Briefing Paper Recognition of Intersex in English Law
‘Intersex’ is an umbrella term for a variety of physical conditions where a person’s body simultaneously combines traits of both males and females. The official medical terminology is ‘disorder of sex development’ (DSD) and it implies not a disease process (where one would look for a cure), but an atypical developmental process. “Intersex” is an older medical term, poorly defined, and often used by patient-advocates who are asking for more humane medical care. Consequently, while ‘DSD’ has medical meaning, many people with a DSD prefer to use the term ‘intersex’. Intersex UK uses both terms ‘intersex’ and ‘DSD’ to signal our commitment to listening with compassion and respect to all affected people, however they choose to identify.
Current English law does not recognise intersex. As sex assignment for children with DSD is not an exact science, even with the most up-to-date science, physicians sometimes make an error and assign the wrong sex. Consequently for some intersex people the gender recorded on the birth cert, and thus the gender as which they are legally recognised, does not match the gender as which they subsequently develop. Furthermore, not all intersex conditions are recognisable at birth and therefore become apparent later in life. Legal gender is an important factor in ones interaction with the State and where a mismatch between legal and preferred gender is apparent, this can cause much unnecessary difficulty. For example difficulties in accessing education (where schools are single sex), inability to marry in the preferred gender role (where ones wishes to marry a person of the opposite gender), difficulties with adoption and surrogacy are just some examples of the interferences in the life of an intersex person as a result of inaccurate official documentation. A further important issue to consider is that of imprisonment, the difficulties of imprisoning a convicted intersex offender were highlighted in the US Federal District Court case of DiMarco v Wyoming Dept of Corrections (2004) 300 F Supp 2d 1183.
Under legislation in England and Wales, at present all children must be declared as either the male or female gender shortly after birth (Births and Deaths Registration Act 1953). There is no legislative definition for either of these two categories. Thus to understand what a male or female is under English law one must look to case law. In Corbett v Corbett (Otherwise Ashley)  2 All ER 33, the High Court of England and Wales ruled that legal sex, for marriage purposes, was determined by the congruence of the chromosomes, gonads and genitals at birth. This biological and temporal test cannot account for intersex individuals whose bodies might not align in this manner at birth, or might change over time so that they are no longer congruent. This biological and temporal test was adopted in R v Tan  QB 105 as the test for legal sex regardless of the context. Acknowledging that this test was inadequate in the context of intersex, the Court in Corbett held that in such cases the genital factor should be determinative. However, a review of the medical literature on the issue reveals that the genital factor is no more certain or determinative than any other factor as far as the development of an individual’s gender identity is concerned. This failure to properly account for the reality of intersex bodies was acknowledged by the High Court in W v W  1 FLR 324, where Charles J determined the legal sex of Mrs W outside the context of the Corbett precedent. Whether this case is itself sufficient to set a precedent enabling intersex people to self select their gender of preference remains untested by the courts. However, it is important to note that there is no mechanism within the law of England and Wales to alter the sex recorded on the birth certificate where it later transpires that this recording was incorrect.
The Gender Recognition Act 2004 (GRA) introduced a scheme whereby a person with a diagnosis of gender identity disorder can apply to the Gender Recognition Panel for a Gender Recognition Certificate (GRC). This can then be used to receive an alternate birth certificate reflecting the applicant’s preferred gender identity. This neither quashes nor replaces the original birth certificate (and thus does not negate any acts undertaken in the birth gender) however it can be produced in place of the original birth certificate where production of that document is necessary. This alleviates much of the discrimination and distress routinely experienced by transgender people when they are forced to confront the fact of their legal gender not matching their gender of presentation. Under this legislative scheme, intersex people are impliedly excluded from obtaining a gender recognition certificate and consequent legal recognition of their preferred gender identity when this does not match the gender recorded at birth. To gain recognition under the GRA an applicant must have a diagnosis of gender identity disorder. This condition is not defined in the legislation, however, the medical definition of gender identity disorder contained in the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition, Text Revision, American Psychiatric Association 2000) explicitly excludes physical intersex as a diagnostic criteria. Thus a person cannot be intersex and have a diagnosis of gender identity disorder, hence by implication all intersex people are excluded from the ambit of legal recognition under the GRA.
The lives of intersex people could be considerably improved by the introduction of a legal mechanism which would enable recognition of their preferred gender identity. There are two simple ways which this could be achieved: amend the Births and Deaths Registration Act 1953 to enable to correction of a birth certificate to reflect the preferred gender identity of a person with intersex where it is diagnosed, or expertly determined in instances where specific diagnosis is impossible but the body is nonetheless intersex, subsequent to registration or amend the Gender Recognition Act 2004 to enable a person with intersex to obtain a GRC and thus achieve legal recognition in their preferred gender. However, it is important to note that many intersex people would not opt for a GRC due to the fact that it is operative in a prospective manner only. Thus it would not acknowledge the fact that the intersex person may have been incorrectly assigned a gender at birth and consequently possession of a GRC may lead people to think that an intersex person has actually changed rather than evolved from the assumed gender at birth. Additionally, its entrenched association with transgender identity may be a barrier for some intersex people to accessing a GRC as they wish to differentiate intersex from trans identities. Therefore, the preferred legal amendment for many intersex people would be to amend the Births and Deaths Registration Act 1953. While this continues to perpetrate a binary understanding of gender and thus will not enable an intersex person who identifies outside the male/female dyad to achieve recognition in their preferred identity, nonetheless, given the possibilities of retrospective effect this is the preferred mechanism to achieve legal recognition. Crucial in all this is ensuring that the mechanism chosen is capable of responding to developing knowledge in the area of intersex – particularly as regards those intersex bodies which are not specifically diagnosable. Therefore it is essential that the reform is sufficiently flexible to accommodate variations of human morphology which may result in an individual being intersex which are not yet fully understood by medical science.
Intersex UK, 2011