Intersex Genital Mutilation: France Continues To Ignore International Pressure
Author: Elias Tissandier
Department: Europe Team
According to a study for the Council of Europe, 1.7 percent of persons born in France every year are intersex. As defined by the UN, the term ‘intersex’ refers to persons whose ‘sex characteristics’ – in the sense of the Yogyakarta Principles’ definition – do not “fit the medical and social norms for female or male bodies” (International Commission of Jurists, 2017). In an attempt to make intersex persons fit the binary social and medical norms of our societies, intersex children are often subjected to genital operations, hormone treatment and other procedures aimed at ‘fixing’ their bodies. France has been called by multiple UN treaty bodies, namely the Committee on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Committee Against Torture (CAT) and the Committee on the Rights of the Child (CRC), to stop such practices. More specifically, genital surgeries on newborn intersex babies have been qualified as amounting to harmful practices and torture as early as 2016.
France’s active refusal to implement
To this day, France has failed to implement the recommendations of the UN treaty bodies. For instance, the preparatory work for the next periodic report of the CRC mentions the exact same violations regarding Intersex Genital Mutilation (IGM). More than ignoring the recommendations, France has explicitly rejected the recommendations. Indeed, the prohibition of IGM was advocated by government agencies such as the DILCRAH and was presented to the Parliamentary Assemblies as an amendment to the public health code. However, all initiatives to this day have been struck down and of the 52 Concluding Observations made by UN treaty bodies, none were implemented.
Nevertheless, advocacy for the rights of intersex persons and the prohibition of IGM is active in France, as shown by the direct implication of activists and NGOs in court proceedings and reporting procedures at the national level. However, seeing the lack of action from the state, it is clear that whatever pressure is put on the French government, it does not impact its policy of harmful practices. Moreover, regardless of the international consensus that there is no medical necessity for sex assignment surgery and their qualification as torture under the Convention Against Torture, France is making a conscious choice to follow (outdated) medical perspectives on intersex status. Building its argument on the best interest of the child and defining IGM as necessary in pursuing that principle, France approaches the issue of intersex status as an ‘agree to disagree’ issue rather than considering intersex persons as equal citizens deserving equal protection. This is illustrated by France’s firm commitment to the EAY/ESPU Paediatric Urologic Guidelines, which render IGM mandatory for the maintenance of the best interest of the child (EAU/ESPU, 2021). Furthermore, the hypocrisy of France’s approach to IGM is particularly shown through its opposite approach to Female Genital Mutilation (‘FGM’), which is entirely prohibited under French criminal law. Specifically, performing FGM on a minor is considered an aggravating consequence. In this sense, the penalty of 10 years of imprisonment is automatically bumped to 15 years when the victim is a minor under 15 years old (Article 222-10 of the French Penal Code). Now considering that IGM and FGM are comparable in terms of impact on the (physical and mental) health of victims, it appears clear that France does not recognize intersex persons as deserving of equal protection.
Bridging those discrepancies between the state’s existing legal framework and proper protection against violation of bodily integrity requires a deep restructuring of the approach to intersex status as a normal development of human rights bodies rather than a divergence from the endosex norm. This implies awareness-raising around intersex status both within decision-making environments and in the society as a whole. This should be done by involving the intersex persons in the decision making processes that impact them. While this has been attempted, with community consultation in the legislative process, there is yet to be serious weight attached to the outcome of those procedures in order to finally see their translation into law and effective protection.
The New Loi Bioétique (bioethics law) introduced on the 2nd of August 2021 by Macron’s government deals directly with the status of intersex individuals. However, it failed to put any limitations on the surgical operations of intersex newborns as was originally suggested by the government during the drafting process. The Parliamentary Assembly rejected the amendments to the bioethics law regarding the mutilation of intersex children with 72 votes against nine. After Macron’s re-election, there is little hope that this law, which he himself brought into action, would be reversed. Notwithstanding the lack of an action at the national level, there might be hope for change through higher jurisdiction. Especially, for example, through the European Court of Human Rights (ECtHR) to which France is a high contracting party. The ECtHR is currently undertaking a case regarding practices of IGM, which, hopefully, will provide a positive change in practice, as called by NGOs and the intersex community.
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