The fundamental rights situation of intersex people

This paper examines the legal situation of intersex people from a fundamental rights perspective. It draws on evidence from the Agency’s updated legal analysis on homophobia, transphobia, and discrimination on grounds of sexual orientation and gender identity, which now includes a section on intersex issues.

Most European societies recognise people as either male or female. However, this does not account for all variations in sex characteristics. As a result, intersex people experience fundamental rights violations ranging from discrimination to medical interventions without their consent.

Key facts

  • Many Member States legally require births to be certified and registered as either male or female.
  • In at least 21 Member States, sex ‘normalising’ surgery is carried out on intersex children.
  • In 8 Member States, a legal representative can consent to sex ‘normalising' medical interventions independently of the child’s ability to decide.
  • 18 Member States require patient consent provided the child has the ability to decide.
  • Intersex discrimination is better covered by sex discrimination rather than discrimination on the basis of sexual orientation and/or gender identity as it concerns physical (sex) characteristics.

Key conclusions

  • Legal and medical professionals should be better informed of the fundamental rights of intersex people, particularly children.
  • Gender markers in identity documents and birth registries should be reviewed to better protect intersex people.
  • Member States should avoid nonconsensual ‘sex-normalising’ medical treatments on intersex people.