimination legislation effectively applies to and protects intersex people, either by inserting sex characteristics as a specific prohibited ground in all anti-discrimination legislation, and/or by raising awareness among lawyers, police, prosecutors, judges and all other relevant professionals, as well as intersex people, of the possibility of dealing with discrimination against them under the prohibited ground of sex, or as an “other” (unspecified) ground where the list of prohibited grounds in relevant national anti-discrimination provisions is non-exhaustive;

7.5. collect more data and carry out further research into the situation and rights of intersex people, including into the long-term impact of sex-“normalising” surgery, sterilisation and other treatments practised on intersex people without their free and informed consent, and in this context:

7.5.1. conduct an inquiry into the harm caused by past invasive and/or irreversible sex-“normalising” treatments practised on individuals without their consent and consider granting compensation, possibly through a specific fund, to individuals having suffered as a result of such treatment carried out on them;
7.5.2. in order to build a complete picture of current practice, keep a record of all interventions carried out on children’s sex characteristics;
7.6. carry out campaigns to raise awareness among the professionals concerned and among the general public as regards the situation and rights of intersex people.
Full text of the resolution

Referenties

Beeld: iStock.com/drpnncpp