Commissioners: Felipe González, Tracy Robinson and Rosa María Ortiz

Petitioners: Mauro Cabral, Natasha Jiménez, Advocates for Informed Choice, Núcleo de Pesquisa em Sexualidade e Relações de Gênero, Universidade Federal do Rio Grande do Sul, Consórcio Latino Americano de Trabalho sobre Intersexualidade

State: Argentina, Brazil, Costa Rica

Petitioners testified on the plight of intersex individuals (people born with undefined genitals) on March 15, 2013, at the first-ever hearing on the issue before the Inter-American Commission on Human Rights (Commission, IACHR), where the petitioners shared their own personal experiences and discussed broader issues facing intersex people. Important to the petitioners was their assertion that the medical interventions applied to newborns under the theory of correcting a physical condition instead constitutes torture and flagellation in violation of the American Convention on Human Rights.

The petitioners detailed how most Latin American countries treat intersex newborns as children whose genitals have to be “normalized.” As a consequence, doctors subject them to surgical treatments that the petitioners asserted practically mutilates the children’s genitals. These procedures can cause lifelong pain and insensitivity.

One petitioner from Costa Rica said that in that country, society considers it intolerable that a person does not conform to “regular” body standards. What the society cannot see, the petitioner asserted, are the consequences of the supposed “normalization,” which affect not only the child, who suffers the operation, but also the child’s family.

The petitioner also said that being intersex is not a fatal condition that must be cured—a person can be intersex all the person’s life. However, the reaction of doctors when faced with a body that is not “normal” is to pressure families to consent to an operation while the child is still an infant. This practice results from an erroneous idea that after the first year it will be too late and other genital problems can arise—an invalid understanding that resulted largely from the lack of medical study on intersex conditions. The resulting surgeries are particularly troublesome, the petitioner said, because the child does not have the opportunity to consent the operation, which interferes with the child’s right to an identity.

In Costa Rica, the decision can be made even outside of familial consent under Article 46 of the Costa Rican Code of Children and Adolescents, which provides that in the urgent cases where parents deny hospitalization, surgery, and treatment of a child, the doctor can make the decision. This scenario, the petitioners argued, combined with doctors’ lack of medical information on the intersex condition, has resulted in thousands of newborns subjected to surgeries that are neither consented to nor necessary. An intersex child will not die for his or her condition, but he or she could suffer and die because of the unprofessional surgeries.

In order to protect the rights of intersex individuals, the petitioners made several recommendations, that the Commission: investigate the violation of intersex peoples’ rights in the Americas, recommend medical training to doctors that would perform surgeries, endorse the assertion that corrective surgery should not be the first option, urge states to create training programs for parents with newborn intersex children, as well as institute promotional campaigns in schools and universities to inform the general public about intersex people and the importance of respecting their rights.

In response, Commissioner Tracy Robinson noted the significance that the Commission had convened a hearing related to intersex people as part of the new LGBTI (lesbian, gay, bisexual, transgendered, and intersex) Unit, which seeks to develop the protection of human rights of this sector of society.

Commissioner Rosa María Ortiz expressed her concern about the interpretation of the Children and Adolescents Code made in Costa Rica and asked what parents should do when they have an intersex newborn. The petitioners responded to her question by statingthat parents need to be trained and a good practice could be to form groups of parents that have the same experience so can help each other and find a place to the understood.

Commissioners Felipe González and Robinson asked if the petitioners know of any good practice that could be the starting point for the Commission’s efforts. The petitioners responded that Colombia has a law protecting  intersex people’s ability to determine their identity and Argentina has a citizen registration process that permits modifications in the future, allowing a person to change both the a name and gender identity once a person makes such a decision. However, the petitioners stated that in most of Latin America, protection for intersex individuals is almost nonexistent. The petitioners said that because of this situation they requested that the IACHR take steps to pronounce the rights of intersex people in the Americas.