Legislating intersex equality: Building the resilience of intersex people through law

Abstract

This paper presents the findings from the first qualitative study to consider the relationship between intersex experience and law, representing a significant contribution to a currently under-researched area of law. Since 2013 there has been a global move towards the legal recognition of intersex, with Australia, Germany and Malta all using different techniques to construct and regulate intersex embodiment. This paper is the first to compare and problematise these differing legal approaches in the legal literature. In doing so it demonstrates that many of these approaches are grounded in ideas of formal equality that lead to the entrenchment of vulnerability and fail to build resilience for the intersex community. Through engagement with the intersex community a more contextual account of substantive equality is enabled, encouraging new approaches to law and social justice. Our qualitative study revealed that prevention of non-therapeutic medical interventions on the bodies of children was understood to be the key method to achieving equality for intersex embodied people. Whilst this is the cornerstone of intersex-led legislative reform, such an approach necessitates support through a mixture of formal and substantive equality methods such as anti-discrimination law, education and enforcement procedures. This paper concludes by offering a series of recommendations to legislators capable of enabling substantive intersex equality.