Portugal has taken an important step towards protecting intersex people’s bodily integrity – but will it be enough?
Today, on the 12th of July 2018, the Portuguese Parliament has adopted a law establishing the right to self-determination of trans persons aged 18+ in the legal recognition of their gender identity. Portugal has also taken an important step towards outlawing medically unnecessary treatments on intersex kids – but a lot will depend on the implementation.
The now adopted law establishes the right to legal gender recognition on the basis of self-determination for adults. It also allows minors between the age of 16 and 18 to change their first name and gender marker. However, the law limits their self-determination by requiring a medical statement that confirms their capacity of being able to consent.
Intersex people are protected under the ground of sex characteristics. However, when it comes to invasive and irreversible surgeries and other medical treatments on children the law is lacking.
Instead of banning all deferrable surgeries and other medical interventions on intersex minors the law refers to the “moment in which the person’s gender identity is manifested” as starting point after which “interventions [….] are to be carried out with the person’s express and informed consent, through the person’s legal representatives”.
The law does not state how the knowledge of this “manifestation” of a minor’s gender identity is to be established. Nor does it require a prove of whether the child has the capacity to consent to these medical interventions. At the same time, the law seems to imply that medical treatment is unlawful even in situations of proven health risks, before the minor’s gender identity has manifested.
“This law is highly contradictory and may not even protect intersex children from unwanted medical interventions”, says Dan Christian Ghattas, Executive Director of OII Europe. “On one hand it legally limits the self-determination of trans adolescents in regards to a simple and reversible administrative procedure. On the other hand, it puts no legal limit to the capacity of intersex children to consent to invasive and irreversible medical interventions. Many deferrable interventions on intersex children are carried out at a very young age. There is a high risk that parents and doctors may declare or believe the child’s gender identity to be ‘manifested’ in order to carry out deferrable and irreversible interventions on the child’s sex characteristics. Children depend on their caregivers and, therefore, are especially vulnerable. It is very unlikely that a younger or even an older child will have the capacity to defend themselves, when pressure to ‘consent’ is put on them, or be able to actually identify biased or lacking information. The law, as it is, is not strong enough to protect intersex children against a violation of their bodily integrity.”
“In addition”, Kitty Anderson, Co-Chair of OII Europe continues, “the law seems to imply that even in a situation where the health of the person would be at risk, medical treatments should not be performed if the person cannot consent. In actually life threatening situations medical treatment must be carried out even if the person cannot consent. However, it is critical to make clear that those real life threatening situations are extremely specific and are not common.”
“OII Europe had informed the Portuguese government of all these issues before the law was voted on the first time in the beginning of 2018”, concludes Miriam van der Have, Co-Chair of OII Europe. “We appreciate the efforts put into the law to protect intersex children. But unless very clear implementation directives will establish a framework that fully respects the fundamental rights to autonomy and bodily integrity, the law will not be able to protect intersex children from a violation of their human rights.”