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Report on SA Human Rights Commission workshop

By Sally Gross

Held 30 November 2004. Focused on whether there is a need for legislation re ‘normalisation’ surgery on genitalia of intersexed infants born with ambiguous genitalia. Since 1999 SG has tried to get statutory bodies to recognise intersexuality as an issue which raises human rights concerns. Intersexed people in SA are deeply closeted. SG has appeared in different media during these past few years. 99% of approaches made to SG in response were from people who were transsexual. The incidence of transsexuality is much lower than intersexuality, but it is much more visible than intersexuality, and seems to threaten the status quo far less. SG drafted an insertion for the Provision of Equality Act (which governs the interpretation of the Equality Clause in the Constitution) in 2002. It should pass into law next year, and now has the support of the SAHRC. In terms of existing law, in which key terms depend on standard dictionary-definitions, intersex is not covered by the definitions of “sex”, “person” as in “natural person” or “human being”, since a set of linked lexical definitions incorporate a hard “male-female” dichotomy which does not allow for human beings do not conform physically to this supposedly comprehensive dichotomy.

In common with the international intersex activist movement, SG recommends the following with regard to surgery: no non-consensual genital surgery should be imposed unless is necessary for the preservation of life or physical health, and when non-consensual surgical intervention is necessary it should be restricted to what is needed for the preservation of life and physical health. No irreversible non-consensual genital surgery which will pre-empt future life choices should be performed, unless needed to preserve life or physical health.. A best guess at optimal gender or rearing should be made on the basis of investigation of specifics, but it must be realised that even the most judicious best guess could turn out to be wrong. The issue of gender of rearing and the issue of surgery are different ones: rearing as male or as female should not be thought to require non-consensual genital surgery.

Purpose of workshop was to discuss the practice of imposing genital surgery on intersexed infants born with ambiguous genitalia. Views in defence, and opposition (SG), to surgery were expressed at the workshop. Most medical personnel, including those opposed to the imposition of surgery, were not keen on legislative regulation.
SG expects that legislation may be drafted in future.

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