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Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at The National Engagement on the Promotion and Protection of the Human Rights of Intersex Persons, at the Protea Hotel Parktonian, 11 December 2017

The UN’s Free and Equal Campaign tell us that up to 1,7%  of the world’s population are intersex – that’s roughly the same percentage of the population as those who have red hair.
That means that up to two million babies are born every year with intersex traits – intersex traits, that research tells us, can take at least 40 different congenital variations.
When I watched one of Intersex South Africa videos I was particularly struck by some of the observations and experiences.  Francina Phiri said:
“The change I would like to see in South Africa is for intersex people to be recognised and not isolated.”

Babalwu Mtshawu, speaking about parents of intersex children:
“They need to get as much information about their child’s condition before making any decision. And they do not have to make decisions for their children.”
And Tebogo Makwati said:
“The system itself doesn’t give room for such conversations to happen which is a challenge and leads to a lot of misinformed decisions being made by parents.”

Francina, on what we can do to raise awareness, said:
“I would like to have a campaign where school children are educated about intersex people.”

Crystal Hendricks summed it up well when she said:
“We have accepted ourselves and we are just waiting for South Africa to come to the party.”

That’ why we are here today. Today’s meeting is exactly that – a step closer to us all coming to the party.

There is no doubt that intersex people face appalling stigmatization and discrimination, as children and as adults.  In certain regions of the world when an intersex variation is visible at birth it may result in infanticide, abandonment and the stigmatization of families.
In addition, what used to be called “normalising” surgery, to make very young children look more typically male or female, has been standard practice for decades.
Today, we know it is intersex genital mutilation.
IGM practices have been described as non-consensual, medically unnecessary, irreversible, cos­metic genital surgeries, and/or other harmful medical treatments that would not be considered for so-called “normal” children, without evidence of benefit for the children concerned, but justified by societal and cultural norms and beliefs.

In a 2016 interview in the UK’s The Guardian parents talk of their experiences after the birth of their intersex children. They talk of a lack of knowledge and peer support. They speak of being pressured, nearly coerced, into surgery and being led to believe that they are acting the best interests of their child.
One said:

“One of the doctors described it to us as your baby being born with an extra nose on their face. Would you leave it there, or would you fix it?”

Another said:

“We were of a mind to leave all treatment for as long as possible, so that we could involve him. No one ever asked us, are you OK with this? It was just, this is what we’re going to do. Abnormality, disorder, problem – these are all the words that are thrown at you.”

So what is the world doing about it?
The United Nations, as part of Free and Equal, has urged states –

  • To prohibit medically unnecessary surgery and procedures on the sex characteristics of intersex children, protect their physical integrity and respect their autonomy.
  • To ensure that intersex people and their families receive adequate counselling and support, including from peers.
  • To prohibit discrimination on the basis of intersex traits, characteristics or status, including in education, health care, employment, sports and access to public services, and address such discrimination through relevant anti-discrimination initiatives.
  • To ensure that human rights violations against intersex people are investigated and alleged perpetrators prosecuted, and that victims of such violations have access to effective remedy, including redress and compensation.
  • To enact laws to provide for facilitated procedures to amend sex markers on the birth certificates and official documents of intersex people.
  • To provide health care personnel with training on the health needs and human rights of intersex people and the appropriate advice and care to give to parents and intersex children, being respectful of the intersex person's autonomy, physical integrity and sex characteristics.
  • To ensure that intersex people and organizations are consulted and participate in the development of research, legislation and policies that impact on their rights, and
  • National human rights bodies should research and monitor the human rights situation of intersex people.

In 2013, Australia adopted the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act – the first law to include intersex status as a stand-alone prohibited ground of discrimination. The Australian Senate has also carried out an official inquiry into the involuntary or coerced sterilization of intersex people.

In 2015, Malta adopted the Gender Identity, Gender Expression and Sex Characteristics Act – the first law to prohibit surgery and treatment on the sex characteristics of minors without informed consent.
The Act states that it is unlawful for medical practitioners or other professionals to conduct any sex assignment treatment and/or surgical intervention on the sex characteristics of a minor which treatment and/or intervention can be deferred until the person to be treated can provide informed consent: Provided that such sex assignment treatment and/or surgical intervention on the sex characteristics of the minor shall be conducted if the minor gives informed consent through the person exercising parental authority or the tutor of the minor.
In exceptional circumstances treatment may be effected once agreement is reached between an interdisciplinary team of healthcare professionals and the persons exercising parental authority over the minor.
The Maltese Act also specifically makes mention of a person’s “self determined gender identity”.

The Chilean government recently issued guidelines to doctors opposing corrective surgery, allowing them to refuse a parent and not face legal consequences and the parents of an adopted intersex boy are currently taking legal action against doctors and social services in South Carolina for performing surgery which was not medically necessary.

In 2013, Germany became the first European country to allow parents to register newborns as neither female nor male, if the child was born with characteristics of both sexes. Last month Germany’s constitutional court ruled that binary gender designations violated the right to privacy.
The court ruled that the current system, which does not provide for a third option - besides the entries female or male - is unconstitutional.
The Court gave the legislature until the end of next year to either allow the introduction of a third gender category or dispense with gender in public documents altogether.

In September last year, at the 73rd Session of the United Nations’ Committee of the Rights of the Child, the Committee considered the second periodic report of South Africa and adopted the present concluding observations on 30 September 2016.
The Committee expressed its concern at the high prevalence of harmful practices in South Africa, which include child and forced marriage, virginity testing, witchcraft, female genital mutilation, polygamy, violent or harmful initiation rites and intersex genital mutilation. The Committee also mentioned ukuthwala.

The Committee urged South Africa to guarantee the bodily integrity, autonomy and self-determination of all children, including intersex children, by avoiding unnecessary medical or surgical treatment during infancy and childhood.
In our reply to the Committee the South African delegation acknowledged that we are aware of the need to stop the practice of intersex genital mutilation.
In his address to the Committee, Zane Dangor from the Department of Social Development, said that as a government we do recognise that being intersex is a sexual characteristic and not a medical condition, but at the same time we recognise that there are still practices where newborns and young children are having surgeries performed on them which are harmful.
Intersex rights activists commended South Africa as the very first state to officially recognise the essentially harmful practices on intersex children at the UN. Mr Dangor continued to say that –

“So we are now beginning a process in its early stages, to acknowledging that it’s happening, to engage with universities, particularly the university children’s clinics and other medical practitioners around the fact that this is not a medical condition, that surgeries performed at a very young stage are harmful and that it needs to stop.
So we will be engaging with all the relevant stakeholders on that.”

Today’s meeting is an example of this vital engagement with stakeholders.

From a legislative point of view, we have the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, where we inserted the definition of “intersex” in 2005, under the definition of “sex”, as one of the prohibited grounds upon which one may not be discriminated against - the first country in the world to do so.
We have the Alternation of Sex Description and Sex Status Act, 2003.
I can also advise that intersex is also specifically mentioned in our new Prevention and Combating of Hate Crimes and Hate Speech Bill, so as to criminalize any hate crimes or hate speech aimed at intersex persons.

With regards to possible new legislation to prohibit surgery on intersex children, this is something that government and relevant stakeholders will have to engage on further.
I will, in any event, undertake to raise the issue with the Ministries of Health, Home Affairs and Social Development and this is also something that can be placed on the ongoing agenda of the National Task Team on LGBTI Rights.
In the meantime, in addition to raising awareness, more thought could be given to ways of informing and empowering parents of intersex newborns.
As intersex activist Hida Viloria writes -

“My goal was that a parent who might have recently had an intersex child or have one in the future would see my interview and think, "Oh, being intersex is fine and this person has been able to grow up happy and successful and feel good about themselves. There's no reason I have to cut up my child's body in this non-consensual, irreversible way. I'll just let them grow up and decide later on if they want to change anything about their body, the way most people get to decide."

There are many ways of raising awareness and specifically empowering parents.
For example, the Department of Justice and Constitutional Development has a radio programme, Let’s Talk Justice, which broadcasts to 65 community radio stations countrywide has been such a success that it is already in its third season. In the programme, a different justice related topic is covered every week and it is broadcast at 18h05 on Tuesdays and Thursdays.
Perhaps an episode, focusing specifically on intersex issues, is something that can be explored.

Consideration should also be given to one of the Chapter 9 institutions, perhaps the South African Human Rights Commission or the Commission for Gender Equality, or both, to conduct public hearings and/or an investigation.

Ultimately the message we want to get it out is best said by Babalwa Mtshawu, when she said in the video clip:
“There is nothing wrong with us. We are human beings like everybody else and we are just trying to live a normal life.”

I wish you the best today’s engagement - may it be the first of many to come.

I thank you.