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The European Parliament adopted an important resolution on intersex in 2019. Additionally, the Council of Europe has made a clear commitment to protecting the rights of intersex people with two resolutions and a report by the Commissioner for Human Rights.
Human rights within the European Union (EU), originally an economic and political alliance, have only relatively recently received binding recognition. The Maastricht Treaty (1992) stipulated that the EU respects fundamental rights. But it was not until 2009, when the Lisbon Treaty took effect, that the EU Charter of Fundamental Rights became binding on EU institutions and on EU member states insofar as they apply EU rules. The Charter of Fundamental Rights1The term ‘fundamental rights’ is used to refer to the concept of human rights in the specific internal context of the European Union. Traditionally, the term ‘fundamental rights’ is used in a constitutional context, while the term ‘human rights’ is used in international law. The two terms have similar meanings as can be seen when comparing the content of the Charter of Fundamental Rights of the European Union with that of the European Convention on Human Rights and the European Social Charter. Fundamental rights that are included are derived from:
- EU treaties,
- international treaties and agreements (including the 1950 European Convention on Human Rights ECHR and the 1989 European Social Charter),
- common constitutional traditions of the EU Member States,
- various statements by the European Parliament.
Out of the three legislative branches of the European Union, the European Parliament is the only one that is directly elected.2 The other two are the European Commission and the Council of Europe. The European Commission prepares legislative proposals that are voted on by the European Parliament. It is composed of 705 members from all EU member countries. It is a dedicated sponsor of fundamental rights and democracy. On the 14th of February 2019, the European Parliament adopted a groundbreaking resolution regarding the rights of intersex people. The resolution “strongly condemns sex-normalising treatments and surgery” and urges the development of European and national legislation to protect intersex people’s right to bodily integrity and against violence and discrimination. This resolution complements the recommendations and resolutions made by the Council of Europe in 2013, 2015 and 2017 (see below).
Image: Simon Schmitt (EU)
The Council of Europe
47 countries3 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.
Canada, Israel, Japan, Mexico, Vatican City, United States, almost all located in Europe4The 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, in English 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
- European Social Charter,
- European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,
- Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
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.
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 demedicalizing 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
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). 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.
Human rights and Intersex People
In the report Human Rights and Intersex People (2015), Council of Europe Commissioner for Human Rights Nils Muižnieks5Muižnieks was Human Rights Commissioner from 2012 to 2018 published eight recommendations.
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).
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 people (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.
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.