Intersexuality and the ‘Right to Bodily Integrity’
| Published date | 01 October 2016 |
| DOI | 10.1177/0964663916636441 |
| Date | 01 October 2016 |
| Author | Francesca Romana Ammaturo |
| Subject Matter | Articles |
Article
Social & Legal Studies
2016, Vol. 25(5) 591–610
Intersexuality and the
ª The Author(s) 2016
Reprints and permission:
‘Right to Bodily
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DOI: 10.1177/0964663916636441
Integrity’: Critical
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Reflections on Female
Genital Cutting,
Circumcision, and
Intersex ‘Normalizing
Surgeries’ in Europe
Francesca Romana Ammaturo
University of Roehampton, UK
Abstract
In 2013, the Parliamentary Assembly of the Council of Europe passed a resolution on
‘children’s right to bodily integrity’. In the resolution, concerns were expressed for about
practices carried out on children without their formal consent. Among these practices,
female genital cutting (FGC), non-medical circumcision and ‘normalizing’ surgeries for
intersex children were listed among these practices. As a result of the adoption of the
resolution elicited, strong reactions, ensued especially from Jewish and Muslim com-
munities, which widely practices male circumcision. Simultaneously, however, intersex
activists welcomed the resolution, as it gave legitimacy to their long-standing call to
establish a common framework for the evaluation of all invasive medical and surgical
practices on children carried out without their informed consent (Preves, 2005). This
article uses an examination of the resolution to reflect on both the emerging concept of
the ‘right to bodily integrity’ and on current developments in the field of intersex human
rights in Europe. Firstly, the article considers the political process leading to the adoption
of the resolution, in order to understand and appraise the limitations of the choice to use
the framework of the right to bodily integrity to jointly address jointly issues of FGC,
Corresponding author:
Francesca Romana Ammaturo, University of Roehampton, UK.
Email: francesca.ammaturo@roehampton.ac.uk
592
Social & Legal Studies 25(5)
circumcision and intersex ‘normalizing surgeries’ jointly, without fully engaging with the
cultural, religious and social factors underpinning each of these phenomena. Following
this discussion, the article will further analyses the specific case of intersex rights, par-
ticularly in relation to the difficult balance between a medical and the juridical approach
to intersexuality. This reflection will ultimately be useful to assess the role of the res-
olution in helping to subtract intersexuality from the sole gaze of medical practitioners at
the advantage of a human rights approach which may best protect the interests of
intersex children and adults.
Keywords
Bodily integrity, council of Europe, circumcision, female genital cutting, intersexuality
Introduction
At a global level, human rights discourses on intersex children and adults remain in a
marginal position. Only a handful of countries, such as Colombia, Australia, Germany
(Greenberg, 2012: 107) and Malta, have to date actively dealt with the legal status and
entitlements of intersex children and persons. Yet in Europe, there seems to be a momen-
tum behind advocacy for the rights of intersex children and adults, represented by the
growing interest on the part of both the European Union (Agius and Tobler, 2011) and
the Council of Europe (CoE) (Schneider, 2013). Both institutions have started to address
the existence of concerns for intersex children and adults from a human rights perspec-
tive and, in the future, interesting developments could be anticipated in both the political
and legal forums.
In acknowledging the emergence of human rights discourses on intersexuality in the
European context, this article focuses in particular on resolution 1952 (‘The resolution’)
adopted by the Parliamentary Assembly of the Council of Europe (PACE) in October
2013, which addresses the broad theme of ‘children’s rights to physical integrity’ and
encompasses a broad range of issues such as intersex genital surgeries, female genital
cutting (FGC), male (religious) circumcision and cosmetic surgeries performed on chil-
dren. The resolution is interesting in two respects. Firstly, it contains an attempt to bring
the issue of the rights of intersex persons to the fore at the CE, the main continental
intergovernmental forum on human rights. As such, it raises important questions con-
cerning the extent to which it can effectively challenge the predominant medical protocol
for treating intersex children and contribute to opening up a discussion at the CE about
the social construction of sex and gender. Secondly, the resolution does something
unprecedented: namely, it resorts to the framework of children’s rights to physical
integrity to cluster issues which have traditionally been addressed separately, such as
intersex genital surgeries, FGC, male (religious) circumcision and cosmetic surgeries
performed on children. In doing so, the resolution indirectly answers the concerns of
activists and scholars (Chase, 2006; Ehrenreich and Barr 2005) who have claimed that
condemnation of FGC should be matched with equal condemnation of intersex genital
surgeries or circumcision in the Western context. This article will suggest that, whilst
Ammaturo
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innovative, the decision to group together these issues within the framework of a ‘right to
physical integrity’ adopted in the resolution may not necessarily be free from covert
issues of cultural imperialism.
The objective of this article is twofold. Firstly, it seeks to discuss critically the
political process leading to the adoption of the resolution in light of the decision to
group together FGC, religious circumcision and intersex ‘normalizing surgeries’. In this
regard, the article suggests that, beyond the good intentions of those who proposed and
voted in favour of the resolution, the complex web of cultural, religious and social
factors intervening in the perpetuation of practices such as FGC, circumcision and
intersex normalizing surgeries has been left unaddressed by the proponents of the text.
In so doing, the resolution not only fails to achieve the goal of opening up new spaces for
intercultural or inter-religious dialogue but also relegates the discussion of the implica-
tions of the medicalization of intersexuality to the background of a highly political and –
almost – ideological discussion on FGC and circumcision.
Secondly, this article uses the resolution as a starting point to reflect further on current
developments in the field of the rights of intersex children and adults. In particular, the
resolution can be seen as an attempt to move from the current model of ‘medicalization’
of intersexuality to a model of ‘juridification’ of intersexuality. This shift from medica-
lization to juridification, strongly advocated for by intersex activists, substantially con-
sists of a transfer of power from medical practitioners to legal practitioners to regulate
intersexuality. Whilst medical practitioners exercise their authority in deciding what sex
should be ‘attributed’ to the intersex infant, legal practitioners are called upon to protect
the right of the intersex child and, possibly, help to preserve her/his physical integrity.
This transfer of power, however, may be problematic in itself, as it may cast intersex
individuals as object of productive powers, according to a Foucauldian perspective,
rather than active agents of human rights.
The article is composed of three sections. It begins with a critical analysis of the
political process leading to the adoption of the resolution at PACE. This is followed by a
discussion on the resolution’s Rapporteur decision of grouping FGC, circumcision and
intersex normalizing surgeries under the same concept of the right to bodily integrity.
The analysis moves on to consider, more specifically, the resolution as an example of the
juridification of intersexuality as opposed to the medicalization of intersexuality and to
reflect on the opportunities and limitations that this different approach may entail.
The Resolution of the Pace on Children’s Rights
to Physical Integrity
In October 2013, PACE adopted a resolution on Children’s right to physical integrity,
which simultaneously addressed the issue of intersex genital surgeries, practices of
‘female genital cutting’ and the circumcision of boys for religious reasons, as well as
other cosmetic surgical treatments performed on children. Whilst the resolution is not
binding on member states, it signals both emergence of an interest in the issue of
intersexuality and an unprecedented attempt to group together issues which, up to that
point, had been addressed separately in the various national and international human
rights forums. The resolution was the product of the work of the German Member of
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Parliament (MP) Marlene Rupprecht who, both at PACE and at the German Bundestag,1
has been active on children’s rights for over 13 years. In this regard, Germany occupies a
crucial position, as it has been the first European country explicitly to regulate2 the legal
status of children born with intersex conditions.3 However, as with the German law
(Travis, 2014), the resolution proposed to PACE by Rapporteur Rupprecht is not free
from controversial aspects. In fact, unsurprisingly, the conflation of intersex genital
surgeries, FGC and religious circumcision of boys in the text of the resolution has
sparked a heated debate inside and outside the Assembly, especially in relation to the
juxtaposition of religious circumcision4 for Jewish and Muslim boys and the issue of
FGC (Schuz, 2014). Moreover, whilst the Rapporteur denied that religious circumcision
had...
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