TY - JOUR
AU - Slokenberga,, Santa
AB - Abstract Nonconsensual gender-conforming interventions on children with intersex conditions have recently come under sharp criticism from human rights authorities within the United Nations, the Council of Europe, and the European Union, which have identified these interventions as violating children’s rights to bodily integrity, privacy, and protection from violence, torture, and degrading treatment. Responding largely to requests for intervention from nongovernmental organizations, these authorities have called upon nations to reform their legal frameworks, both to prevent these rights violations and to redress them. To date, however, few nations have endeavored to prohibit nonconsensual gender-conforming procedures on children with intersex conditions, and none have enacted significant reforms of their frameworks to redress rights violations. This particular ‘compliance gap’ between human rights recommendations and law reform stems from a failure of national legal orders to formally recognize the scope of rights that are threatened by nonconsensual gender-conforming interventions—rights that are well-established as part of states’ positive obligations to prevent physical and psychological harm to children. This article, therefore, analyzes the nature of the rights at stake and the importance of reporting human rights violations to generate direct calls for reform wherever violations occur. The article further analyzes how developments in Europe may have special significance for legal framework reforms—particularly if they facilitate judicial actions against national authorities through the European Convention of Human Rights, which may serve as a model for litigation elsewhere. Children, intersex conditions, variations of sex characteristics, United Nations, Council of Europe, EU competence I. INTRODUCTION Over the past decade, human rights authorities have called upon all nations to prohibit nonconsensual medical interventions on children with variations of sex characteristics—often referred to as intersex conditions—whenever the interventions are designed to conform children’s bodies to an appearance deemed typical for their assigned gender.1 Most of these recommendations have come from the United Nations (UN)—so far, from six UN human rights committees and several UN agencies2—which have been joined by various authorities within the Council of Europe,3 as well as the European Union (EU),4 among others.5 Responding to requests for action from nongovernmental organizations (NGOs),6 these authorities have recognized the highly invasive, personally violating nature of surgery that irreversibly imposes a gender assignment on children, without regard to their future possible gender identities or sexual orientations, and with significant risk of trauma, pain, loss of fertility, and loss of sexual sensitivity and functionality. Accordingly, human rights authorities have not founded their recommendations on a theoretical, general right of children to consent to medical procedures, but rather on the grounds that medically unnecessary, nonconsensual gender-conforming interventions violate multiple established rights of children to physical and psychological integrity, as well as rights to identity, privacy, and protection from violence and degrading treatment. Despite these recommendations, only Malta has legislated restrictions on gender-conforming interventions,7 while Argentina, Chile, and Colombia claim to have restricted them, although none of these nations provides remedies for all children with intersex conditions surgically altered without their consent.8 Given the lack of regulation, it should not be surprising that the medical literature frequently reports continued uses of these gender-conforming procedures on young children.9 Leaders of the European Society of Pediatric Urology have openly claimed their authority to perform gender-conforming interventions on the basis of parental consent and have repudiated human rights’ authorities’ criticisms.10 Individual audits have also documented continuation of nonconsensual gender-conforming surgeries on children in Denmark,11 Germany,12 and the UK,13 whereas other nations such as Latvia and Sweden still expressly authorize them.14 Indeed, the Swedish government in 2018 has advocated for continuation of these interventions, disregarding human rights authorities’ calls for restricting them.15 The sharp divide between the stances of human rights authorities and national legal orders in this field may not be surprising, given what is often described as the compliance ‘gap’ that exists in transforming human rights into enforceable laws.16 This may seem particularly true in the case of gender-conforming procedures on children, since the legitimacy of these procedures has historically rested not on specific laws, but on the presumption that the procedures constitute medical treatment, consented to by parents on their children’s behalf. As this article explains, however, medical experts worldwide have now conceded that evidence of sufficient quality is lacking on the safety and medical benefits of these interventions without the affected children’s consent. This article analyzes why these procedures have come to be recognized not merely as questionable clinical practices, but as violations of a myriad of rights possessed by children with intersex conditions, with human rights authorities repeatedly declaring that national legal orders are obligated to intervene to protect these children from medical abuse. These developments underscore the importance of reporting violations to human rights authorities to generate criticisms of nations that have failed to act in response to human rights recommendations. In this last regard, the Council of Europe’s recent recommendations—linked to the European Convention of Human Rights (ECHR)—merit special attention for the potential to bring actions in national courts against states for their failures to enact legal reforms, in ways that may further close the compliance gap in Europe and offer a model for the introduction of similar mechanisms elsewhere.17 II. GENDER-CONFORMING INTERVENTIONS AND THE RIGHTS AT STAKE FOR CHILDREN WITH INTERSEX CONDITIONS A. The Nature of Gender-Conforming Interventions Gender-conforming interventions for persons with intersex conditions historically began as elective medical care sought by adults for highly varied personal reasons—for example, to facilitate sexual intercourse, to respond to medical emergencies relative to their development, and in some cases to support a gendered appearance in accordance with their identity.18 Clinical opinion about these requests for care was divided in the early twentieth century. They were opposed by practitioners who believed that the requested interventions were not in accordance with the individuals’ ‘true’ sex (generally gonadal sex), or were perceived as facilitating ‘homosexual’ sex relative to the same gendered presumption.19 As pediatric surgery became more commonplace, surgeons increasingly recommended amputation or reconstruction of genitals that were deemed anomalous for children’s assigned gender, despite scientific findings that adults showed no signs of psychological ‘non-healthiness’ simply from having variations in sex characteristics.20 However, because data showed that surgical reinforcement of a chosen gender for children after the age of three risked severe psychological harm, clinical protocols shifted gender-conforming practices to infant surgery and endocrine therapies to serve three aims: (i) to ‘facilitate the acceptance of the child as a member of the assigned gender in the social environment’; (ii) to ‘provide the capacity for penile-vaginal intercourse in adulthood’; and (iii) to minimize ‘body image problems and gender doubts’, reinforced with ‘gender-appropriate rearing’.21 No long-term studies, however, had ever been performed to prove that these aims could be achieved safely through nonconsensual medical interventions in childhood, either before their adoption as standard care or thereafter.22 The ‘shortfall’ in scientific support for these interventions was not acknowledged by the medical community until 2006,23 even though concerns about the scientific deficit behind most such interventions became public in the 1990s as patients came forward revealing their injuries and, in some cases, incorrect gender assignments.24 At first, these complaints were expected to ‘accelerate the re-examination’ of clinical practices for ‘the intersex patient’.25 Instead, ‘clinical paralysis’ followed, as expert practitioners searched for long-term data to validate ongoing practices.26 By 2012, groups of expert practitioners began to review evidence of outcomes of these procedures but repeatedly could not document their safety and benefits. The first of these groups, known as the Annecy Working Party, surveyed 40 years of research and concluded that the best studies ‘lack the necessary detail to base further recommendations’ upon, with no studies linking surgery to a successful gender outcome.27 The Working Party warned that the quality of life of surgically altered children was a ‘poorly researched’ area, and the sexual quality of life of patients was overall ‘impaired’.28 A second review followed from an American Psychiatric Association (APA) Task Force, which found that the low quality of evidence could not support treatment recommendations, and the existing guidelines were ‘uncomfortably non-specific’.29 In 2016, the largest multidisciplinary group of experts to address the issue so far concluded that ‘data remain inadequate’ to address gender assignment on children with intersex conditions and that no consensus exists on ‘unresolved questions and dilemmas regarding indications, [and] timing and procedures’ of gender-conforming interventions.30 The severe evidentiary deficit of therapeutic benefits of these interventions is significant because it demonstrates that it is known (or should be known) that the interventions in question are likely to be unnecessary, as well as likely to result in the irreversible mutilation of children’s bodies. Regarding the first aim of such interventions noted above—to facilitate the acceptance of the child in the assigned gender—the APA Task Force warned that gender assignment is ‘fraught with uncertainties’ for children with intersex conditions, just as the Annecy Working Party warned that the gender identity of children with these conditions cannot be predicted in infancy.31 Indeed, conservative estimates of the risk of gender assignment rejection are 50% or higher for some patient groups, with ‘low’ estimates of one in twenty to one in five for others. This indicates that significant adverse consequences could occur frequently by surgically altering children to match a registered gender that they later reject.32 The second aim—facilitating future penile–vaginal intercourse—presumes that the children as adults would not only want such intercourse, but also the surgery required to achieve it. As the APA Task Force noted, the ‘implications of a patient’s present or emerging sexual orientation are also typically missing in existing discussions regarding the indications for genital surgery’, which may be ‘valued differently depending on the sexual orientation of the individual, especially relative to all the difficulties that the required surgeries sometimes entail’.33 Consequently, only the final aim remains—the reduction of body image problems and increasing social acceptance—without regard for whether social interventions, rather than medical ones, could be used to meet these aims for all children until those who want medical interventions might choose them. As both the Annecy Working Party and the APA Task Force have confirmed, in fact, many children who have undergone these interventions still experience stigma and body shame.34 For all of these reasons, any claim that parents and clinicians have the authority to risk such invasive harm to children without proof of benefit should be met with an inquiry into the scope of their authority and the rights of the children concerned. B. The Rights at Stake The nonconsensual nature of gender-conforming interventions on children would seem to warrant recognition of a right to consent to such interventions, even though no right of minors to consent to medical care is generally recognized in human rights law. Indeed, determining gender ‘conformity’ transparently requires fully consensual input from the affected individuals, given that such input is the only scientifically sound mechanism to ensure that any medical intervention actually ‘coincides with each child’s gender identity’ and how children wish their bodies to appear.35 Accordingly, the idea that parents can consent to these procedures—to ‘decide [the] gender and sexuality’ of their children as part of their ‘rights and responsibilities’36—should seem unfathomable given the risk of irreversibility of surgery, in particular.37 And yet, clinicians have rationalized performing these interventions in infancy on the grounds of ‘family dynamics’,38 ensuring a ‘supportive’ home environment for children with intersex conditions,39 and meeting ‘parents’ expectations’.40 As observed by the Annecy Working Party, however, one of the most ‘difficult aspects’ of gender-conforming interventions is getting ‘parents and medical staff to realize that responsibility for all decisions must transfer to the patient’, as ‘it will often become apparent that the desires of the patient are not the same as those of the parents and may often appear unconventional’ once a gender and sexuality is chosen for the child.41 Recent medical studies show that while these procedures were expected to promote parental attachment, no evidence of such attachment from these interventions can be documented. Indeed, many parents who consent to these procedures often worry about their children’s atypical gender behavior,42 and it seems that many are likely to have consented to gender-conforming procedures after being told of risks of possible catastrophic outcomes.43 As the Colombian Constitutional Court explained: [I]t is perfectly human that the decision of the parents tends to be based more in their own fears and prejudices than on the real needs of the child … . [T]he parents are part of the social majority who have a defined biological sexuality and who see intersex children as strange beings that they hope can be ‘normalized’ as rapidly as possible. The children run the risk then of being discriminated against by their own parents … . The characterization of these treatments as invasive and risky procedures has transcendental legal consequences on the legitimacy of the substitute consent of the parents of a minor.44 Nevertheless, the simple transfer of consent to children with intersex conditions for interventions that are gender-conforming is not likely to provide complete protection against abuse and bodily harm. In part, this is so because exceptions written into laws to ensure that children receive medically beneficial care may be vague enough to permit parents to consent to procedures on young children that are not ‘solely’ gender-conforming. Thus, vaginal reconstruction to prevent ‘urinary tract infections’ or the removal of undescended testicles as ‘cancer prevention’ could be deemed ‘medically necessary’, even in Malta, which appears to permit procedures that are not ‘driven by social factors’, notwithstanding a lack of evidence supporting their benefit or necessity.45 For children who need surgical assistance to menstruate, the surgical options may also differ depending on the minor’s gender identity—whether the child wishes to function as a male or female or with a more complex gender identity. Because menstruation begins for many such children before teenage years, delaying surgery in principle leaves questions unanswered as to how the right of the minor to consent will be fully protected at such ages, especially if the child does not have the full support from parents and clinicians for the chosen treatment.46 In other cases, such as cosmetic genital surgery, it remains unclear how children’s consent will be protected when parents might pressure their children for surgery, or where clinicians diagnose children as suffering from ‘gender-related stress’ relative to their social gender assignment. According to the Global Disorders of Sex Development Consortium, in nonsupportive families, children may be reluctant to reveal their true gender feelings relative to their assigned gender.47 The APA Task Force similarly cautioned that supporting older children in these situations requires ‘cautious shielding of the young patient from family and peer pressures’.48 Moreover, because clinicians have long performed gender-conforming procedures ‘through a sense of helplessness in caring for these children’ without regard for the lack of evidence of their benefit, there is a real risk that they will not sufficiently and objectively inform children who may be pressured to consent.49 Indeed, prominent clinicians’ misrepresentations of benefits, risks, and projected patient satisfaction have been documented in the medical literature.50 For these reasons, several national medical-ethics organizations have warned that protection for intersex children requires enhanced remedies, including criminal penalties and additional time to seek redress, where clinicians physically harm children through violations of their right to refuse any gender-conforming procedures.51 Human rights authorities have almost uniformly concurred that violations of the right to informed consent itself may constitute violations of multiple additional rights of the children concerned and require an adequate legal framework to prevent those violations. This is particularly true for freedom from torture and degrading treatment and freedom from medical and scientific experimentation without consent, which are non-derogable rights and require states to prevent their infringements.52 Even when states may derogate from other rights on varied grounds, the burden on them to investigate, prevent, and punish violations of rights of children is often high. As explained in detail in Section III, protections for children’s freedom from physical violence, freedom from discrimination, the right to privacy, and the right to identity under many conventions impose such strong obligations that they do not permit de facto derogations from those obligations.53 Given that invasive genital and gonadal surgeries performed on ‘normal’ children often trigger criminal penalties under many national laws banning clitoral mutilations, sterilization, and genital penetration of children without therapeutic necessity, states’ exemptions of gender-conforming surgeries on intersex children from these protections raises serious questions of whether those exemptions are derogations from and violations of multiple human rights.54 For these reasons, to fully understand the weight of human rights authorities’ recommendations for protections for intersex children, it is critical to distinguish which of these rights carry the most force or strongest obligations for states to intervene on intersex children’s behalf. III. RECOMMENDATIONS FROM INTERNATIONAL AND EUROPEAN LEGAL ORDERS A. Recommendations from the UN 1. Overview UN authorities’ inquiries into nonconsensual gender-conforming interventions on intersex persons began in 2009 in response to reports from activists and NGOs, which led calls for investigations in several national legal orders,55 but with only one early call to action against Germany from the Committee against Torture.56 In 2013, however, the Special Rapporteur for Torture and other Cruel, Inhuman and Degrading Treatment became the first UN authority to issue a global call for nations to stop these interventions on the grounds that their invasive, injurious, and nonconsensual nature excluded them from the category of benign medical treatment, regardless of contrary ‘claims of good intentions or medical necessity’.57 The World Health Organization (WHO) subsequently headed a joint interagency statement including these interventions in its calls to end all nonconsensual sterilizations, with a second independent call from the WHO for these restrictions the following year.58 In 2015, the High Commissioner for Human Rights urged multiple reforms to protect intersex persons from violence, degrading treatment, and discrimination because current frameworks permit and reinforce the perceived ‘need’ to conform children to gender norms.59 Since 2015, six UN committees have responded to NGOs’ reports of human rights violations by calling for regulation of nonconsensual gender-conforming interventions on intersex persons and for redress for harms caused by them—with the majority of these calls directed at European nations.60 For the Convention against Torture (CAT),61 the Convention on the Rights of the Child (CRC),62 and the International Covenant on Economic, Social, and Cultural Rights (ICESCR),63 the respective committees have elaborated on the specific articles of the conventions to permit deeper understanding of the personal impact of violations of the rights at stake. For the Convention on the Elimination of All Forms of Gender Discrimination against Women (CEDAW),64 the Convention on the Rights of Persons with Disabilities (CRPD),65 and the International Covenant on Civil and Political Rights (ICCPR),66 the Committees have so far made their recommendations by summary reference to articles in their respective treaties and the works of other UN committees. Collectively, however, the six committees’ recommendations reflect a consensus that national legal orders are broadly failing to protect children with intersex conditions from multiple rights violations, as will now be explained. 2. The Convention against Torture In 2011, the Committee against Torture became the first authority to declare ‘routine surgical alterations in children born with sexual organs that are not readily categorized as male or female’ as violations of a UN treaty.67 Invoking Article 2 (the prohibition against torture) and Article 16 (the prohibition against other cruel, inhuman or degrading treatment), the Committee expressed concern that … gonads have been removed and cosmetic surgeries on reproductive organs have been performed that entail lifelong hormonal medication, without effective, informed consent of the concerned individuals or their legal guardians, where neither investigation nor measures of redress have been introduced.68 Since then, the Committee has repeatedly called on multiple nations to: (i) ensure full and informed consent to the interventions by the persons concerned; (ii) provide redress for persons who did not consent; (iii) educate medical professionals on biological diversity; and (iv) properly inform parents of the risks of unnecessary surgeries and other medical interventions.69 Through these recommendations, the Committee has expanded its focus beyond calling for a simple ban on medical interventions. Indeed, the CAT requires a comprehensive framework to be enacted to stop torture and ill-treatment, including in hospitals and institutions that care for children, with special emphasis on ‘groups made vulnerable by discrimination or marginalization’ including those defined by ‘gender, sexual orientation, transgender identity, mental or other disability’ as well as ‘health status’.70 As early as 2008, the Committee cautioned that adults and children might be ‘subject to violations of the Convention on the basis of their actual or perceived non-conformity with socially determined gender roles’, and recommended that states should ‘punish and prevent’ these violations.71 The Committee has also explained that the CAT requires ‘redress’ with ‘an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible’ and ‘restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition’ of violations of the Convention.72 3. The Convention on the Rights of the Child The CRC is of particular importance to human rights law, given that the Council of Europe, the EU, and the Inter-American Court of Human Rights consider the CRC the foundation of children’s rights law in their orders.73 Beginning in 2015, the Committee on the Rights of the Child (CRC Committee) has anchored its recommendations on Articles 19 (protection from violence), 24 (the right to health), 37 (protection from cruel, inhuman, and degrading treatment), and 39 (recovery measures to promote the health, self-respect, and dignity of the child).74 Nevertheless, the CRC Committee has consistently explained that these individual articles must be interpreted in light of the CRC’s core rights75—the right to protection against discrimination (Article 2), assurances that the ‘best interests of the child’ are taken as the primary consideration (Article 3), the right to life, survival, and development (Article 6), and the right of the child to be heard in accordance with age and maturity (Article 12).76 These articles require states to assist families in providing information to parents and children with the goal of promoting the development of the child as an individual—including in health care, where the Committee has recognized that the interests of the child and parent may conflict.77 Like the Committee against Torture, the CRC Committee has gone beyond recommending mere restrictions on gender-conforming medical interventions. Rather, the recommendations have fallen into several general categories, calling on nations to: (i) ensure that no child is subjected to unnecessary medical or surgical treatment in infancy and childhood; (ii) provide redress to children; (iii) provide parents with counseling and support; (iv) develop a rights-based health protocol for intersex children; and (v) educate parents regarding both biological diversity and the consequences of medically unnecessary interventions on intersex children. The CRC Committee has grounded these recommendations in three articles in particular, which all require states to protect children. Article 19 obligates states to protect children from ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’ by family members and caregivers. Article 24(1) not only provides for the right to the highest attainable standard of health for children, but also requires states to take ‘effective and appropriate measures’ to abolish ‘traditional practices’ prejudicial to children’s health.78 Article 37 requires states to take action against ‘torture or any other form of cruel, inhuman or degrading treatment or punishment’, including any activity ‘likely to inflict serious damage to the physical, psychological and social development of children, requiring appropriate health and other care and treatment’.79 Though the CRC Committee has not invoked Article 8 (the right to identity) and Article 16 (the right to privacy) in its recommendations to protect children with intersex conditions, its comments on these rights may be relevant under other human rights instruments, such as the right to private life under the ECHR. The CRC Committee has clarified that Article 8 includes the protection of identity related to matters such as sex, sexual orientation, and other aspects of personality, which must be taken into consideration whenever decisions are made pursuant to Article 3 in determination of the child’s best interests.80 Indeed, Article 8 was designed to be open-ended, rather than focused solely on the political rights listed in the Article. Article 8 expressly requires states not only to respect a child’s identity but to provide assistance and protection to those illegally deprived of identity in childhood, with a view to restoring it. While the states’ restorative obligations relate to ‘illegal’ deprivations of identity, the sparse legislative history provides that such deprivations relate to those governed by a specific national or local law.81 Under Articles 3 and 8 together, however, the states’ positive responsibilities unequivocally require consideration of ‘diversity’ in protecting those identities from the outset, including the recognition that ‘expression of those needs depends on a wide range of personal, physical, social and cultural aspects, including their evolving capacities’.82 In the health care context, Article 16 requires states to ensure the right to privacy of the child, particularly on matters where the child’s right to consent is recognized. It also requires awareness of the potential for abuse by others in health care matters.83 4. The International Covenant on Economic, Social and Cultural Rights Though the Committee on Economic, Social, and Cultural Rights (ESCR Committee) has only recently issued recommendations to individual nations to take action to protect children with intersex conditions,84 it was one of the first committees to raise concerns about ‘intersex persons’ facing ‘serious human rights violations’.85 In this context, the ESCR Committee has noted that under Article 2 of the ICESCR, states must combat discrimination relating to social rights by undertaking substantive equality measures for persons historically subjected to discrimination on the basis of sex and gender, including intersex persons. As the ESCR Committee explained, the concept of ‘sex’ has evolved considerably to cover not only physiological characteristics but also the social construction of gender stereotypes, prejudices, and expected roles, which have created obstacles to the equal fulfillment of rights under the convention,86 particularly as gender roles are known to affect determinants for health.87 For persons who are perceived to be disabled, the ESCR Committee has warned that such persons are often subjected to subtle prejudices and false perceptions, including concerns that they are seen as ‘genderless’, and has urged that such persons should be allowed to experience their sexuality.88 The ESCR Committee has stated that children, in particular, should be considered especially vulnerable, requiring special services to prevent further disabilities and support their independence.89 So far, the ESCR Committee’s recommendations have centered broadly on the right to the highest attainable standard of health in Article 12. Though it is only partially non-derogable, Article 12 is of central importance since it requires states to respect the rights of an individual ‘to control [their] own health and body, including sexual and reproductive freedom’ and the freedom from ‘non-consensual medical treatment and experimentation’.90 The general test for determining when states have violated Article 12 includes the failure to ‘regulate the activities of individuals […] so as to prevent them from violating the right to health of others’ and ‘failure to discourage the continued observance of harmful traditional medical or cultural practices’.91 This includes a particular obligation to protect vulnerable or marginalized groups, especially children and adolescents and others from gender-based expressions of violence.92 In this regard, the ESCR Committee has explained that fulfillment of the obligation to protect the right to health must be read through the lens of other essential rights, particularly the right to health without discrimination, thereby recognizing that health care policy based on social and cultural gender factors, as well as biological ones, can undermine individuals’ health.93 5. Additional UN recommendations in relation to the overall UN framework For the remaining UN treaties under which recommendations have been made in this field, the respective committee statements have largely been generalized and, for two of them, connected to other UN treaties. Though the CEDAW Committee was the first UN Committee to recognize possible human rights abuses of intersex persons,94 it was only in 2016 that it began to issue recommendations to restrict gender-conforming interventions on children.95 This was primarily based on a joint statement issued with the CRC Committee, rather than a specific CEDAW provision, which recognized that vulnerable groups in health care have been subjected to body modifications relative to their appearance to comply with social norms of the body.96 Similarly, the CRPD Committee issued its first recommendation to restrict gender-conforming interventions by reference to the work of the Committee against Torture, though it has since done so generally by reference to CRPD Articles 16 (protection from violence and abuse) and 17 (protection of the integrity of the person), without much elaboration.97 In 2017, the Human Rights Committee began calling for restrictions on the interventions in question under the ICCPR, invoking Article 7 (freedom from medical experimentation without consent) and Articles 3, 24 and 26 (general rights to protection and non-discrimination), albeit with minimal commentary.98 Despite the summary nature of these recommendations, their effective alignment with the recommendations of other UN Committees is significant. They serve to underscore that the rights infringed are not merely separate rights under separate treaties, but related rights that could all be infringed in interventions on any individual child. Indeed, the CRC Committee has explained that the ICESCR is inherently linked to positive obligations regarding the right to health across the spectrum of children’s health needs.99 While the Committee against Torture and the Human Rights Committee have not formally addressed the categorical coordination of the CAT and ICCPR with other treaties, both treaties extend protections to children with parallel provisions that also connect to the CRC. In this manner, the UN committees’ recommendations taken as a whole clarify that non-consensual gender-conforming interventions cut disturbingly across a vast array of human rights, given that the victims are children who are targeted for invasive medical intervention because of their gender differences and perceived disabilities. B. Recommendations from the Council of Europe In October 2013, the Parliamentary Assembly of the Council of Europe issued its first call to all Member States to ensure that no intersex persons undergo medically unnecessary procedures in childhood without consent. In the years that followed, the Human Rights Commissioner (2015) and the Committee on Bioethics (2017) published reports detailing the scope of harms caused by nonconsensual gender-conforming interventions on children with intersex conditions and the array of rights implicated by these interventions across legal systems.100 Finally, in October 2017, the Parliamentary Assembly resolved, in Resolution 2191, that Member States should reform their legal frameworks to protect intersex persons from medical abuse and discrimination, guarantee patient-centered care, and transform clinical and public education, as well as gender registration. Regarding medical interventions, the Assembly called on states to take numerous actions, specifically to: (i) prohibit medically unnecessary sex-‘normalizing’ surgery, sterilization, and other treatments practiced on intersex children without their informed consent; (ii) ‘ensure that, except in cases where the life of the child is at immediate risk, any treatment that seeks to alter the sex characteristics of the child … is deferred until such time as the child is able to participate in the decision’; (iii) ensure holistic patient-centered and expert care; (iv) ensure that intersex persons have effective access to health care throughout their lives; (v) provide training to psychological and other professionals concerned, including conveying a clear message that intersex bodies are the result of natural variations in sex development and do not as such need to be modified; and (vi) ensure that adequate psychosocial support mechanisms are available for intersex people and their families throughout their lives.101 Although the Parliamentary Assembly referred only to the CRC in its 2013 Resolution, it grounded Resolution 2191 in concerns that gender-conforming interventions on children ‘may raise important issues’ under the ECHR—namely Article 3 (the prohibition on torture and inhuman and degrading treatment) and Article 8 (the right to private life)—as well as the Biomedicine Convention.102 Taken together, these resolutions appear harmonious with parallel recommendations from UN authorities. The Parliamentary Assembly’s new focus on Articles 3 and 8 in Resolution 2191, however, merits greater examination. This is especially important as the doctrine of the ECtHR has, to date, appeared to move away from notions that biology determines rights related to gender identity, but has done so through reliance on medical consensus and with limited protections for gender-variant persons from gender discrimination. Currently, the ECtHR’s gender jurisprudence fractures on the question of protection of individuals related to gender characteristics and identity. On questions of gender recognition, the Grand Chamber gave its only statement to date on intersex conditions in Goodwin v the United Kingdom, recognizing that these conditions demonstrate that binary gender classifications are not, by nature, congruent with all individuals’ physical sex characteristics.103Goodwin was decided long before expert-practitioners conceded that a medical consensus does not exist on the safety or benefit of gender-conforming interventions on children with intersex conditions. Nevertheless, the Grand Chamber relied on medical consensus regarding the care of transgender persons, rather than a European legal consensus, to recognize the right to juridical respect for the gender identity of persons who underwent gender-affirming care.104 Indeed, in Goodwin and a subsequent case, Van Kück v Germany, the ECtHR held that the applicants could be presumed to be sincere in their gender identities because they were willing to undergo invasive, irreversible gender-affirming surgeries.105 Whilst the Court has since recognized that coerced sterilization requirements for gender recognition violate Article 8, it has yet to address the question of whether other gender-conforming surgeries might be required for that recognition.106 In the context of gender discrimination, the Grand Chamber’s reasoning has been even more complex. On the general question of discrimination between men and women, the Grand Chamber has held that national laws cannot be justified on the basis of overgeneralizations about biological sex when they form gender stereotypes drawn from tradition.107 And yet, the Grand Chamber’s most recent transgender rights decision under Article 14 (in a case of compulsory divorce) summarily rejected claims of discrimination on the grounds that transgender persons are ‘not similarly situated’ with persons whose gender identity matches their gender registered at birth.108 The Grand Chamber did not explain how the registration of children’s gender—based on gender stereotypes about how a child’s body should appear—withstands scrutiny on the basis of the very biological diversity it recognized for children with intersex conditions in Goodwin. From this point of view, the Parliamentary Assembly’s grounding of its recommendations upon express ECHR rights—specifically Articles 3 and 8—effectively bypasses the ECtHR’s problematic gender jurisprudence. Indeed, under Article 3, the ECtHR has recognized that physical injuries inflicted by parents that impair the health of their children can constitute degrading treatment, imposing positive obligations on states to prevent such harm and requiring an effective remedy.109 In the context of forced medical treatment, the Grand Chamber has highlighted several factors that favor the characterization of treatment as degrading and inhuman, even if it has a therapeutic aim. Nonconsensual treatment may violate Article 3 if it worsens suffering thought to be caused by a medical condition, relative to the age and sex of the victim, the availability of alternatives to that treatment, and a determination that the person affected suffers serious physical pain, suffering, or persistently adverse health consequences.110 Article 3’s prohibitions also cover such treatment that results in ‘actual bodily injury or intense physical or mental suffering’, as well as treatment that ‘humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority’,111 even if these consequences are not intended.112 Of equal importance to the Parliamentary Assembly’s recommendations, the Grand Chamber has made clear that under Article 8, national legal orders must have an overall ‘adequate legal framework’ to protect children from harm proportionate to the severity of any injuries, with a narrow margin of appreciation afforded to states in their obligation to protect children whenever their identity and intimacy are at stake.113 Both Articles 3 and 8, therefore, may stand on their own as grounds for findings of rights violations, thereby revealing consistency with the Council of Europe’s increasing recommendations in this regard. C. Recommendations from the EU Different arms of the EU have played limited roles to date on the question of gender-conforming interventions on children, primarily through three distinct strands of EU activity: (i) the financing of research and reports; (ii) the advancement and protection of fundamental rights in connection with EU law by the Fundamental Rights Agency (FRA) and; (iii) the functions of the European Parliament. The first of these may be the most controversial, as the European Commission has financed research by clinician-researchers known to support gender-conforming medical interventions on infants with intersex conditions in clinical practice, without any corresponding pledge that the research should not be designed to support these interventions on children without their consent.114 Since then, however, both the FRA and European Parliament have taken critical stances on gender-conforming procedures—subtly qualifying recommendations in all three of these areas in light of EU competence or providing further indication on how their recommendations can or should be implemented. In 2015, the FRA provided the most comprehensive assessment from an EU body on gender-conforming procedures on intersex children in a report examining the legal situation of intersex people from a fundamental rights perspective.115 The report reached three primary conclusions, namely that: (i) ‘legal and medical professionals should be better informed of the fundamental rights of intersex people, particularly children’; (ii) ‘gender markers in identity documents and birth registries should be reviewed to better protect intersex people’ and; (iii) EU Member States ‘should avoid non-consensual ‘sex-normalizing’ medical treatments on intersex people’.116 In part, these recommendations follow from the FRA’s mandate to provide assistance and expertise to support EU institutions, agencies, and the Member States in undertaking measures or formulating courses of action—within their respective spheres of competence—to fully respect fundamental rights when implementing EU law.117 The scope of FRA authority, however, is defined by regulation and confined to meeting the fundamental objectives of the EU, the observance of fundamental rights as defined in Article 6(2) of the Treaty on EU, and addressing fundamental rights in the EU and in its Member States when implementing Community law. Thus, the FRA is expected to work within these limits of the principle of conferral when EU law is being implemented while acting on its own motion or at the request of the European Parliament, the Council, or the Commission. Nonetheless, in other works, such as research and surveys, the FRA is not confined to its general scope of authority. In practice, this has meant that the FRA has not been required to clarify the limitations of its recommendations.118 Straddling these varied grounds, the FRA recommendations thus constitute soft rhetoric in addressing the fundamental rights concerns that gender-conforming surgeries on intersex children raise under the Charter of Fundamental Rights of the EU (CFREU), tailored to the scope of EU competence in the area of discrimination. The European Parliament has also proposed relevant regulations in two resolutions. In the first, the Parliament called for better integration of the concept of ‘intersex’ within the meaning of ‘sex’ in employment discrimination prohibitions, as well as generally recognizing the rights of intersex persons within the EU, including protections for gender identity.119 In the second, the Parliament called on Member States and the Commission to ensure research on the health of intersex children, but also urged Member States ‘to prevent, ban and prosecute … genital mutilation affecting intersex persons, and to provide mental health support, in conjunction with physical care, to victims and to those individuals likely to be targeted’.120 Read within the scope of EU authority, the resolution appears carefully tailored to guard the principle of conferral, assuming a nudging role for Member States, deferring to their competence and authority in regulating medical interventions. Both resolutions support an emerging view that the EU’s greatest capacity to act may be in grounding antidiscrimination law reforms in fundamental rights, with the capacity to impose limitations on uses of EU-funding in at least some research.121 IV. BRIDGING THE GAP BETWEEN HUMAN RIGHTS AND NATIONAL LAW A. An Overview: How Wide is the Gap? The continued use of gender-conforming interventions on children with intersex conditions raises important questions as to how human rights could be concretized for particularly vulnerable groups, especially children who represent a discrete minority of children who are isolated within their families. Authorities within the national legal orders cannot easily dismiss the pain and suffering of persons with intersex conditions by deferring to medical authorities, given that experts worldwide have conceded that these harms do occur and cannot confirm the safety and benefits of nonconsensual gender-conforming interventions on children. The question that remains, therefore, is what mechanisms exist to ensure that the national legal orders will act so that gender-conforming interventions are only consensually undertaken by those who want them—whether to support them in their gender identity or to improve their physical or psychological health. Even without specific regulatory action, the national legal orders themselves may permit human rights claims to be brought in national courts, either alone or in connection with other legal actions, such as malpractice claims. In Europe, however, the potential for bringing human rights claims in national courts is varied.122 As the Venice Commission recognized, even those European nations that consider international law to be a part of national law upon ratification often do not give automatic effect or normative primacy to human rights.123 Thus, the question remains as to whether any actions can be taken beyond the national legal orders to effectuate change within them. As explained below, both the UN and Council of Europe clearly lack legislative authority and additional competence to initiate those actions, and such authority is also limited (but not without utility) in the EU. Nevertheless, mechanisms do exist that may permit litigants to hold states accountable for failures to act, particularly in the Council of Europe, which may serve as a model for legal orders elsewhere. B. Bridging the Gap from Beyond the National Legal Orders 1. Bridging the gap through the UN Within the UN system, each of the six Conventions set forth in Section III.A.1 imposes positive obligations on states to protect identified rights; compliance with and implementation of each convention requires states to intervene in private relationships to stop rights violations.124 Thus, for nonconsensual gender-conforming interventions, each of the UN treaties may be read as obligating states to intervene in decisions made between clinicians and parents or guardians that harm the rights of children. Yet, the current ineffectiveness of these conventions in triggering regulatory change is perhaps the result of one of the most chronic problems in international law,125 namely, the problem of enforcing these obligations. Without the capacity to legislate over and above the national legal orders, the UN authorities have largely amplified and clarified the meaning of treaties through their general comments, with two additional mechanisms to facilitate treaty compliance. First, UN committees are prolific in monitoring compliance through reporting and providing comments and recommendations. This mode of enforcement is clearly dependent on signatories actually complying with the treaties, and social, political, and diplomatic pressure to address the breaches.126 It remains unclear whether the limited effectiveness of this enforcement model can be attributed to a lack of managerial efforts on behalf of the UN, or the independent propensity of the contracting parties to resist compliance.127 The second mechanism under UN treaties is the complaint system,128 which is available to each of the six treaties assessed in this article, provided that a state has ratified the instrument authorizing complaints and accepts the relevant committee’s adjudicatory competence. These mechanisms permit findings of treaty violations, enable the monitoring of outcomes, and provide aid in seeking remedies. However, they are also dependent on the ‘cardinal principle’ that remedies within the national legal orders must first be exhausted.129 As of July 2018, relatively few countries have held that UN decisions on complaints are directly enforceable in national courts. The significance of this possibility should not be discounted, however, as the Supreme Court of Spain’s recent decision to that effect is sweeping and could be followed or advocated in other European nations.130 It is important to note that direct compliance with the UN treaties is not the only positive outcome of UN recommendations in this field. The recommendations could also assist in overcoming discrepancies between law and social reality, by providing authoritative support for governments and advocates to counter clinical resistance to national regulation.131 The six UN committees’ recommendations in this field reinforce the view that gender-conforming interventions on children with intersex conditions are violating well-established rights, not newly minted ones. This particular stance is embodied in the conceptualization of the CRPD as an ‘implementation convention’, one that has also effectively challenged the medical paradigm that once framed disabilities as impairments that justified disregard for individuals’ self-determination.132 In the absence of direct authorization by national legal orders, however, the possibility of individuals bringing judicial claims based on UN treaties may depend on whether they can be invoked as persuasive authority, whether in national courts, or in courts such as the Inter-American Court of Human Rights,133 as well as the ECtHR. 2. Bridging the gap through the Council of Europe The Council of Europe, like the UN, is a traditional international legal order lacking legislative competence. In the field of biomedicine, the Council of Europe has attempted to address many human rights concerns through the Biomedicine Convention and its highly detailed additional protocols. The Biomedicine Convention itself, however, is currently ratified by approximately only 60% of the Member States and the protocols have attracted even lower ratification.134 While Article 6(2) of the Convention requires considerable weight to be given to a child’s input, relative to the nature and seriousness of a medical intervention, it does not provide for a right of the child to consent to those interventions, even where medical benefit is proven uncertain. Nor does it clearly define when damage is ‘undue’, requiring compensation under Article 24.135 The Convention for Prevention of Torture and Inhuman or Degrading Treatment or Punishment also has a preventive mandate for inspecting and investigating treaty violations, which has been used in the field of health care.136 Its Committee is not designed, however, to resolve complaints. It may accept reports from NGOs but is not required to do so.137 Indeed, it has not yet taken up questions of gender-conforming interventions on children with intersex conditions, which have only formally been addressed by the Commissioner for Human Rights and the Parliamentary Assembly, through reports, resolutions, and recommendations. There has been no response as of yet from the Committee of Ministers.138 The Council of Europe’s central human rights instrument, the ECHR, however, does provide a mechanism with potential for addressing gender-conforming interventions on children by way of legal remedies, particularly against authorities in the national legal orders for failure to protect children with intersex conditions. At a minimum, Article 13 requires national legal orders to provide effective remedies to punish those who violate individual rights protected by the ECHR, for which judicial remedies may be best suited.139 If the rights also constitute civil rights—which have been repeatedly found in the medical context—judicial remedies must be provided pursuant to Article 6 wherever they are lacking.140 In this sense, the Parliamentary Assembly’s concern that nonconsensual gender-conforming interventions violate Articles 3 and 8 of the ECHR may also bolster the claim that states without remedies for children with intersex conditions also violate Articles 6 and 13. The challenges of litigation under the ECHR regarding gender-normalizing procedures are, however, not minimal. A finding that Contracting States have failed to fulfill their obligations to protect children from rights violations may turn on what the states have been aware of, or should have been aware of.141 Though some knowledge of harm to children with intersex conditions emerged in the 1990s, the overwhelming lack of scientific evidence supporting gender-conforming interventions on such children only became public in 2006.142 More worrying, perhaps, when the ECtHR has been confronted with biomedical practices in other contexts, it has invoked scientific uncertainty on sensitive ethical questions as grounds for deference to the national legal orders.143 The Court has also recognized the presumptive authority of parents and guardians to make health care decisions on behalf of their children, even in a case, albeit decades ago, when the medical judgment was suspect and the child appeared to object.144 Although the Court has accepted limitations on parental authority in the best interests of children in medical cases, it has done so by confirming the power of clinicians to utilize national procedures to override parental consent in medical matters when there is a risk of harm to a child and where medical benefits are questionable.145 Given all of this, the ECtHR has given no indication that it is willing to challenge clinical decision-making, especially in pediatric cases. In fact, in 2017, the Grand Chamber made clear that the ECtHR will not review individual cases perceived as cases of negligence or medical error when the Contracting States have ‘high professional standards’.146 However, it has never addressed a case of a standard clinical practice when it is widely considered by the medical profession that evidence of the safety and benefits of this practice is lacking, as is true of gender-conforming procedures on intersex children. It is critical, then, that future challenges to gender-conforming procedures at the ECtHR rebut the therapeutic character of such procedures and present them as long-standing harmful practices that violate the core rights of all persons with intersex conditions. Consider, for instance, that in Söderman v Sweden, the Grand Chamber permitted a challenge by a minor whose right to private life was violated by her stepfather, who filmed her while showering, because Sweden’s criminal and civil law framework failed to prohibit and remedy the invasion of her right to private life.147 There, the Grand Chamber held that Contracting States had a narrow margin of appreciation to protect individuals from harm where ‘a most intimate aspect of private life’ or an ‘important aspect of an individual’s existence or identity is at stake’, with positive obligations to protect children in particular from physical harm. If a national court or the ECtHR were to accept the current lack of substantial medical evidence and consensus on the safety and benefits of gender-conforming procedures, such a finding would undermine any defence that the procedures should be accepted because they are standard clinical practices, and there would be clear parallels with Söderman v Sweden given that such procedures are, in fact, directed at the identity, intimacy, and physical integrity of children. Moreover, on the question of whether the national legal orders are fulfilling their positive obligations to protect children, the recommendations from the Parliamentary Assembly of the Council of Europe, in particular, as well as the UN, could also serve as important measures, given that the ECtHR has a well-documented record of using other instruments from human rights authorities, both within and beyond the Council of Europe,148 to gauge consensus and preserve the ECHR as a living instrument.149 The critical question, therefore, may be who brings the claim in national courts and on what grounds. Children will have the strongest claims to challenge the legal frameworks of the national legal orders for failing to protect them from harm since 2006, the point from which leading experts conceded the lack of evidence of safety and benefits of these procedures; from this time, states should have been on notice to protect children with intersex conditions. While minors may depend on remorseful parents to litigate on their behalf until they reach adulthood, the Grand Chamber has held under Articles 3 and 8 that the ‘vulnerability’ of victims ‘on account of their age, sex or disability’ and the ‘seriousness of the violations’ may warrant organizations to represent them in ‘exceptional circumstances’150—which should apply when children’s parents have authorized the harm to them. As the Grand Chamber has also explained in O’Keeffe v Ireland, no time bar is in place where a state had an obligation to protect children from harm, given ‘the fundamental nature of the rights guaranteed by Article 3 and the particularly vulnerable nature of children’.151 Claims for rights violations under Articles 3 and 8, supported by recommendations from the Parliamentary Assembly of the Council of Europe, are therefore likely to continue to ripen and remain ripe until past harms are remedied. 3. Bridging the gap within the EU The EU might seem to offer great potential in challenging gender-conforming procedures, given that it has evolved beyond a mere international organization to a sui generis legal order with substantial legislative powers. The EU’s most concrete proposals for future legislation to protect intersex persons from discrimination reflect these powers, as they have the potential to address long-standing conflicts over gender equality. The EU, however, may only act within the competences conferred upon it by its treaties.152 For instance, even the most expansive nondiscrimination directive from the EU, the Race Equality Directive, respects this limitation, prohibiting discrimination in health care only ‘within the limits of the powers conferred’ on the EU.153 Thus, the EU’s relatively soft contributions in addressing gender-conforming surgeries on children may be attributed to the sensitivity of the complex question of the EU’s role in matters related to the provision of medical services.154 It is not argued here that the EU is unable to contribute to the protection of persons with intersex conditions. The EU, of course, has invested considerable effort in filling the vacuum of fundamental rights in its legal order apparent at the time of the EC’s establishment.155 Nonetheless, the EU is not a fundamental rights organization with a general mandate to act to protect and promote such rights.156 The observance and protection of fundamental rights is tied to the limits of EU competence and authority, as expressly established in Article 51 CFREU.157 Furthermore, the area of health care has long been a tension point in EU law, located at a crossroads of, on the one hand, the promise under what is now Article 168.7 of the Treaty on the Functioning of the EU (TFEU) and, on the other hand, the internal market culminating with the adoption of the Directive on Patient’s Rights in Cross-border Healthcare. Though many CFREU rights are counterparts to those identified by the UN as being relevant to tackling the problem of gender-conforming surgeries on children, the applicability of the CFREU is limited to the exercises of authority within the competences conferred upon the EU.158 Ascertaining whether and to what extent the EU could act in this regard is a sophisticated task which is beyond the scope of this article. The power of the EU to intervene to fill in the compliance gap between UN instruments and national law, as well as the case-by-case adjudication under the ECHR, requires in-depth analysis of the EU inventory through the principle of conferral to see whether and how the EU could act. Although the starting point could be localized in the cross-border context—where parents may seek to move children from legal orders that restrict gender-conforming interventions to those that do not – easy solutions that allow for legislative interference do not seem to exist. Correspondingly, however, it is also premature to conclude that there is no room for the EU to do more to stop human rights violations in health care. Should EU competence be triggered, the oversight of the Court of Justice of the European Union could be hard to avoid under Article 267 TFEU, which, through soft precedent, could at least bring forth some consistency among the EU Member States. The effectiveness of any such adjudication, as opposed to legislation, would inevitably lead back to the discussion on the ECHR and isolated cases brought before the court. V. FINAL COMMENTS The emergence of a human rights consensus on the need to protect children from nonconsensual gender-conforming interventions reveals three important lessons for bridging the compliance gap between human rights law and national law reform. First, the consensus did not emerge spontaneously from human rights authorities, but in response to a long struggle to be heard by intersex activists, support groups, and NGOs, as well as direct reports of violations to UN Committees and other human rights agencies. Second, the recommendations that followed have not occurred in isolation from one another but, rather, have synergistically referred to each other, both within and among the UN committees, as well as with the Council of Europe and EU relying upon each other’s investigative work and UN treaty recommendations. Finally, the consensus that has emerged has repeatedly emphasized that the harm to children from gender-conforming interventions cannot be eliminated simply by requiring consent from children to be respected by clinicians and parents. Rather, what is required is legal framework reform, including redress for harms that have occurred decades ago, which could also serve to deter violations of future children’s rights. For all of these reasons, it is vital that those concerned with protecting children and adults with intersex conditions fully understand that the compliance gap can only be bridged by working with human rights authorities to educate and bring pressure upon the national legal orders. Nevertheless, the national legal orders’ resistance to reform that would protect children and adults with intersex conditions strongly suggests that more may be needed to close the compliance gap. Bearing in mind that the Parliamentary Assembly of the Council of Europe has directly linked its calls for legal framework reform to the ECHR, the time may soon be ripe to bring claims under Articles 3 and 8 in national courts in Europe. Given that UN authorities have now directly reprimanded twelve European nations so far159—none of which have taken legal action to regulate or redress harm from gender-conforming interventions—the compliance gap represents a significant European repudiation of international human rights authorities’ reprimands and recommendations. Whilst national authorities need not wait for litigation, if they do not seek advisory opinions from the ECtHR,160 litigation may be required to prompt change. Reporting ongoing violations to human rights authorities whenever they occur, however, remains essential to ensure that all nations that have failed to regulate nonconsensual gender-conforming interventions on children with intersex conditions are reprimanded. Litigation may well also have limited impact if it is not properly framed. Indeed, when the Colombian Constitutional Court first declared gender-conforming procedures on a child with an intersex condition to be a constitutional violation, based in part on human rights law, it framed the case as a medical one and deferred to medical opinion on the broader practice of gender-conforming interventions on younger children before they could express their gender identity.161 That precedent has endured for years. Activists, litigants, human rights agencies, and courts will, therefore, likely need concerted, collective efforts to protect children with intersex conditions from the loss of non-derogable rights due to nonconsensual gender-conforming interventions. However, the stage may now be set for holding states accountable for failing to strengthen their framework to protect all persons with intersex conditions, including children, in ways that would have been unthinkable without the considerable efforts of NGOs and human rights authorities to draw attention to the importance of both non-derogable rights and sweeping law reform. Conflict of interest statement. None declared. Footnotes 1 This article uses the terms ‘intersex conditions’ for clarity because the human rights documents use variations of this term, though it is recognized that not all persons with variations of sex characteristics identify accordingly. PA Lee and others, ‘Global Disorders of Sex Development Update since 2006: Perceptions, Approach and Care’ (2016) 85 Horm Res Paediatr 158, 159. This challenge in language has been wisely problematized as being a result of current medical practice reinforcing gender binaries. M Carpenter, ‘The “Normalisation” of Intersex Bodies and “Othering” of Intersex Identities’ in JM Scherpe, A Dutta and T Helms (eds), The Legal Status of Intersex Persons (Intersentia 2018). 2 High Commissioner for Human Rights, Discrimination and Violence against Individuals Based on their Sexual Orientation and Gender Identity (2015); World Health Organization and others, Eliminating Forced, Coercive and Otherwise Involuntary Sterilization: An Interagency Statement (2014); World Health Organization, Sexual Health, Human Rights and the Law (2015). JE Méndez, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the U.N. General Assembly’, (A/HRC/22/53, 2013). As of August 1 2018, in Europe these nations are Austria, Denmark, France, Germany, Ireland, Italy, Liechtenstein, Luxembourg, the Netherlands, Spain, Switzerland, and the UK. The remainder are in Africa (Morocco, South Africa) the Americas (Argentina, Chile, Mexico, Uruguay), Asia (China-Hong Kong, Nepal), and Australia and New Zealand. For full references, see <https://gendermedicine.law.blog/2018/11/15/un-reprimands-of-gender-conforming-interventions-on-children-with-intersex-conditions-and-variations-of-sex-characteristics/> accessed 16 November 2018. 3 The Parliamentary Assembly of the Council of Europe (PACE) issued two resolutions and a recommendation, most recently in 2017. See Resolution 2191/Recommendation 2116: Promoting the Human Rights of and Eliminating Discrimination against Intersex People (2017) and Resolution 1952: Children’s Right to Physical Integrity (2013). See P De Bruyn, Rapporteur, Committee on Equality and Non-Discrimination, ‘Promoting the Human Rights of and Eliminating Discrimination against Intersex People’, Doc. 14404 (2017) <http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=24027&lang=en> accessed 15 November 2018. The Council of Europe has also released three key reports: Commissioner for Human Rights for the Council of Europe, Human Rights And Intersex People (2015) T Liefaard, A Hendricks and D Zlotnik, From Law To Practice: Towards a Roadmap To Strengthen Children’s Rights in the Era of Biomedicine (DH Bio 2017), together with K Zillén, J Garland and S Slokenberga, The Rights of Children in Biomedicine: Challenges Posed By Scientific Advances and Uncertainties (DH Bio 2017). 4 Fundamental Rights Agency, The Fundamental Rights Situation of Intersex People (2015); European Parliament resolution of February 4 2014 on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity (2013/2183(INI)) and European Parliament resolution of February 14 2017 on promoting gender equality in mental health and clinical research (2016/2096(INI)). 5 For a summary, see J Garland, On Science, Law, and Medicine: The Case of Gender-‘Normalizing’ Interventions on Children Diagnosed as Different in Sex Development (Uppsala University 2016) 9, 10. 6 DM Ghattas, ‘Standing Up for the Human Rights of Intersex People’ in Scherpe, Dutta and Helms (n 1) 429–44 and JM Scherpe, ‘The Legal Status of Intersex Persons: An Introduction’ in Scherpe, Dutta and Helms (n 1) 1–22. 7 ‘Gender Identity, Gender Expression and Sex Characteristics Act, Laws of Malta’, ch 540. 8 In 1999, the Colombian Constitutional Court began to declare nonconsensual, gender-conforming surgeries on older children (age 5 years and older) as violations of the Colombian Constitution, but still permits surgeries on younger children. See Garland (n 5) 553–57. As of 2012, Argentina’s Gender Identity Law ensures access for minors choosing gender-affirming surgeries (intended for transgender minors) with the consent of their parents, but provides no remedies for clinicians who perform surgeries based on parental consent on infants. Ley 26.743, Establécese el derecho a la identidad de género de las personas (2012). In 2016, Chile’s Ministry of Health suspended gender-conforming surgeries on infants and young children but reversed much of that order in 2017 <https://brujulaintersexual.org/2017/07/13/circular-7-2016-intersex-people-chile/> accessed 25 July 2018. 9 PDE Mouriquand and others, ‘Surgery in Disorders of Sex Development (DSD) with a Gender Issue: If (Why), When, and How?’ (2016) 12 J Pediatr Urol 139; HM Byers and others, ‘Unexpected Ethical Dilemmas in Sex Assignment in 46,XY DSD Due to 5-Alpha Reductase Type 2 Deficiency’ (2017) 175C Am J Med Genet 260; NJ Nokoff and others, ‘Prospective Assessment of Cosmesis Before and After Genital Surgery (2017) 13 J Pediatr Urol 28e1; A Kyriakou and others, ‘Current Models of Care for Disorders of Sex Development—Results from an International Survey of Specialist Centres’ (2016) 11 Orphanet J Rare Dis 155; L Michala and others, ‘Practice Changes in Childhood Surgery for Ambiguous Genitalia?’ (2014) 10(5) J Pediatr Urol 934. 10 PDE Mouriquand and others, ‘Editorial: The ESPU/SPU Standpoint on the Surgical Management of Disorders of Sex Development (DSD)’ (2014) 10 J Pediatr Urol 8. 11 Amnesty International, First, Do No Harm: Ensuring the Rights of Children with Variations of Sex Characteristics in Denmark and Germany (2017) 49, 50. 12 Amnesty International, ibid 53, 54. 13 S Monro and others, Intersex, Variations of Sex Characteristics, and DSD: The Need for Change. Research Report (University of Huddersfield 2017) 11–18. 14 In Latvia, for example, national regulations currently authorize these interventions. See Procedures for organization and financing of health care, Regulation No. 1529, s 11.32 (‘dzimumorgānu iedzimtas anomālijas ķirurģiska korekcija, ja veikta bērniem’). Sweden currently permits these procedures for all children to conform their bodies to their assigned gender as part of health care regulations. See J Garland, ‘Sweden’ in Scherpe, Dutta Helms (n 1) 357–86. 15 Regeringskansliet, Vissa kirurgiska ingrepp i könsorganen (Ds 2018:11) (2018) 57–58, 61–62, and 72–73. 16 On the compliance gap, see Sonia Cardenas, ‘Norm Collision: Explaining the Effects of International Human Rights Pressure on State Behavior’ (2004) 6 Int Stud Rev 213 (summarizing the scholarship). The authors use the term ‘national legal orders’ to reflect, as Kelsen described, the broader norms that actually govern above and through national legal systems, particularly as the orders are now linked to international legal orders and sui generis legal orders, such as the European Union. See A Stone Sweet and H Keller, ‘The Reception of the ECHR in National Legal Orders’ in H Keller and A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press 2008); H Kelsen, ‘The Concept of the Legal Order’ (1982) 27 Am J Juris 64. 17 Indeed, the Inter-American Court of Human Rights has canvassed UN recommendations and European Court of Human Rights (ECtHR) case law to indicate how it might protect persons with intersex conditions, as well as transgender persons. See Inter-American Court of Human Rights, Advisory Opinion 24/17 (2017). 18 De Bruyn (n 3) 8. 19 E Reis, Bodies in Doubt: An American History of Intersex (Johns Hopkins University Press 2009) 90–145; Garland (n 5) 55–80. 20 J Garland and M Diamond, ‘Evidence-Based Reviews of Medical Interventions Relative to the Gender Status of Children with Intersex Conditions and Differences of Sex Development’ in Scherpe, Dutta Helms (n 1) 86. 21 ibid; W Byne and others, ‘Report of the American Psychiatric Association Task Force on Treatment of Gender Identity Disorder’ (2012) 41 Arch Sex Behav 789. 22 M Diamond and J Garland, ‘Evidence Regarding Cosmetic and Medically Unnecessary Surgery on Infants’ (2014) 10 J Pediatr Urol 2, 3. 23 IA Hughes and others, ‘Consensus Statement on Management of Intersex Disorders’ (2006) 2 J Pediatr Urol 148, 158. 24 Diamond and Garland (n 22) 3. 25 M Grumbach and others, ‘Disorders of Sex Differentiation’ in JD Wilson (ed.) Williams’ Textbook of Endocrinology (9th edn, WB Saunders 2003) 962–63. 26 Zillén, Garland and Slokenberga (n 3) 42; De Bruyn (n 3) 9–10. 27 PA Lee and others, ‘Review of Recent Outcome Data of Disorders of Sex Development (DSD): Emphasis on Surgical and Sexual Outcomes’ (2012) 8 J Pediatr Urol 611, 614; S Creighton and others, ‘Timing and Nature of Reconstructive Surgery for Disorders of Sex Development—Introduction’ (2012) 8 J Pediatr Urol 602, 604. 28 J Schober and others, ‘Disorders of Sex Development: Summaries of Long-Term Outcome Studies’ (2012) 8 J Pediatr Urol 616, 619, and 621. 29 Byne and others (n 21) 789. 30 Lee and others (n 1), 159, 170–73. 31 Byne and others (n 21) 789; LM Liao and others, ‘Determinant Factors of Gender Identity: A Commentary’ (2012) 8 J Pediatr Urol 597, 599. 32 Garland and Diamond (n 20) 88–9. 33 Byne and others (n 21) 789. 34 Creighton and others (n 27) 603–08; Schober and others (n 28) 619–20; Byne and others (n 21) 789. 35 Diamond and Garland (n 22) 3–6. 36 PA Lee and CP Houk, ‘Commentary to Evidence Regarding Cosmetic and Medically Unnecessary Surgery on Infants’ (2014) 10 J Pediatr Urol 7. 37 Since 1997, patients’ reports of having been surgically assigned the wrong gender had been documented in the medical literature. At that point, clinicians could no longer deny that the only way to avoid this outcome was to postpone surgery, even if a social gender was assigned. Garland and Diamond (n 20) 81–82 and 99–101. 38 Mouriquand and others (n 9) 145. 39 Lee and others (n 1) 159. 40 Mouriquand and others (n 10) 9. 41 Schober and others (n 28) 617. 42 Garland and Diamond (n 20) 97–8. 43 JE Dayner and others, ‘Medical Treatment of Intersex: Parental Perspectives’ (2004) 172 J Urol 1762. 44 Re NN, SU 337/99, para 70. 45 Zillén, Garland and Slokenberga (n 3) 44–45. 46 In addition to the need for assistance in urination for children with an internalized vagina, other children may need assistance to drain menses. See Consortium on the Management of Disorders of Sex Development, ‘Clinical Guidelines for Management of Intersex Disorders in Childhood’ (2006) 6 and 28–32. Feminizing surgery on infants and young children was designed to avoid gender choices later in life–even if multiple surgeries were needed—given that future, feminizing surgeries would be consistent with the chosen gender. Concerned clinicians, however, have warned of the risk of catastrophic errors due to such decisions and have urged conservative treatment options—delaying surgery until the minor could give dispositive input, if not consent (CP Houkand PA Lee, ‘Approach to Assigning Gender in 46,XX Congenital Adrenal Hyperplasia with Male External Genitalia: Replacing Dogmatism with Pragmatism’ (2010) 95 J Clin Endocrinol Metab 4501, 4504). And yet, because some children begin to menstruate at the age of 9 or 10 years, clear protocols are needed to ensure that the least invasive surgery takes place to preserve the treatment options until the child may fully consent, even if parental consent is also needed in such cases to what is medically necessary. See Zillén, Garland and Slokenberga (n 3) 14 and 43; Garland and Diamond (n 20) 95–6. 47 Lee and others (n 1) 168. 48 Byne and others (n 21) 787. 49 WG Reiner, ‘Prenatal Gender Imprinting and Medical Decision-Making: Genetic Male Neonates with Severely Inadequate Penises’ in S Preves (ed.) Ethics and Intersex (Springer, Dordrecht 2005) 153–63. 50 Garland and Diamond (n 20) 90–91; AB Baratz and EK Feder, ‘Misrepresentation of Evidence Favoring Early Normalizing Surgery for Atypical Sex Anatomies’ (2015) 44 Arch Sex Behav 1761; Diamond and Garland (n 22) 3. 51 Garland (n 5) 580–85. 52 Human Rights Committee, General Comment No 29: art 4: Derogations during a State of Emergency, CCPR/C/21/Rev.1/Add.11, para 7. 53 For example, for states of emergency, one of the most extreme justifications offered for derogations in specific contexts, the Human Rights Committee has explained that the right to be treated with inherent dignity and the rights of minorities may be now construed as non-derogable even though they are not defined as such by treaty instruments. ibid, para 13. 54 Garland (n 5) 173–85. 55 Concluding observations of the Committee on the Elimination of Discrimination against Women (Germany), CEDAW/C/DEU/CO/6 (2009), para 62; Concluding observations of the Committee on the Elimination of Discrimination against Women on Costa Rica, CEDAW/C/CRI/CO/5-6 (2011), para 41. 56 Section III.A.2. 57 Méndez (n 2), paras 32–33 and 76–77. 58 World Health Organization, Eliminating Forced, Coerced and Otherwise Involuntary Sterilization (n 2) 7–8, World Health Organization, Sexual Health (n 2) 26–27. 59 High Commissioner for Human Rights (n 2). 60 See n 2. Much of this work has been aided if not undertaken by Zwischengeschlecht.org <http://stop.genitalmutilation.org/> accessed 1 August 2018. 61 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (adopted 10 December 1984, entry into force 26 June 1987) 1465 UNTS 85. 62 Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3. 63 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3. 64 Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13. 65 Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3. 66 International Covenant of Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171. 67 Committee against Torture, Concluding observations of the Committee against Torture (Germany), CAT/C/DEU/CO/5, para 20 (2011). 68 ibid. 69 See eg Committee against Torture, Concluding Observations on the Sixth Periodic Report of Austria, CAT/C/AUT/CO/6 (2016), paras 44–45, Committee against Torture, Concluding Observations on the Sixth Periodic Report of Denmark, CAT/C/DNK/CO/6-7 (2016), paras 42–43. 70 Committee against Torture, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Comment No 2 Implementation of art 2 by States Parties, CAT/C/GC/2 (2008) paras 15–23 and Committee against Torture, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Comment No 3, Implementation of art 14 by States Parties, CAT/C/GC/3 (2012) paras 16 and 46(n). 71 CAT/C/GC/2, ibid, para 22. 72 CAT/C/GC/3 (n 70), paras 1–2. 73 Fundamental Rights Agency and the Council of Europe, Handbook on European Law Relating To the Rights of the Child (2015) 17–19; Inter-American Court of Human Rights (2017), Advisory Opinion 24/17, paras 151–53. 74 See eg Concluding Observations on the Combined Second to Fourth Periodic Reports of Switzerland, CRC/C/CHE/CO/2-4 (4 February 2015), paras 42–43; Concluding Observations on the Combined Third and Fourth Periodic Reports of Ireland (2016) CRC/C/IRL/CO/3-4, paras 39–40. 75 See eg Committee on the Rights of the Child, General Comment No 14 (2013) on the right of the child to have his or her best interests taken as primary consideration, CRC/C/GC/14. Committee on the Rights of the Child, General Comment No 12, The right of the child to be heard (2009) CRC/C/GC/12. 76 Committee on the Rights of the Child General Comment No 5, General Measures of Implementation of the Convention on the Rights of the Child (arts 4, 42 and 44, para 6) (2003), paras 77 Committee on the Rights of the Child, General Comment No 12 (n 75), para 109. 78 The category was not limited to specific practices identified formally with the adoption of the CRC. Office of the United Nations High Commissioner for Human Rights, Legislative History of the Convention on the Rights of the Child (United Nations 2007) 593–96. 79 Committee on the Right of the Child, General Comment No 8 (2006), The Right of the Child To Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment, CRC/C/GC/8, para 37. 80 Committee on the Rights of the Child, General Comment No 14 (2013) (n 75), para 55. 81 Office of the United Nations High Commissioner for Human Rights (n 78) 383. 82 Committee on the Rights of the Child, General Comment No 14 (n 75), para 55. 83 Committee on the Rights of the Child, General Comment No 3 (2003), Adolescent Health and Development in the Context of the Convention on the Rights of the Child, CRC/GC/2003/4, paras 11–13, 33. 84 See eg Concluding Observations on the Sixth Periodic Report of the Netherlands, E/C.12/NLD/CO/6 (2017), paras 48 and 49; Concluding Observations on the Fifth Periodic Report of Australia, E/C.12/AUS/CO/5 (2017), paras 49 and 50. 85 Committee on Economic, Social and Cultural Rights, General Comment No 20 Non-discrimination in economic, social and cultural rights, E/C.12/GC/20, (2009), paras 8–10 and 32. 86 ibid 20; see also Committee on Economic, Social and Cultural Rights, General Comment No 3, The Nature of States Parties’ Obligations, INT_CESCR_GEC_4758_E, para 5. 87 Committee on Economic, Social and Cultural Rights, E/C.12/2005/411, The Equal Rights of Men and Women To the Enjoyment of All Economic, Social and Cultural Rights (art 3 of the International Covenant on Economic, Social and Cultural Rights) (2005), para 29. 88 Committee on Economic, Social and Cultural Rights, General Comment No 5, Persons with Disabilities (1994), paras 15 and 19. 89 ibid, paras 32 and 34. 90 See Committee on Economic, Social and Cultural Rights, The Right to the Highest Attainable Standard of Health, General Comment No 14 (2000), para 8. The ESCR Committee considers essential health care a ‘minimum core obligation’ for states. See Committee on Economic, Social and Cultural Rights, General Comment No 3 (n 86), para 10. 91 ibid, para 51. 92 ibid, para 35. 93 ibid, paras 18–19. 94 Committee on the Elimination of Discrimination against Women, Concluding observations of the Committee on the Elimination of Discrimination against Women: Germany, CEDAW/C/DEU/CO/6 (2009), para 20. 95 See eg Committee on the Elimination of Discrimination against Women, Concluding Observations on the Combined Seventh and Eighth Periodic Reports of France, CEDAW/C/FRA/CO/7-8(2016), paras 18(f)–19(f). 96 ibid, para 9. 97 See eg Concluding Observations on the Initial Report of Italy, CRPD/C/ITA/CO/.1 (2016), paras 45–46; Concluding Observations on the Initial Report of the United Kingdom of Great Britain and Northern Ireland, CRPD/C/GBR/CO/1 (2017), paras 10–11 and 38–41. 98 Observations finales concernant le quatrième rapport périodique de la Suisse, CCPR/C/CHE/CO/4 (2017), paras 24–5. 99 Committee on the Rights of the Child General Comment No 5, paras 5 and 56. 100 Zillen, Garland and Slokenberga (n 3). 101 PACE Resolution 2191 (n 3), para 7.1. 102 Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, CETS No 164. 103 Goodwin v United Kingdom [GC] App no 28957/95 (EtCHR 11 July 2002), para 82. 104 ibid, paras 81–82. 105 ibid, para 82. Van Kück v Germany, App no 35968/97 (ECHR 12 June 1993), para 59. 106 AP, Garçon and Nicot v France, App nos 79885/12, 52471/13 and 52596/13 (ECHR 6 April 2017); YY v Turkey, App no 14793/08 (ECHR 10 March 2015), paras 35–43. 107 Markin v Russia, App no (ECHR 22 March 2013), para 140. 108 Hämäläinen v Finland [GC]. App no 37359/09 (ECtHR16 July 2014), paras 109–14. 109 Z and others v UK [GC], App no 29392/95 (ECtHR 10 May 2001), paras 105–11. 110 Jalloh v Germany [GC], App no 54810/00 (ECtHR 11 July 2006), paras 74–83. 111 Bouyid v Belgium [GC], App no 23380/09 (ECtHR 28 September 2015), paras 86–7. 112 Peers v Greece, App no 28524/95 (ECHR 19 April 2001), para 74; Riad & Idiab v Belgium, App nos 29787/03 and 29810/03 (ECtHR 24 January 2008), para 107. 113 Söderman v Sweden, App no 5786/08 (ECHR 12 November 2013), paras 79–95. 114 See eg SF Ahmed and others, ‘The European Disorder of Sex Development Registry: A Virtual Research Environment’ (2010) 4 Sex Dev 192. Such research projects are authorized pursuant to Title XIX TFEU ‘Research and Technological Development and Space’. While EU institutions generally do not take responsibility over what has been scrutinized and concluded, the latter two are closely related to exercising authority by the EU actors. See Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326. 115 Fundamental Rights Agency, ‘The Fundamental Rights Situation of Intersex People’ (April 2015) 1. 116 ibid. 117 Council Regulation (EC) No 168/2007, establishing a European Union Agency for Fundamental Rights [2007] OJ L 53, art 2. 118 See art 4.1.c and 4.1.f as opposed to art 4.1.d of the Council Regulation (EC) No 168/2007, establishing a European Union Agency for Fundamental Rights [2007] OJ L 53. 119 European Parliament Resolution of February 4 2014 on the EU Roadmap against Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity (2013/2183(INI)), paras 1, 4(C) & 4(G). 120 European Parliament Resolution of February 14 2017 on Promoting Gender Equality in Mental Health and Clinical Research (2016/2096(INI)), para 61. 121 Horizon 2020, for example, is the EU’s largest Research and Innovation program. Art 19 of the EU’s Horizon 2020 Regulation places a general obligation on funding seekers to comply, inter alia, with ethical principles or ‘any applicable legislation’. ‘Any applicable legislation’ under art 19 includes relevant national, union and international legislation, including the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights and its Supplementary Protocols. A proposal that fails to meet the applicable requirements ‘may be excluded from the evaluation, selection and award procedures at any time’. European Parliament and Council Regulation (EU) No 1290/2013 laying down the rules for participation and dissemination in ‘Horizon 2020—The Framework Programme for Research and Innovation (2014–2020)’ and repealing Regulation (EC) No 1906/2006 (Horizon 2020 Regulation) [2013] OJ L 347/ 81, art 13.4 122 E Baginska (ed), Damages for Violations of Human Rights: A Comparative Study of Domestic Legal Systems (Springer 2015). 123 European Commission for Democracy through Law, on the Implementation of International Human Rights Treaties in Domestic Law and the Role of Courts (Council of Europe 2014), paras 16–40. 124 See eg Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant (2004), para 8; Committee against Torture, General Comment No 2 (n 70), paras 15–17; Committee on Economic, Social, and Cultural Rights (n 87), para 27, and Committee on Economic, Social and Cultural Rights (n 90), para 35. 125 T Yang, ‘International Treaty Enforcement as a Public Good: Institutional Deterrent Sanctions in International Environmental Agreements’ (2006) 27 Mich J Int'l L 1131 (references omitted). 126 ibid 1141–42. 127 ibid 1143. 128 Office of the High Commissioner for Human Rights, Individual Complaint Procedures under the United Nations Human Rights Treaties (Fact Sheet 7, No 2, 2013). 129 ibid 8–10. 130 Sentencia número 1263/2018 (2018). 131 B Simmons, ‘Treaty Compliance and Violation’ (2010) 13 Ann Rev Political Sci 288–292. 132 R Sandland, ‘Lessons for Children’s Rights from Disability Rights’ in E Brems, E Desmet and W Wandenhole (eds), Children’s Rights Law in the Global Human Rights Landscape (Routledge 2017) 109–26. 133 Inter-American Court of Human Rights (n 73), paras 151–53. 134 S Slokenberga, European Legal Perspectives on Health-Related Direct-to-Consumer Genetic Testing (Jure 2016) 53. 135 Explanatory Report to Convention on Human Rights and Biomedicine (2002), para 144. 136 Slokenberga (n 134) 142–47. 137 Explanatory Report to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (2002), para 49. 138 The Committee may issue recommendations to Member States. See Statute of the Council of Europe, ETS No 1, art 15(b). 139 Z and others (n 109), paras 101–11; Kuppinger v Germany, App No 62198/11, January 15 2015, para 137. 140 Boulois v Luxembourg [GC], App No 37575/04 (ECHR 3 April 2012), paras 91–101. See also J Garland, ‘Informed Consent as a Right’ (2018) 2018 Förvaltningsrättslig tidskrift 239–241. 141 Söderman (n 113), para 81. 142 See Section II.A.1, above. 143 S.H. and Others v Austria, [GC], App No 57813/00 (ECHR 3 November 2011), paras 103–07, Evans v United Kingdom [GC], App No 6339/05 (ECHR 10 April 2007), paras 81–2. 144 Nielsen v Denmark, App No 10929/84 (ECHR 28 November 1988). The Court has even recognized that parents have a right to participate in health care decisions where a child has a superior right. P & S v Poland, App No 57375/08 (ECHR 30 October 2012), para 110. 145 Glass v the United Kingdom, App No 61827/00 (ECHR 9 March 2004); MAK and. RK v the UK, App Nos 45901/05 and 40146/06 (ECHR 23 March 2010), paras 78–80. Indeed, the Court’s most noted recent inadmissibility decision has affirmed that national legal orders could deny treatment on children where benefits are uncertain, with a risk of prolonging the child’s suffering. See Gard and Others v United Kingdom, App No 39793/17 (ECHR 3 July 2017), paras 6–36. 146 Lopes De Sousa Fernandes v Portugal [GC], App No 56080/13 (ECHR 19 December 2017), paras 168–69. 147 Söderman (n 113), paras 80–6. 148 Slokenberga (n 134) 307–24. 149 K Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge University Press 2015). 150 Centre for Legal Resources on Behalf of Valentin Câmpeanu v Romania [GC], App No 47848/08 (ECHR 17 July 2014), paras 100–114; see also Z and others (n 109), para 42. 151 O’Keeffe v Ireland, App No 35810/09 (ECHR 28 January 2014), para 114. 152 Consolidated Version of the Treaty on European Union [2012] OJ C326, art 5. 153 Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, art 3(1)(h). See also G Di Federico, ‘Access to Healthcare in the European Union: Are EU Patients (Effectively) Protected against Discriminatory Practices?’ in L Rossi and F Casolari (eds), The Principle of Equality in EU Law (Springer International Publishing 2017) 235–36. 154 Slokenberga (n 134), 172–213, 224–26, 310–13. 155 JHH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale L J 2403, 2410–83. 156 A von Bogdandy, ‘The European Union as a Human Rights Organisation?’ (2000) 37 Common Mark Law Rev 1307. 157 Charter of Fundamental Rights of the European Union [2012] OJ C 326/02. The limits of EU law in this regard, however, have not been ascertained. 158 ibid, art 51.1. 159 See the nations listed in n 2. 160 See ECHR, Guidelines on the Implementation of the Advisory-Opinion Procedure Introduced by Protocol No. 16 to the Convention ECHR (2017). 161 Re NN (n 44) paras 44, 83, and 88; see also Garland (n 5) 576. © The Author(s) 2018. Published by Oxford University Press; All rights reserved. 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TI - Protecting the Rights of Children with Intersex Conditions from Nonconsensual Gender-Conforming Medical Interventions: The View from Europe
JF - Medical Law Review
DO - 10.1093/medlaw/fwy039
DA - 2019-08-01
UR - https://www.deepdyve.com/lp/oxford-university-press/protecting-the-rights-of-children-with-intersex-conditions-from-eSqLcH0ALq
SP - 482
VL - 27
IS - 3
DP - DeepDyve
ER -