Government inquiry leaves out intersex people

2015-12-14 07:00

An inquiry commissioned by the Swedish government proposes that people should be able to change their legal gender without having to submit to medical intervention. Researchers are positive to the idea but are at the same time critical of other parts of the inquiry.

The minimum age a person must have reached in order to change his or her gender has recently been subject to a government inquiry. The final report of the inquiry (Swedish government report SOU 2014:91) proposes that the Swedish gender recognition act be repealed and replaced with two new laws – one concerning legal gender and one on surgical alteration of sex organs and removal of sex glands.

Erika Alm is a senior lecturer in gender studies at the University of Gothenburg. As a researcher, she has studied norms surrounding sex, gender and desire, with a particular focus on medical knowledge and legislation. She is overall positive to the suggested changes.

‘I support the idea of separating legal gender from medical intervention. The investigators have obviously listened to the transgender people,’ she says.

Risky to determine an infant’s gender

Alm wishes the inquiry had given more attention to intersex persons, however. These are individuals with DSD, which is a condition some people are born with where the person’s sex characteristics including chromosomes, gonads or anatomy are atypical. The acronym stands for disorder of sex development, but the concept has been criticised and some instead refer to it as diverse sex development or differences in sex development.

‘The inquiry did not have enough time to thoroughly address intersex people’s needs and conditions, but that has been the case every time the Swedish gender recognition act has been reviewed since it was adopted in 1972,’ says Alm.

It is proposed that the National Board of Health and Welfare should conduct a study about this, and that’s badly needed. INIS, a Swedish support group for intersex people, is requesting knowledge support and clearer regulation.

Children born with DSD are often subjected to surgical procedures soon after birth to normalise their sexual anatomy. The interventions are largely unregulated, and this will not change with the inquiry’s proposal.

‘These procedures are often not based on medical necessity but because social norms dictate that people’s bodies must conform to one of the two conventional sexes. It is not uncommon that the assigned gender, legal and medical, turns out to correspond poorly to the person’s gender identity, however. In these cases, the person has to go through a similar evaluation as the one for transgender people.’

This procedure should not be necessary since the person’s condition is a result of a medical error. But the only available regulation of the surgical procedures is the provision in the Patient Safety Act that the choice of medical treatments must be based on ‘science and proven experience’, the meaning of which is never defined in detail. Thus, in practice it is up to the individual doctor to decide.

Age and maturity are defined based on norms

Signe Bremer, researcher at the Centre for Gender Research at Uppsala University, has studied transgender people’s experiences of sex reassignment, and a current research project focuses on the city as both liberating and risky for transgender people. She, too, is positive to the inquiry’s proposal to separate legal gender from aspects related to medical intervention.

‘The legal separation of people’s possibilities to change legal gender and to have access to medical intervention could be taken to clarify the consequence of the removal of the sterilisation requirement in 2013 – that medical intervention will no longer be a requirement for a people desiring to change their legal gender.’

There are also transgender persons who need access to hormonal and/or surgical treatment but who do not necessarily want to change their legal gender. Bremer stresses the importance of establishing routines for this.

The inquiry also proposes a reduction of the minimum age at which a person’s legal gender can be changed. At present, the gender recognition act provides that a change of a person’s legal gender cannot be initiated until age 18. Bremer is positive to the proposed reduction but questions whether an age limit is needed at all.

‘The concept of maturity is very much linked to social norms. The exact meaning of maturity is not even discussed in the inquiry report – as if it can be determined objectively without any influence of social norms. Maturity and the child’s best interest are therefore always defined based on adults’ descriptions of maturity and what’s best for the child, which risks undermining the children’s possibilities to have a say about their own life situation.’

Transgender persons often give accounts of being considered less mature than people with a lifestyle and gender expression that correspond to established norms. Age-coded conceptions of gender affect for example how transwomen are approached in healthcare.

Legal gender is not questioned

Custodial parents are assigned an important role in the proposed new legislation.

‘That can be a good idea, but transgender people are often exposed to violence and the family is often not the safe environment that lawmakers assume it is. In my view, the important role of custodial parents in the report indicates that the inquiry, despite its good intentions, reproduces adult-hegemonic notions about children’s best interest and bodily integrity.’

Several countries, including Germany, have introduced some form of third legal gender. The Swedish inquiry does not address that issue at all. Nor does it say anything about whether legal genders are at all necessary.

‘I’m for abolishing legal gender and believe that population gender statistics could be obtained in other ways. I would really like to see a discussion on whether we should hold on to the concept of legal gender. But we’re not there yet,’ says Bremer.

Author Jimmy Sand
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