Sex characteristics

Sex characteristics refers to an individual's physical sexual features. It also refers to an attribute defined in law for the purposes of protecting individuals from discrimination due to their sexual features. The attribute of sex characteristics was first defined in national law in Malta, in 2015.

Physical attributes

Physical sex characteristics include primary sex characteristics and secondary sex characteristics. A primary sexual characteristic, as narrowly defined, is any anatomical part of the body involved in sexual reproduction and constituting the reproductive system in a complex organism, especially the external sex organs; the external sex organs are also commonly referred to as the genitalia or genitals.[1][2]

Secondary sex characteristics are features that appear at sexual maturity in animals and during puberty in humans, especially the sexually dimorphic phenotypic traits that distinguish the sexes of a species, but that, unlike the sex organs, are not directly part of the reproductive system.

  Explicit protection on grounds of sex characteristics
  Explicit protection on grounds of intersex status
  Explicit protection on grounds of intersex within attribute of sex

In a wide-ranging analysis on intersex human rights and health issues, the Council of Europe published an Issue Paper entitled Human rights and intersex people in May 2015.[3] The document highlighted an historic lack of attention to intersex human rights, stating that current social and biomedical understandings of sex and gender make intersex people "especially vulnerable" to human rights breaches. The report cited previous reports from San Franscisco,[4][5] the Swiss National Advisory Commission on Biomedical Ethics[6] and the Australian Senate.[7] The Commissioner for Human Rights recommended that Member States of the Council of Europe protect intersex citizens on grounds of "sex characteristics", or otherwise protect intersex persons on grounds of sex or gender:[3]

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. (page 9)[3]

The Council of Europe also notes that sex characteristics are distinct from a person's sexual orientation and gender identity:

Importantly, variations in sex characteristics are different than sexual orientation and gender identity, even though the three layers interact in the formation of a person’s personality. (page 15)[3]

Malta was the first country to introduce protection from discrimination on grounds of sex characteristics, in April 2015.

In September 2015, Zeid Ra'ad Zeid Al-Hussein, the United Nations High Commissioner for Human Rights, opened an Expert meeting on ending human rights violations against intersex persons stating:[8]

All human beings are born equal in dignity and rights. Those foundational, bedrock principles of universality and equality mean that all of us, without exception, and regardless of our sex characteristics, are equally entitled to the protections of international human rights law.[8]

In 2016, the Asia Pacific Forum of National Human Rights Institutions (AFP) manual on Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics.[9] The document provides an analysis of human rights issues, including the rights to physical integrity, non-discrimination, effective remedies and redress, and recognition before the law.

Jurisdictions

Greece

Greece prohibits discrimination and hate crimes based on "sex characteristics", since 24 December 2015.[10][11]

Malta

In April 2015, Malta passed a Gender Identity Gender Expression and Sex Characteristics Act that protects individuals from discrimination on grounds of "sex characteristics", and also recognizes a right to bodily integrity and physical autonomy.[12]

"sex characteristics" refers to the chromosomal, gonadal and anatomical features of a person, which include primary characteristics such as reproductive organs and genitalia and/or in chromosomal structures and hormones; and secondary characteristics such as muscle mass, hair distribution, breasts and/or structure.[12]

The Act also protects children from modifications to their sex characteristics before they can consent, and prohibits modifications on the sex characteristics of minors for social or cultural purposes. The law was widely welcomed by civil society organizations.[13][14][15][16][17]

United States

In May 2016, the United States Department of Health and Human Services issued a statement explaining Section 1557 of the Affordable Care Act stating that the Act prohibits "discrimination on the basis of intersex traits or atypical sex characteristics" in publicly-funded healthcare, as part of a prohibition of discrimination "on the basis of sex".[18][19]

See also

References

  1. ↑ "Sex organ (sɛks ˈɔːɡən)". Collins English Dictionary. Retrieved September 14, 2013.
  2. ↑ P. R. Ashalatha, G. Deepa (2012). Textbook of Anatomy and Physiology for Nurses. JP Medical Ltd. pp. 252–274. ISBN 9350254239. Retrieved September 14, 2013.
  3. 1 2 3 4 Council of Europe; Commissioner for Human Rights (April 2015), Human rights and intersex people, Issue Paper
  4. ↑ Human Rights Investigation into the Medical "Normalization" of Intersex People, Human Rights Commission of the City and County of San Francisco, 2005, via Senate of Australia
  5. ↑ Concluding submission to the Senate Inquiry on involuntary or coerced sterilisation, Organisation Intersex International Australia, 12 September 2013.
  6. ↑ Swiss National Advisory Commission on Biomedical Ethics NEK-CNE (November 2012). On the management of differences of sex development. Ethical issues relating to "intersexuality".Opinion No. 20/2012 (PDF). 2012. Berne.
  7. ↑ Involuntary or coerced sterilisation of intersex people in Australia, Australian Senate Community Affairs Committee, October 2013.
  8. 1 2 United Nations High Commissioner for Human Rights (September 16, 2015), Opening remarks by Zeid Ra'ad Al Hussein, United Nations High Commissioner for Human Rights at the Expert meeting on ending human rights violations against intersex persons
  9. ↑ Asia Pacific Forum of National Human Rights Institutions (June 2016). Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics. Asia Pacific Forum of National Human Rights Institutions. ISBN 978-0-9942513-7-4.
  10. ↑ (Greek) NOMOΣ ΥΠ’ ΑΡΙΘ. 3456 Σύμφωνο συμβίωσης, άσκηση δικαιωμάτων, ποινικές και άλλες διατάξεις.
  11. ↑ (Greek) Πρώτη φορά, ίσοι απέναντι στον νόμο
  12. 1 2 Malta (April 2015), Gender Identity, Gender Expression and Sex Characteristics Act: Final version
  13. ↑ Star Observer (2 April 2015). "Malta passes law outlawing forced surgical intervention on intersex minors". Star Observer.
  14. ↑ Cabral, Mauro (April 8, 2015). "Making depathologization a matter of law. A comment from GATE on the Maltese Act on Gender Identity, Gender Expression and Sex Characteristics". Global Action for Trans Equality. Retrieved 2015-07-03.
  15. ↑ OII Europe (April 1, 2015). "OII-Europe applauds Malta's Gender Identity, Gender Expression and Sex Characteristics Act. This is a landmark case for intersex rights within European law reform". Retrieved 2015-07-03.
  16. ↑ Carpenter, Morgan (April 2, 2015). "We celebrate Maltese protections for intersex people". Organisation Intersex International Australia. Retrieved 2015-07-03.
  17. ↑ Transgender Europe (April 1, 2015). Malta Adopts Ground-breaking Trans and Intersex Law – TGEU Press Release.
  18. ↑ Office for Civil Rights (OCR) (2016). "Section 1557 of the Patient Protection and Affordable Care Act" (Text). HHS.gov. Retrieved 2016-05-27.
  19. ↑ interACT. "Federal Government Bans Discrimination Against Intersex People in Health Care". interactadvocates. Retrieved 2016-05-27.
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