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What Will Malta’s New Intersex Law Mean for the Rest of the World?

We asked the chairperson of the Organisation Intersex International if it might inspire the US and others to catch up.

Image via Organisation Intersex International

Last week, the tiny nation of Malta passed an internationally groundbreaking new law: the "Gender Identity, Gender Expression, and Sex Characteristics Act." The law offers a host of new and powerful anti-discrimination protections and eases the process of gender identity change and administrative recognition for transgender, genderqueer, and intersex individuals. But most significantly, the law bans the performance of non-vital gender assignment surgeries on intersex children before they're old enough to consent to the procedure—a global legislative first.

"Intersex," medically known in the US as Differences of Sex Development, or DSD, refers to the approximately 1.7 percent of children born every year with genitalia, reproductive organs, or chromosomal patterns that don't fit traditional gender norms. This umbrella categorization covers a host of genetic and medical phenomena (from micropenises to undescended testes that turn out to be ovaries to partially fused labias).

Starting in the 1950s, it became standard practice to perform surgeries on infants to make them better fit traditional genders based on whatever the presiding doctor thought their genetalia resembled the most—ostensibly to save them from strife and confusion later in life. However in the 1990s, intersex people, parents, and advocacy groups started to come forward with stories of the emotional, physical, and mental trauma caused by these involuntary surgeries, often concealed from them and others in their lives. Yet despite growing consensus that such knee-jerk surgeries are unethical, the procedures are still regular and legal in most of the world.

This already makes Malta's law revolutionary (even if it still seems to assume that a child should eventually choose to fit into the male-female gender binary). And it's even more revolutionary considering Malta's firmly Catholic, conservative background—the constitution recognizes Catholicism as the state religion and divorce was only legalized in 2011 by a narrow margin. Yet the tiny island's been on a tear of gender and sexuality reforms since the ruling Labour Party came to power in 2013—they began consultative work on this legislation last October.

To get a better sense of the meaning of this new law for the intersex community, VICE reached out to Hida Viloria, the chairperson of the Organisation Intersex International and director of Organisation Intersex International-USA. We asked Viloria, a prominent intersex advocate and the first openly intersex person to speak by invitation at the UN, about the magnitude of Malta's legislation, why this revolutionary advance occurred in Malta, and what prospects for similar intersex-related legislation might be in other nations, including the US, in the near future.

VICE: How radically new is this legislation compared to existing laws and norms?
Hida Viloria: It's the first government ban on what many of my fellow intersex advocates and I call Intersex Genital Mutilation, because of its similarity to Female Genital Mutilation. So in that sense it's very radical as any first legislative human rights reforms are.

However the UN Special Rapporteur on Torture first recommended that all nations ban [these non-consensual surgeries] in the beginning of February 2013. It's been debated and discussed for almost two decades in the media. So the topic is old, but governments stepping in to support our demands for a ban on these surgeries is new.

Does the Malta legislation have any shortcomings?
I've read the policy several times, and honestly the only shortcoming with the legislation itself that the OII-USA has is that the terminology still puts the impetus on the intersex child to refuse these surgeries. It's worded that they must be postponed until the child is old enough to consent.

I tell people: Imagine if we wrote about reparative therapies for homosexuals in that way. The similar phrase would be: Reparative electroshock therapies for homosexual youth must be postponed until those individuals are old enough to give consent. It's easier to notice, when you think about it with a different population group that's less stigmatized today, that the statement implies that these procedures will happen. In that way, it doesn't entirely refute prejudiced perspectives against intersex traits and intersex people needing to be fixed in some way.

Legislatively, though, the law works perfectly to meet our demands, which are that we are the only ones that have the right to make decisions over our genitals and our reproductive sex organs, which is known as "bodily integrity," which was also called for by the European Council. It's something we've been fighting for as a community for decades. It's the one thing that we all agree upon globally: that these surgeries should be banned.

As someone whose parents gave me the right to bodily integrity and self-determination, I can say from personal experience that I feel incredibly blessed that this was the case, and that the decision to ban Intersex Genital Mutilation (IGM) and give us the right to be who we are is the sound, ethical, humane way to treat intersex people.

You've mentioned organizations that promoted this idea in the past. But have any other nations or legislative bodies come up with anything close to the Malta legislation?
Well, in 1999 Colombia had legislation which outlawed in one case surgery on an infant until they were five years old. It was one case, which does set precedent, but is very different from a nationwide ban. Again, [that's] still problematic because at five years old the parents can take the child in unless the child really puts up a big fight. As everyone in the intersex community knows, and many in the LGBTQ community know, we're pressured into things in youth. So I think we need to be careful that these surgeries are still not suggested and that children and parents are not pressured to go through that.

The same can of worms about consent would apply to Malta's law too, wouldn't it?
That is the one general limit of the Malta legislation. It can't really do that. It says, until the child is old enough to give consent. You could have cases where the parents are pressuring the child. I would prefer something that says, unless the child requests such procedures. However, even that, how easy would it be to lie in court that, yes, the child requested this, but changed their mind later, for example.

So legislation can only do so much. But [Malta] is a fantastic victory for the community.

How did this world first happen in Malta, of all places?
Malta had a unique situation where one of the members of their government, Silvan Agius, is a tremendous intersex ally. Before he started working [as the Human Rights Policy Coordinator at the Maltese Ministry for Social Dialogue, Consumer Affairs, and Civil Liberties in 2013], he was with the International Gay, Lesbian, Transsexual, Transgender, and Intersex Association, and they have been very intersex inclusive. He, as a representative of the organization in Europe, organized the first international convention of intersex advocates called the International Intersex Forum. He helped bring together a global [intersex] community. And in its third year, he brought the Forum to Malta. (I organized that Forum along with him and Ruth Baldocchino, another tremendous ally) We had the world's top intersex advocacy leaders there, and [Agius] invited Helena Dalli [the Minister at his Ministry in Malta], to meet us and attend the forum.

She heard about our need for bodily integrity firsthand. I think this kind of hands on connection between the community and government legislators in Malta is what really allowed this. Just like Obama's daughters had two friends with gay parents who helped him to understand gay marriage, she had a personal opportunity to connect with intersex people that helped her to understand the need for this legislation.

You're US based and have some media visibility. So why don't you get the same sort of access or connections to the government here as the community did in Malta?
One advantage that the community has in Europe and also in Australia over the US is that neither Intersex Genital Mutilation nor our pathologization originated there. We were pathologized in the US in 2006 as Disorders of Sex Development (DSD), which became our official medical label (and still is) rather than just intersex, or looking at each variation separately and by name. That didn't happen in Europe and Australia, where the majority of organizations rejected the DSD label.

In Europe, the intersex movement bonded with the LGBT community. In the US, the first organization [the Intersex Society of North America], did not want to work in alliance with the LGBT community, where LGBT leaders were told that they should not add the I to LGBT.

In my opinion, that has slowed us down, because, as you can see, the needs of the trans and intersex community are very similar in certain ways. We both have gender recognition issues that sometimes come up as adults, such as changes on our IDs, and being targets of discrimination if we look gender variant. There's an issue of having choices and being allowed to make choices over our bodies that we share. In our case, it's mostly that we get treatment we don't want and for trans people, they sometimes are not given the right to get treatment that they do want.

How are you trying to address those problems now?
Right now, we're building alliances with the LGBTI community in the US, and others, as well as continuing to advance intersex visibility and dialogue with US government officials. OII-USA initiated conversations with the US State Department in 2012 (and is still in conversations) on the need to have LGBTI inclusion and the fact that we're not yet included in any anti-discrimination legislation, for example—even in the rhetoric of it. You have sexual orientation and gender identity, which don't cover intersex people, in existing legislation.

Malta added sex characteristics to this. Australia added intersex status to this. We need something similar to that in the US. But the framework of intersex people needs to change from this medicalized view that's been so popular—we're often talked about even in advocacy organizations as patients. Or simply the children's issue is the only issue that gets looked at, but we're actually real, live adults with real human rights needs. The whole community needs to be looked at. And LGBTI inclusion is helpful with that.

If ISNA had to tell LGBTQ leaders to include intersex years ago, what's the resistance now to including an I in the acronym when you're asking for it?
[It's] the same argument as when the T was added: That not all trans people are homosexual. It's not a sexual identity, so why add it? Well, what we all have in common is that we're discriminated against because we break sex and gender norms. And the more visible that is, the more we're discriminated against.

I often say we're on the frontlines of homophobia and transphobia, because whether or not we grow up to be LGBT, it's assumed that we will, and there's a false belief that these surgeries will stop that. So in a sense these surgeries are trying to prevent LGBT adults. They're incredibly homophobic and transphobic as well as interphobic, and that's why I really believe that we need to be included in the community. And doing so will make it very easy for legislators to understand what the real human rights situation is here.

Are you hoping that the Malta legislation will help you get recognition in LGBTQ communities and in legislative circles in America?
I think that's already happening. Every civil rights movement has a difficult initiatory period and we're in ours right now. So the only reason it's not moving faster is just because we're in the early phases. But given that, I think that this [Malta] ban is an incredibly positive development.

What incentive do you think the US has to follow Malta in its intersex rights advances?
The United States has been a leader in civil rights and social inclusion of people that fall outside sex and gender norms. And OII-USA encourages the US government to continue to be a leader in LGBTI equality by supporting its intersex citizens' right to be who they are by enacting a ban on Intersex Genital Mutilation.

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