The ‘normalisation’ of intersex bodies and ‘othering’ of intersex identities

Published in 2018 and now shareable here, this book chapter examines a contradiction: that policies aimed at protecting LGBTI populations coexist with policies and practices that harm people with intersex bodies.
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The Legal Status of Intersex Persons (cover)
This book chapter was originally published on 12 September 2018. Under the terms of the publishing license, I am now able to share it here on my personal site.

Here’s the introduction to the chapter:

In 2015, a UN factsheet named Australia and Malta as countries that have made demonstrable progress in recognising the human rights of intersex people. Australia had held the first Parliamentary inquiry on involuntary or coerced medical interventions, and also added an attribute of ‘intersex status’ to federal anti-discrimination law. Australia also implemented a federal third-sex classification, and laid claim in 2017 to ‘some of the most advanced laws in the world, including on intersex status’. Yet the report of the Parliamentary inquiry has not been implemented and so-called medical ‘normalisation’ of intersex bodies continues with the imprimatur of the Family Court of Australia. In contrast, Malta had enacted legal protections for the bodily autonomy of infants and children.

The coexistence in Australia of both legal inclusion and surgical ‘normalisation’ indicates a disjunction between what is said and what is done; between a rhetoric of inclusion and the reality of human rights violations. The situation also indicates a lack of connection between policies and practices designed to protect people with non-normative identities, and policies and practices affecting the treatment of people born with non-normative bodies.

A series of epistemic claims underpin these disjunctions. Policies and practices affecting people born with non-normative bodies are grounded in a medical discourse about abnormality and, in the context of non-normative sex characteristics, a medical discourse of ‘disorders of sex development’. In response to challenges to medical jurisdiction, clinicians have made claims about consensus regarding treatment; attempted to marginalise and discredit critics; and made claims about change or improvements to clinical practices.

Policies and practices affecting people with non-normative identities are reflected in legal and social discourse associated with lesbian, gay, bisexual and transgender (LGBT) populations. This discourse directly and indirectly frames intersex people as being members of a third sex. This is associated with claims about solutions for the human rights concerns regarding forced medical interventions; claims of deception that promote medical authority over intersex bodies; and claims of sex diversity that are deployed to justify the demands of other populations.

This chapter outlines and discusses these claims and counter-arguments, drawing upon international developments and events in Australia. It will show that the two dominant discourses – medical normalisation and socio-legal other-ing – reflect radically different understandings about who intersex people are, with profound ethical, human rights and health consequences arising from their resulting policies and practices. The two discourses interact, sometimes with only incidental consideration, or even knowledge, of the other, but this is not well recognised or understood. Similarly, the two dominant discourses are themselves sometimes inconsistent or even contradictory.

This chapter will show that the two approaches and their disjunctions have harmful consequences. The chapter will show that neither model is based around principles of self-determination, that is, around the principles of autonomy, choice and informed personal consent. Disjunctions, paradoxes and popular misconceptions also have consequences for the exercise of self-determination, including access to information, and to peers. These disjunctions have led to policy developments that fail to take full account of the human rights and health needs of affected individuals and their families. The effect is that intersex bodies remain ‘normalised’ or eliminated by medicine, while society and the law ‘others’ intersex identities. That is, medicine constructs intersex bodies as either female or male, while law and society construct intersex identities as neither female nor male. Indeed, medicalisation is posed as a solution to stigma and othering, while legal othering is posed as a solution to medicalisation. Neither approach is grounded firmly in evidence.

In response to incommensurate medical and third-sex models, an emerging human rights model seeks to address these harms, disjunctions and paradoxes, focusing on the rights to bodily integrity and truth, and the principle of self-determination.

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The chapter can be found online via Cambridge Core and the DOI 10.1017/9781780687704.028.

Print and ebook editions can also be found via the Intersentia (publisher) website.

Here’s an example citation for the chapter:

Carpenter, Morgan. 2018. ‘The “Normalisation” of Intersex Bodies and “Othering” of Intersex Identities’. In The Legal Status of Intersex Persons, edited by Jens Scherpe, Anatol Dutta, and Tobias Helms, 445–514. Cambridge, England: Intersentia. doi:10.1017/9781780687704.028.