Do parents really know best? Informed consent to sex assigning and ‘normalising’ treatment of minors with variations of sex characteristics

Abstract

This paper aims to explore how pervasive constructions regarding a person’s sex and gender identity in society and law limit the human rights of persons with variations of sex characteristics. Societal culture promulgates a binary (male/female) gender ideal which includes standards of normality for our bodies. People who do not easily fit these culturally constructed norms, such as persons with variations of sex characteristics, encounter numerous difficulties. The legal conceptualisation of ‘sex’ according to the binary maintains the medicalisation of variations of sex characteristics and reinforces the focus on sex ‘normalising’ treatment of children who are too young to provide their informed consent. The paper makes use of Belgium as an illustration. Not only is comprehensive legal research concerning variations of sex characteristics absent in Belgium, but the country has also been responsive to human rights claims regarding sexual identity in recent years. With regards to the sex assigning or ‘normalising’ treatment of persons with variations of sex characteristics, this paper argues that by accepting the substitution of the child’s informed consent for the opinion of the legal representative in the absence of urgent medical necessity, Belgian law fails to protect the former’s right to bodily integrity and best interests.

Keywords:

• Variations of sex characteristics
• intersex/DSD
• sex ‘normalising’ treatment
• personal autonomy
• child’s best interests

Acknowledgements

I thank the editors of the special issue of Culture, Health & Sexuality, as well as peer reviewers for their valuable feedback on earlier drafts of this paper.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Concluding observations of the UN Children’s Rights Committee (CRC) on Belgium, CRC/C/BEL/CO/5-6 (2019).

2 Concluding observations of the UN Committee on Economic, Social and Cultural Rights on Belgium, E/C.12/BEL/CO/5 (2020).

3 Persons with variations of sex characteristics are also often referred to as intersex persons.

4 Resolution 2191 (2017) Promoting the human rights of and eliminating discrimination against intersex people.

5 See, for instance, concluding observations of the CRC on South Africa CRC/C/ZAF/CO/2 (2016); Denmark CRC/C/DNK/CO/5 (2017); Spain CRC/C/ESP/CO/5-6 (2018); Argentina CRC/C/ARG/CO/5-6 (2018); Italy CRC/C/ITA/CO/5-6 (2019).

6 Act of 22 August 2002 concerning the rights of the patient, Belgian Gazette 26 September 2002, p. 43719.

7 Parl. Doc. Chamber of representatives, 50-1642, p. 29, 30, 34, 35.

8 Parl. Doc. Chamber of representatives, 50-1642, p. 95.