Making the State Responsible: Intersex Embodiment, Medical Jurisdiction, and State Responsibility
| Author | Mitchell Travis,Fae Garland |
| Published date | 01 June 2020 |
| DOI | http://doi.org/10.1111/jols.12223 |
| Date | 01 June 2020 |
JOURNAL OF LAW AND SOCIETY
VOLUME 47, NUMBER 2, JUNE 2020
ISSN: 0263-323X, pp. 298–324
Making the State Responsible: Intersex Embodiment,
Medical Jurisdiction, and State Responsibility
Fae Garland∗and Mitchell Travis∗∗
Through consideration of new developments in the United Kingdom’s
intersex policy, this article traces the ways in which responsibility is
produced, naturalized, and avoided by individuals, institutions, and
the state. Jurisdiction is identified as a barrier to the attribution of
responsibility that must be overcome to achieve progress in relation to
the needs of intersex people. By bringing together jurisdictional analysis
and vulnerability theory, this article demonstrates how the state has
traditionally abrogated responsibility by compartmentalizing specific
practices as governed by medical authority. It highlights that such
accounts mask the role of the state in the creation of jurisdiction and the
ways in which governance is conducted. Challenging these boundaries
allows vulnerability theorists to move the state towards greater levels of
responsibility.By combining these theoretical tools, the article enhances
the practical utility of vulnerability theory and advances an important
agenda for intersex people.
INTRODUCTION
This article is born out of a concern that despite growing research evidence
and international condemnation from supranational bodies such as the United
∗Law, The School of Social Sciences, Williamson Building, The University of
Manchester, Oxford Road, Manchester, M13 9PL, England
fae.garland@manchester.ac.uk
∗∗ School of Law, Liberty Building, University of Leeds, Leeds, LS2 9JT,
England
m.travis@leeds.ac.uk
We are very grateful for the comments and feedback on an earlier version of this article
from Annie Austin, Margot Brazier, Sarah Devaney, Chris Dietz, Simona Giardino, David
Griffiths, Jen Hendry, Amanda Keeling, Amrita Mukherjee, Michael Thomson, Julie
Wallbank, and the twoanonymous reviewers. Any mistakes remain our own.
298
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution
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© 2020 The Authors. Journal of Law and Society published by John Wiley& Sons Ltd on behalf of Cardiff University (CU).
Nations,1the Council of Europe,2and the European Parliament,3states are
failing to prohibit medical professionals from performing non-consensual
and unnecessary gender-normalizing interventions on intersex children.4Our
previous work in this area has clearly identified key areas of challenge for
intersex-embodied people,5using a vulnerability lens to engage with notions
of harm, state responsiveness, and resilience.6Yet, despite this work, in the
intersex context, the majority of states remain largely unwilling to legislate
on this area.7As the United Kingdom’s Government begins to consider policy
developments with regards to intersex,8we are accordingly concerned that its
response may similarly fail to engage with the issues identified by empirical
research with the intersex community.9This article therefore interrogates
the ways in which responsibility is produced, naturalized, and dismissed by
1 J. Mendez, UN Human Rights Council, Report of the Special Rapporteur on
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2013),
at <http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/
Session22/A.HRC.22.53_English.>; United Nations, ‘Joint UN Statement on
Ending Violence and Discrimination against Lesbian, Gay, Bisexual, Transgender
and Intersex People’ (2015), at <https://www.ohchr.org/en/issues/discrimination/
pages/jointlgbtistatement.aspx>.
2 Council of Europe Commissioner for Human Rights, Human Rights and Intersex
People (2015), at <https://wcd.coe.int/ViewDoc.jsp?Ref=CommDH/IssuePaper%
282015%291&Language=lanEnglish&Ver=original>.
3 European Parliament, ‘European Parliament Resolution on the Situation
of Fundamental Rights in the EU in 2016’ (2018) para. 68, at <http:
//www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-
2018-0056+0+DOC+XML+V0//EN>.
4 Malta (2015) and Portugal (2018) are exceptions to this, with Iceland rejecting a
similar bill in 2018.
5 F.Garland and M. Travis, ‘Legislating Intersex Equality: Building Resilience through
Law’ (2018) 38 Legal Studies 587; S. Monro et al., Intersex, Variations of Sex
Characteristics, and DSD: The Need for Change (2017) University of Huddersfield;
M. Travis, ‘Accomodating Intersexuality in European Union Anti-Discrimination
Law’ (2015) 21 European Law J. 180.
6 M. Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’
(2008) 20 Yale J. of Law and Feminism 1; M. Fineman, ‘The Vulnerable Subject
and the Responsive State’ (2010) 60 Emory Law J. 251; M. Fineman, ‘Elderly
as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility’
(2012) 20 The Elder Law J. 101; S. Marvel, ‘The Evolution of Plural Parentage:
Applying Vulnerability Theory to Polygamy and Same-Sex Marriage’ (2014–2015)
64 Emory Law J. 2047; B. Clough, ‘Vulnerability and Capacity to Consent to Sex:
Asking the Right Questions?’ (2014) 26 Child and Family Law Q. 371; M. Travis,
‘The Vulnerability of Heterosexuality: Consent, Gender Deception and Embodiment’
(2018) 28 Social and Legal Studies 303; Garland and Travis, id.; J. Mant and J.
Wallbank, ‘The Mysterious Case of Disappearing Family Law and the Shrinking
VulnerableSubject: The Shifting Sands of Family Law’s Jurisdiction’ (2017) 26 Social
and Legal Studies 629.
7 Garland and Travis, op. cit., n. 5.
8 Government Equalities Office, ‘Variations of Sex Characteristics Call for Evidence’
(2019).
9 Garland and Travis, op. cit., n. 5.
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© 2020 The Authors. Journal of Law and Society published by John Wiley& Sons Ltd on behalf of Cardiff University(CU).
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