Contributed by Hilary Ball
Does the Criminal Code violate the rights of intersex children?
On June 15, 2021, the LGBTQI2S advocacy organization Egale Canada filed an application to the Ontario Superior Court challenging the constitutionality of section 268(3)(a) of the Criminal Code. Amended in 1997 to explicitly prohibit female genital mutilation, the provision on aggravated assault exempts from criminal liability certain surgeries performed on intersex children for the purpose of normalizing their sexual appearance. Egale and its two co-applicants seek to show that the exemption violates these children’s rights to liberty, security of person, equality, and freedom from cruel and unusual treatment under the Canadian Charter of Rights and Freedoms. The current law, they argue, “deprives children from criminal law protections against the mutilation of their bodies, and instead functions to normalize surgical interventions based on intersexist and binary assumptions about ‘correct’ or ‘normal’ bodies.”
It is difficult to pinpoint with certainty how many children in Canada undergo these surgeries each year, as research on intersex issues is generally hindered by a lack of accessible health data. In Quebec, however, an access to information request by one of the applicants in the Egale lawsuit recently revealed that over 1,385 genital surgeries were performed on children under the age of 14 since 2015, with 838 of these on children under two. Over two thirds of the surgeries performed in Quebec were for conditions that doctors do not define as differences of sex development, as the sex of the child is not deemed ambiguous. Yet insofar as these surgeries involve normalizing children’s genitals—for instance, enabling boys to pee standing up—intersex activist groups view them as falling under the umbrella of what they call intersex genital mutilation.
The Egale lawsuit reflects a growing consensus among human rights groups that cosmetic surgeries on intersex children should be postponed until the child is old enough to meaningfully participate in the decision to operate. The U.N. Human Rights Office, for instance, has urged states to prohibit such surgeries and take additional steps to protect intersex people from discrimination. Similar calls have been made by Human Rights Watch and Physicians for Human Rights as well as intersex-specific advocacy organizations such as InterAct. In a 2019 letter to the House of Commons Standing Committee on Health, the Canadian Bar Association also weighed in, encouraging the government to rethink the section 268 exemption. Today, however, gender normalizing surgeries remain standard medical practice in Canada, and representatives from the federal government have been hesitant to commit to reform.
The medicalization of intersex
Experts estimate that up to 1.7% of the global population is born intersex, a term that refers to a range of sex characteristic variations that do not align with binary notions of sex. As such, the debate over the ethics of medical interventions on intersex children is animated by questions about what constitutes a normal human body: should intersex traits be viewed as pathological conditions in need of correction or simply as manifestations of human biological variance, like having red hair? Proponents of early medical intervention often emphasize the psychosocial importance of conformity to gender norms and raise concerns that unaltered intersex children may face stigmatization from their peers or experience confusion and psychological distress about their gender identity. Advocates of de-medicalization, by contrast, have suggested that the erasure of intersex bodies and identity exacerbates the stigma and shame attached to genital difference, thus reinforcing the discriminatory attitudes these surgeries aim to protect children from in the first place. Moreover, they argue, nonconforming genitalia is not in itself an emergency requiring an immediate cure, especially when the patient is too young to understand and consent to the recommended treatment.
The idea that intersex children could and should be normalized early in life entered the medical mainstream in the 1950s at Johns Hopkins University, where an interdisciplinary research group developed the “optimum gender of rearing” model of care. The Hopkins team considered unambiguous gender identity as essential for social acceptance and wellbeing, but they also embraced a vision of gender as completely socially constructed: any child could be a “real” boy or girl if they were treated as such from a young age and if their body looked the part. As such, doctors often encouraged parents to conceal their children’s intersex status from them to ensure adequate socialization, with some patients only learning of their diagnoses as adults. Today, there is a lack of clinical consensus on whether early interventions lead to better outcomes, but testimonies suggest that the negative consequences of these often irreversible procedures can be significant. By presuming the child’s future interests, for instance, surgeries risk assigning a gender that does not coincide with the child’s ultimate identity, as was the case for the boy at the centre of the landmark lawsuit M.C. v Medical University of South Carolina, which settled for $440,000 in 2017. Reported side effects have also included scarring, nerve damage, reduced sexual sensation, and permanent sterilization, as well as the shame that may accompany additional surgeries, repeated genital exams, and in some cases a lifelong dependence on hormone replacement therapy.
Experts estimate that up to 1.7% of the global population is born intersex, a term that refers to a range of sex characteristic variations that do not align with binary notions of sex. || (Source: pixabay // u_jqskahw9)
Male, female, or undetermined
Provincial birth registration schemes that provide binary options for assigning the sex of newborns may reinforce perceptions of intersex as a problem requiring correction. British Columbia, for example, only accommodates male or female sex designations on its birth registration form, while Ontario asks parents to classify intersex children as “undetermined.” In recent years, LGBTQI2S groups have had some success petitioning provincial governments to facilitate changes in sex designation on birth certificates and other government-issued identification and even to include a gender-neutral designation. Other activists have gone further, suggesting that sex and gender should be omitted from official documents altogether.
In Quebec, the conversation about official sex designations and LGBTQI2S rights has been especially active over the past year. Articles 113 and 115 of the Civil Code of Quebec (CCQ) state that a declaration of birth must be made within 30 days and must include the child’s sex. This requirement was challenged in the 2021 Quebec Superior Court case Centre for Gender Advocacy c. Attorney General of Quebec, where the plaintiffs argued that parents should have the choice not to designate their child’s sex at birth. As justification, they suggested that the requirement not only causes harm to transgender and non-binary people whose gender identity develops at odds with their official documentation, but that it also fails to accommodate intersex children, whose parents may rush into surgery to meet the 30-day deadline, thus increasing the risk of “indirectly creat[ing] a transgender child.” On this issue, Justice Gregory Moore found that requiring a sex designation on the declaration of birth constituted discrimination under the Charter on the grounds of gender identity and gender expression; however, the infringement was ultimately deemed proportionate to the benefits of keeping accurate information about sex in the register of civil status.
In October 2021, the situation of intersex children was further complicated by Quebec’s controversial family law reform bill. Drafted in response to other issues raised by Justice Moore’s ruling in Centre for Gender Advocacy, Bill 2introduced a new option to include “gender identity” on official documents, while retaining a strictly binary understanding of sex. The proposed amendments to article 115 of the CCQ would allow parents to choose a “male or female gender identity” for a child whose sex is undetermined at birth. As per an amendment to article 71, however, only those who have undergone medical treatments to permanently alter their apparent sexual characteristics would be eligible to have their sex designation changed from “undetermined” to male or female. In other words, intersex children who have undergone normalization surgery would have a “sex” listed on their official documents and those left unaltered would have a “gender identity.” Following intense criticism, the surgical requirement—which also applied to transgender people seeking to have their sex designation changed—was ultimately removed from the bill. Nevertheless, the Bill 2 debacle illustrates the difficulty governments can encounter when trying to adjust existing legal frameworks to accommodate the complexities of human difference, especially if affected groups are not adequately consulted.
Provincial birth registration schemes that provide binary options for assigning the sex of newborns may reinforce perceptions of intersex as a problem requiring correction. || (Source: pixabay // WikimediaImages)
Activists continue to advocate at various levels of government for more explicit recognition of the rights of intersex people. As there is very little caselaw in Canada on intersex issues, it remains unclear to what extent they are protected from discrimination on the ground of sex; moreover, federal and provincial human rights laws do not formally prohibit discrimination on the basis of differences in sex characteristics. While the federal government has yet to take a position on these questions, the Quebec Minister of Justice indicated in November that he would consider introducing a new bill to protect the rights of intersex people to bodily integrity. Despite pressure from Quebec’s second opposition party Québec Solidaire, however, the bill has yet to materialize.
Hilary Ball is a Junior Online Editor of the McGill Journal of Law and Health. She is currently in her second year of the BCL/JD program at McGill University’s Faculty of Law. Before starting law school, she completed a master’s degree in English literature at the University of British Columbia.