This month, the UK has a historic opportunity to improve trans rights. The government is currently consulting the public on whether it should make it easier for trans people to have their gender legally recognised through the Gender Recognition Act.
Many voices in the British media have argued that the proposed changes to the Gender Recognition Act “go too far” in allowing adults to decide their own gender. Strangely, these arguments are not limited to the usual right-wing suspects, fearful of change and gender-mixing. Certain feminists have even claimed that allowing self-identification of gender will somehow endanger all women.
As a British intersex woman, I’m going to tell you that even the proposals for updating the Gender Recognition Act don’t go nearly far enough. The section of the Gender Recognition Act government consultation addressing intersex people apologetically states:
… there are range of issues pertinent to intersex people, some of which include, unnecessary medical interventions performed on infants, correcting birth certificates, barriers in accessing healthcare services, psychosocial provision, support groups, as well as, issues in education and in the workplace. These issues are outside of the scope of the GRA consultation.
While admitting the concerns the intersex movement have been raising for years shows promise for future legislation, it suggests that the proposed reforms to the Gender Recognition Act only represent a token amendment to the laws.
This is troubling, since intersex people are defined by our variations in sex traits, with our bodies falling in between perceived norms. These variations often lead to bureaucratic gender markers that damage our wellbeing being assigned to us, both by not matching our sense of self, and justifying further abuses against us. So the reformed Gender Recognition Act seems unlikely to offer much to directly tackle the issues British intersex people face, and risks being another missed opportunity to protect our rights. This would not be the first failing in recent years: there's no mention of intersex people in The Equality Act 2010. Yet we face severe and systemic issues, which are in urgent need of legal redress.
Not all intersex variations are immediately obvious at birth. But infants born with those that are obvious run the risk of being given “corrective” surgeries. These procedures (commonplace since the 1950s) aim to bring intersex bodies in line with the social norm of individuals being tidily separated between male and female. For the most part, these procedures are primarily cosmetic, and performed on children too young to consent personally.
We're only recently starting to clearly see the devastating effects of these largely medically unnecessary operations, as the intersex movement has shared experiences and expose the harms of this normalised violence. Foremost among its failings from an intersex perspective, the Gender Recognition Act makes no effort to end these practices by the medical establishment. The process of gender becoming “recognised” by the medical profession will remain one rife with routine human rights violations. The Female Genital Mutilation Act 2003 outlaws all female genital cutting, with up to a 14-year jail sentence, but these laws can go unenforced in the case of intersex infants (even those assigned female).
Martin Hasani was born with 5alpha reductase deficiency syndrome, which can cause a range of intersex states among infants with XY chromosomes. In Martin’s case this resulted in a hypospadias – a relatively common variation, where the urethral opening develops somewhere other than the tip of the penis. Though a hypospadias only causes minor effects on day-to-day living (children with one usually have to sit to pee), Hasani’s doctor Aivar Bracka performed a total of 11 surgeries between the age of three months and 17 years old, each intended to “normalise” Hasani’s genitals. The last of these clearly served no practical purpose, with then-teenage Hasani being left unclear as to why they were happening at all.
Hasani was one of several of Bracka’s patients who pursued a legal challenge against him, for alleged sexually abusive behaviour. The alleged offences included taking unnecessary photographs of his underage patients’ erections, exposing himself to them, comparing his genitals to theirs, and “checking them for sperm.” Hasani’s own account of the abuse can be watched here. After a full investigation by the General Medical Council, Bracka was struck off from medical practicing, with most of the charges against him declared “proven.” Prior to his exposure, Bracka had been considered a leading expert in hypospadias “corrections,” devising a procedure he named after himself. In horrifying irony, he even appeared in a 1990s BBC 2 show, entitled Trust Me, I’m A Doctor, performing operations on a child.
Hasani tells me that Bracka’s abuses had left them feeling “stuck with a male body, with gender dysphoria as a result.” They described their treatment by Bracka as experiments performed on a human guinea pig. Like many intersex people I know, Hasani says that they would now prefer to be officially identified by an “X” marker, rather than as male or female.
Based on their experiences, Hasani also tells me that such surgeries should not remain legal: “Anything considered ‘masculinising’ or ‘feminising’ should be banned. There should be an external body that defines which surgeries can be considered. These are questions that doctors alone should not have ultimate authority over; intersex organisations and gender specialists should also be involved.”
In recent years, intersex activism has flourished both in the UK and around the world. The UK intersex movement consists of groups including Intersex UK, UK Intersex Association and Organisation Intersex International (UK); as well as a rapidly expanding network of individual activists. They are united in their commitment to ending violations of intersex people’s human rights.
The Gender Recognition Act's proposed changes still fail to address these concerns in ways emphasised by legal expert Dr. Fae Garland. As Garland argues: “a self-declaratory model is generally a positive step, but will do very little by way of intersex human rights.” Garland also warns that the current Gender Recognition Act could not be considered sufficient. “I cannot stress enough that the main concern of the intersex community is to stop unnecessary non-therapeutic surgeries on children and infants,” she tells me. “The GRA does not tackle these concerns and it is important that any amendments to the GRA do not silence intersex voices, either by making people think the ‘job is done.’”
While the proposed reforms to the GRA would be useful for some intersex adults, Garland points out that a clear framework for a gender correction doesn't exist yet, and the GRA wouldn't introduce one. Intersex writer and activist Valentino Vecchietti echos this concern: “The UK intersex movement is looking for distinct legislation to afford intersex people flexibility in making corrections regarding sex assignment on birth certificates. And which affords recognition of the unique circumstance of being born with physical characteristics that aren't typically 'male' or ‘female.’”
Birth certificates can be both an ongoing nuisance for intersex people trying to live our day-to-day lives, and a point of bureaucracy-induced stress for their parents in the first month after birth. Under current British law, parents of intersex children are effectively forced to “pick a side”: assigning an infant a sex is a mandatory part of registering a birth. Infants must be registered within 42 days of birth (only 21 days in Scotland). This can produce the perfect climate for parents being coerced towards approving surgeries that an increasing body of evidence suggests are unnecessary for the wellbeing of the children in question.
Later in life, having a birth certificate that doesn't match your apparent lived gender can impact on a wide-ranging set of everyday activities, from education to engagement in sports and adoption. Personally, I found the easiest route to gender correction through the same bureaucratic slog required by other (non-intersex) trans people. This involved convincing multiple medical professionals that longstanding gender dysphoria was likely to be permanent, completing a deed poll, and receiving a letter confirming my name change from my employer. This hassle would be considerably streamlined by the proposed reforms to the GRA, allowing for the more straightforward process already adopted by countries like Malta and Ireland – I would gladly have “corrected” my birth certificate instead, if I was ever given the chance.
Holly Greenberry, an intersex activist and co-founder of the community group Intersex UK., stresses how important it'd be to make birth certificate corrections easier with new legislation. “The only person who can make this decision, is that person themselves,” she says. Greenberry also suggests that reform to the GRA should allow for correction of a birth certificate at any age, allowing for a better informed decision once children are capable of speaking for themselves. She also suggested the GRA may need to be renamed the “Gender and Intersex Recognition Act,” to make its inclusivity clearer.
While a more accepting society of intersex variations may take many years to achieve, on an international level, legal changes supporting intersex rights are happening. In June, intersex activist Alex Jürgen won a legal challenge with the Austrian Constitutional Court, ruling that the government was obliged to grant Alex an “X” gender marker. Several Austrian intersex activists I know are now planning to register themselves as “X,” now the legal right of any adult. But activists have also voiced caution about how much this marker would assist younger intersex people.
Back in the UK, there is some hope of new breakthroughs. In July, Government Equality Office announced a national “call for evidence” to “improve the evidence relating to intersex people’s experiences.” In the meantime, it seems clear that the Gender Recognition Act will offer limited gains for a British minority community, which still faces violations of our human dignity as a matter of routine.
With thanks to Mitchell Travis, Valentino Vecchietto, Tinou Ponzer, Martin Hasani and Holly Greenberry (Intersex UK) for their advice, introductions and shared experiences. Join VICE and Stonewall in calling on the government to make vital changes to the GRA and submit your response to the consultation. Follow all of our Recognise Me coverage here.