A. Introduction
“My entire life was becoming a sex-gender Truman show—constructed for me by people who thought they knew better than me.”Footnote 1 – Pidgeon Pagonis.
It is estimated that around 1.7% of the world population is intersex,Footnote 2 a blanket term to include all individuals whose sex characteristics do not fit within the normative social construct of binary categories of male and female. Intersex individuals are born with “sex characteristics (such as chromosomes, genitals, and/or hormonal structure) that do not belong strictly to male or female categories, or that belong to both at the same time.”Footnote 3 Thus, an intersex variation can be visible at birth or only become known to the individual later in life, if ever. Indeed, there exist many different types of intersex variations which affect the body of the individual to different extents. It is fundamental to note that a variation of sex characteristics is separate from one’s gender identity and expression, and sexual orientation. Thus, intersex individuals may identify as male, female, both, or neither—non-binary—and be heterosexual, homosexual, or bisexual. It is also important to mention that many intersex persons will not declare themselves to be intersex, but rather understand their intersex status as part of who they are, not an identity marker. Regardless, intersex individuals face significant discrimination, marginalization, and physical and emotional violence due to their intersex status. Notably, many intersex individuals experience pressure and non–consensual attempts to “correct” and “normalize” their bodies to fit within what is deemed “normal” by medical professionals, their caregivers, and peers/partners.Footnote 4 Such violations of bodily autonomy can start as early as birth—notably with practices of non–consensual surgical intervention on newborns, also referred to as intersex genital mutilation (IGM),Footnote 5 as well as non–consensual hormonal and psychological treatments—and carry on into late childhood and adulthood.Footnote 6
In this context, it is not surprising that intersex individuals may seek out international protection to flee the violence they face in their home country. This is, however, not an easy enterprise, notably due to the fact that violations of intersex persons’ rights and bodily autonomy are also prevalent in many receiving states.Footnote 7 Numbers relating to the population size of this group are not available, but it has been flagged as an issue demanding the special attention and protection of states by many human rights bodies, such as the UN High Commissioner for Refugees (UNHCR)Footnote 8 and the Committee on the Rights of the Child (CRC Committee).Footnote 9 Nevertheless, intersex refugees and asylum seekers are systematically grouped with LGBTQ+ matters, with little to no specific attention given to the particular obstacles they face in obtaining international protection. This lack of attention is prevalent in the broader context of LGBTQI+ research and rights protection. We note, for instance, that the first edition of the Yogyakarta Principles, which is one of the authoritative documents on the protection of LGBTQI+ rights, only mentions intersex persons once and fails to further engage with the specific needs of this group.Footnote 10
This Article argues that the lack of attention given to the protection needs of intersex children seeking asylum crucially needs to be addressed. Moreover, it denies that the small number of recorded claims is a sign that this issue is not broad; rather, it argues that there are many underlying factors leading intersex individuals, and particularly children, to shy away from reporting the violence they face or to record their intersex status during their application. Therefore, it aims to analyze the ways in which the UN Convention on the Rights of the Child (UNCRC) can be mobilized to create clear guidelines on effective protection of the rights and health of intersex children seeking asylum. To this end, it will consider the following research question: Does a child rights approach to international refugee law provide for more protective access to qualification for refugee status for intersex children, and if so, in what ways?
To answer this question, this Article will first consider the existing legal frameworks in international refugee law, as well as international children’s rights law (Section B). Then, it will dive into how the different forms of harm faced by intersex children can be considered to amount to persecution for the purpose of establishing refugee status (Section C). It will further consider how intersex children can be qualified as a particular social group within the definition of the UNHCR (Section D). Finally, it will provide a critical lens on the current protection available to intersex children within the asylum framework and point out the crucial need for international accountability (Section E).
B. Legal Framework
I. International Refugee Law
State obligations regarding the protection of intersex children seeking asylum arise from many international, regional, and national legal sources. The cornerstone is the 1951 Refugee Convention, which defines a refugee in Article 1(A) as an individual who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwillingto avail himself of the protection of that country.”Footnote 11 Four criteria guide refugee status determination: (1) a well-founded fear, (2) risk of future persecution, (3) nexus to one of the protected grounds, and (4) lack of state protection. For intersex children, key difficulties lie in proving persecution and in their recognition as members of a “particular social group.”
The interpretation of the Refugee Convention is determined by the Guidelines and Handbook of the UNHCR. However, apart from the Convention and its protocols, UNHCR’s work is not legally binding and lacks enforcement mechanisms.
While it has not clearly recognized specific guidelines applying to LGBTQI+ children in general, the UNHCR has a clearer line of guidance regarding the assessment of LGBTQI+ adults’ claims than of children’s claims. Its most relevant text is the Guidelines on International Protection No. 9, addressing Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC). These Guidelines recognize that applicants with diverse SOGIESC face unique vulnerabilities, and persecution linked to real or perceived SOGIESC can warrant refugee status.Footnote 12 While the Guidelines focus mainly on sexual orientation and gender identity, they include intersex persons within their scope.Footnote 13 They briefly note that additional safeguards may apply to child applicants but provide little detail on how SOGIESC and childhood intersect.Footnote 14
The UNHCR has developed more comprehensive instructions for assessing children’s claims through its Guidelines on Policies and Procedures for Unaccompanied Children Seeking AsylumFootnote 15 and the Guidelines on International Protection No. 8.Footnote 16 The refugee definition has often been interpreted through an adult–centric lens, which hinders the proper assessment of children’s cases.Footnote 17 The UNHRC thus urges states to adopt a child–sensitive approach which recognizes children’s capacity to apply for asylum independently,Footnote 18 their specific vulnerabilities,Footnote 19 as well as the need for interviews to be carried out by trained professionals.Footnote 20
In interpreting children’s rights, the UNHCR relies heavily on the UNCRC and the CRC Committee. It emphasizes that the “best interests of the child” (BIC) must be a primary consideration in all decisions affecting children, including refugee status determinations.Footnote 21 The International Refugee Law framework thus provides for limited guidance on the specific case of LGBTQI+ children, let alone intersex children specifically. In view of the absence of clear guidelines focusing on intersex children, this research proposes to infuse the international refugee law framework with the principles of international children’s rights law, notably the UNCRC and the CRC Committee.
II. International Children’s Rights Law
The UNCRC is the most widely ratified human rights treaty, with all UN member states, except the United States, having ratified it. The CRC Committee interprets the Convention through its General Comments and examines individual complaints under its Optional Protocol, ratified by over fifty states. Beyond mere reference by the UNHCR, states must use the UNCRC as an interpretive tool when applying the Refugee Convention, in accordance with Article 31(3)(c) of the Vienna Convention on the Law of Treaties. Under Article 2 of the UNCRC, states must guarantee the rights of all children within their jurisdiction without discrimination, including on the basis of migration status.Footnote 22
The CRC Committee’s General Comment No. 6 clarifies state obligations regarding children seeking asylum. Although it does not explicitly address SOGIESC or intersex children, it outlines procedural safeguards such as the right to access asylum procedures regardless of age,Footnote 23 appointment of a guardian and legal representative, and the presumption of the child’s credibility (“benefit of the doubt”).Footnote 24 It also mandates that officials interacting with children be trained to understand their specific needs.Footnote 25 Crucially, it affirms that the best interests of the child must guide all decisions, including return to the country of origin, which should only occur if consistent with the child’s best interests. Determining the BIC requires a case–by–case analysis that considers the child’s full range of rights under the UNCRC.Footnote 26
Specific guidance on intersex children remains sparse. The inclusion of SOGIESC in the work of the CRC Committee is itself limited. Its General Comment No. 13 on freedom from violence lists LGB and transgender children as particularly vulnerable to violence but omits intersex children.Footnote 27 Similarly, General Comment No. 15 on the right to health mentions SOGI as a source of discrimination in access to healthcare but does not consider sex characteristics.Footnote 28 General Comment No. 14 on the Best Interests of the Child does note that the child’s identity under Article 8 includes “sex,” which, though not explicitly intended to cover intersex children, can be interpreted to do so.Footnote 29 The CRC Committee has addressed specific aspects of the protection of intersex children’s rights in its Concluding Observations to individual states.Footnote 30
When read together, international refugee law and international children’s rights law reveal a protection gap for intersex children seeking asylum. Nonetheless, states’ obligations under both frameworks can be harmonized to secure recognition of intersex children as potential refugees. A child rights–based approach to refugee qualification strengthens accountability and invokes the CRC Committee’s jurisdiction to review individual complaints. Because the UNHCR lacks enforcement authority and states retain discretion in refugee determinations, grounding protection in the UNCRC ensures more uniform obligations worldwide. Given its near–universal ratification, the UNCRC provides a consistent normative foundation for protecting intersex children, wherever their life journey takes them.
The following sections of this Article will thus aim to frame the criterion of the refugee definition as provided by Article 1(A) of the Refugee Convention through a child–rights lens in order to highlight state obligations to effectively provide refugee status to intersex children facing severe violations of their rights under the UNCRC and general international human rights law. As previously mentioned, while intersex children may encounter issues in establishing any of the four criteria, the crux of the problem lies in the recognition of the violation of rights they face as severe enough to amount to persecution (Section C) and in their recognition as a particular social group deserving of protection (Section D).
C. Defining the Harm Faced by Intersex Children as Amounting to Persecution
As a starting point, persecution lacks an exhaustive definition. This is a voluntary omission to allow for the inclusion of forms of harm that were not known to the original draft of the provisions. In order to define treatment as reaching the level of severity to be considered persecution, the generally accepted approach is a human rights framework which focuses on the identification of “sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”Footnote 31 Moreover, the UNHCR and CRC Committee have underlined that the threshold of persecution is lower when the harm is aimed at children. The UNHCR differentiates between child-specific manifestations of persecution, which are types of harm that can be faced by children and adults alike but are experienced with greater violence by children due to their age and child–specific forms of persecution which are specific to the experience of children.Footnote 32 This differentiated approach allows for two separate points to be brought to the attention of national decision makers. First, the assessment of whether harm reaches the threshold of persecution in children’s claims must consider the effect of harm on the child in light of their specific vulnerability and needs. Second, violations of rights that are specific to the UNCRC or violence that targets children because they are children must give rise to the recognition of persecution. The CRC Committee has endorsed this approach.Footnote 33
The next part of this Article will thus frame the ways in which existing state obligations to protect intersex children against ill–treatment frame such treatment as systemic violations of fundamental human rights, making them relevant for the eligibility of intersex children for refugee status.
I. Discrimination and Marginalization
Intersex persons, and notably intersex children who are all the more vulnerable to violence, face severe discrimination leading to marginalization in most countries. This discrimination can arise from private persons such as strangers in public spaces, family members including parents and peers, as well as medical professionals, teachers, et cetera. The discrimination faced by intersex persons can also be at the hands of the state, either through its effective enforcement of harmful practices on intersex children—see the following sections on violations of bodily integrity and legal gender/sex registration—or through its absence of effective protection of intersex children through policies. Such discrimination can take many forms. When the intersex status is physically visible, the discrimination is exacerbated. It is also likely that the intersex child will be perceived as either lesbian, gay, bisexual, or transgender by the perpetrator and thus will be exposed to discrimination on such grounds, regardless of their real identity.Footnote 34
The discrimination faced by intersex children can start even before birth, with reports of parents being advised by doctors to abort the child when it becomes clear that they present intersex variations. Cases of intersex infants being killed or abandoned at birth are also known in many parts of the world.Footnote 35 Non-Invasive Prenatal Testing (NIPT), including the testing of the sex chromosomes, is available to pregnant persons permitting detection of the embryo’s intersex status.Footnote 36 Medical guidelines emphasize the importance of giving a diagnosis before the deadline to get an abortion is reached if the child presents an intersex variation,Footnote 37 or “normalizing” procedures are advised and practiced on the embryo.Footnote 38 Although they do not actively advise abortion in such cases, it is likely that such things commonly happen in view of the medical community’s approach to intersex individuals.
Many intersex persons recall feeling forced to hide their identity, as well as internalize shame—forced on them as children by medical professionals and solidified by parents and, later on, peers.Footnote 39 In their memoir, Pidgeon Pagonis, an intersex activist, recalls having been told by a doctor to keep their hormone treatment private, so no one would know about their “abnormalities” apart from their family and doctors.Footnote 40 This also often leads medical professionals to hide part or all of the child’s medical records from the parents and the child themselves.Footnote 41 Many intersex persons do not realize they are intersex until later on in life. Indeed, many report that they, or their parents, were not given proper explanation as to their medical status or if their treatment was necessary and safe for them.Footnote 42 It was therefore not far–fetched for many to conclude that they should aim to limit this part of themselves and conform as much as possible to the expectations of the adults around them in order to “fit in.” This is effectively enforced by parents who limit their intersex child’s ability to share their intersex status with other family members, actively detain them at home,Footnote 43 or refuse to let them express their gender identity freely, either by stopping them from transitioning or simply by prohibiting them from wearing clothing or practicing activities typically associated with a specific gender.Footnote 44 Finally, it must be acknowledged that intersex persons may face intersectional discrimination based on other grounds, such as race, ethnic origin, or religion, which only heightens their vulnerability to violence.Footnote 45
In this context, states have strict obligations to ensure the right to non–discrimination under international human rights law, including within Article 2 of the UNCRC. The UNHCR, supported by the UNCRC, highlights that discrimination can constitute persecution for the purpose of establishing refugee status in children’s claims because it is likely to deprive them of social, economic, and cultural rights which are fundamental to their development.Footnote 46 This discrimination often leads to marginalization, which in turn limits the child’s ability to develop healthily. This includes discrimination in access to education, healthcare, and services, as well as employment later in life. This marginalization also translates into high rates of homelessness and poverty among LGBTQI+ youth.Footnote 47 Altogether, the discrimination faced by intersex children, coupled with the other rights violations they face, leads to serious barriers in the enjoyment of their rights as children, notably their right to develop in a safe and supporting environment as protected by Article 6 of the UNCRC.Footnote 48 Discrimination may thus be considered a child–specific manifestation of persecution which can give rise to the recognition of persecution in intersex children’s cases.
However, there is still significant work to be done in establishing intersex status as a protected ground under the prohibition of discrimination in international law and within most domestic systems.Footnote 49 Indeed, while the principle of non-discrimination is to be interpreted as including all forms of discrimination, the specific mention of “sex characteristics” as a ground of discrimination is often lacking. The European Parliament deplored the lack of recognition of sex characteristics as a ground of discrimination in most European states as recently as 2019.Footnote 50 The CRC Committee’s General Comments only mention intersex status in 2016, where it called for states to eliminate all discriminatory practices affecting lesbian, gay, bisexual, transgender, and intersex children.Footnote 51 Although it has not listed intersex status as a separate ground of discrimination, the CRC Committee has expressed its concerns and made recommendations regarding the discriminatory treatment faced by intersex children in many of its concluding observations to states from 2015 onwards.Footnote 52 It does then include the discussion of intersex children rights under the “non–discrimination” section of its observations, grouped with lesbian, gay, bisexual, and transgender children.Footnote 53 Nevertheless, specific considerations of issues faced by intersex children are largely limited to the condemnation of IGM and non–consensual medical interventions.
Another way to include intersex status under existing prohibitions of discrimination is to include it under the umbrella of sex or eventually gender. It could then be argued that intersex children should be protected by the non–discrimination principle applied on these grounds. This allows reliance on the joint general comment of the CRC Committee and the UN Committee on the Elimination of all forms of Discrimination Against Women (CEDAW) which establishes the intersectionality of the non-discrimination principle applying on grounds of “sex, gender, age, and other grounds.”Footnote 54 The obligation to enforce non–discrimination based on sex or gender is clearly defined by Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW Convention), which is binding on 189 state parties.Footnote 55 While the vocabulary of the CEDAW Convention is strictly binary, the CEDAW has included intersex persons in its concluding observations.Footnote 56 As a parenthethis, it must be noted here that intersex persons may identify within binary gender and thus would be included under the vocabulary of the CEDAW in terms of their gender identity; the specific issues linked to their intersex status may still not be covered. It can thus be argued that intersex persons are understood to fall within the ambit of the protection against discrimination based on sex or gender as defined by the CEDAW. This protection must then be child–specific when considering the case of intersex children, in line with the CEDAW and CRC Committee’s joint comment.
This lack of recognition of intersex variations of sex characteristics or intersex status as an explicit prohibited ground of discrimination, or the lack of clear integration as part of the sex/gender prohibited grounds, creates uncertainty as to the extent of state obligations to effectively protect intersex children against discriminatory treatment. While it is easily argued that intersex status is implicitly part of international prohibition on discrimination, the lack of recognition gives way to more discretion in state practice. This is clearly seen in the absence of clear recognition of intersex status as a prohibited discrimination ground in most states, as well as the persistence of discriminatory practices against intersex persons, notably children, globally. This then translates into an absence of consideration of such discrimination and its consequences amounting to persecution for the purpose of the refugee status determination of intersex children. Moreover, when discrimination is not considered sufficient to amount to persecution in itself, it is fundamental that the discriminatory intent behind the treatment of intersex children be used to understand the rest of the harmful treatments they may face, raising the level of severity of such treatments accordingly.
II. Non-Consensual Medical Interventions and Genital Mutilation
The right to bodily integrity is particularly relevant for intersex children who are faced with attempts to “normalize” their bodies to fit within socially defined categories of male and female through medical treatment or surgery performed from birth to “correct” their bodies.
There is no clinical consensus about the necessity of such interventions on intersex bodies. Most surgeries forced on intersex children are thereby not medically necessary and non–urgent and largely only for socially motivated reasons.Footnote 57 It would thus be perfectly viable to refrain from intervening on the child’s body before they were old enough to express their own views on the matter. The effect on the child is severely damaging. One of the most invasive interventions performed on intersex children consists of surgical modification of the genitalia, internal or external, at birth—often referred to as intersex genital mutilation (IGM)—which demands regular interventions to monitor and pursue the “normalization” of their bodies carrying into late childhood, adolescence, and adulthood.Footnote 58 Testimonies of intersex persons highlight experiences of “permanent infertility/sterilization, incontinence, loss of sexual function and sensation and experiences tantamount to rape (such as dilatation, the repeated insertion of a device into a newly opened vaginal cavity) causing life–long pain and severe psychological suffering, including depression and shame.”Footnote 59 Such harm is repeated over time due to frequent subjection to follow–up treatments, additional surgeries, and hormonal treatments the child is then forced to pursue.Footnote 60 This violence is also fueled by the constant violation of the child’s privacy. Many intersex persons report having been subjected to invasive and non–necessary medical examinations and having been used repeatedly as a training subject by doctors.Footnote 61 Many intersex children report feeling ostracized from their peers and unable to connect with others due to the trauma they experienced. This in turns influences their ability to develop and enjoy their social and educational life.Footnote 62
Such interventions are often carried out without the informed consent legally required from parents or legal guardians.Footnote 63 Many report having felt pressured by medical professionals to consent to the procedures or not having been informed properly on what the intervention entailed.Footnote 64 Surgical interventions on intersex newborns are often presented to the parents as minor procedures necessary to the healthy development of their child.Footnote 65 Instances in which doctors have lied regarding the procedures they practice on the child are also commonly reported, leading to the complete absence of knowledge of the intersex status of the child to the parents.Footnote 66
Such practices must be considered severe violations of the right to bodily integrity. States have strong obligations to ensure that every person has the right to decide what happens to their body, and to refrain from interfering with the realization of this right. While it can be debated how and when children become able to autonomously decide what is best for themselves, their right to bodily integrity applies regardless of ability or autonomy. Following Article 12 of the UNCRC as well as its interpretation by the CRC Committee in its General Comment no. 12, the child should never be automatically deemed unable to meaningfully participate in decisions affecting them. However, considering that many surgical interventions are practiced on intersex infants, this ability to participate may be extremely limited. Thus, the discussion on the right to bodily autonomy of intersex children is one that is not further discussed in this part of the Article but will become more relevant when considering the right to identity and self-determination in the following part.
The right to bodily integrity is protected explicitly under Article 5(1) of the Inter-American Convention on Human Rights (IACHR)Footnote 67 and Article 4 of the African Charter on Human and People’s Rights (ACHPR),Footnote 68 and implicitly through the protection against ill–treatment, which de facto infringes on the physical and/or mental integrity of a person. To this end, the most established way in which bodily integrity has been implicitly protected is through the prohibition of torture and cruel, inhuman, and degrading treatment and punishment, which is strongly established by the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT),Footnote 69 as well as Article 7 of the International Covenant on Civil and Political Rights (ICCPR).Footnote 70 The Yogyakarta Principles, although not binding, also provide a legal basis for the right to bodily integrity within Principle 32.Footnote 71
This prohibition is also effectively established within regional systems such as Article 5(2) of the IACHR and Article 5 of the ACHPR. Notably, the European Court of Human Rights (ECtHR) has ruled on the legality of non–consensual medical interventions in two ways. First, under the right to privacy in Article 8 of the European Convention on Human Rights (ECHR), by finding violations where patients were not adequately informed of the health risks of a particular practice,Footnote 72 and where parental consent was not obtained, regardless of the good intent of the doctors.Footnote 73 Second, under the protection against ill treatment in Article 3 of the ECHR, by finding that involuntary or forced sterilization was a severe violation of a patient’s bodily integrity and autonomy when the procedure was not a life-saving necessity.Footnote 74 While none of these cases concerned intersex applicants, the findings can, and should, be analogically applied.
The right to bodily integrity is also upheld by the state obligation to protect the child against all forms of violence, notably harmful practices, enshrined in Article 19 of the UNCRC, and further developed in the CRC Committee’s General Comment 13.Footnote 75 This protection is particularly important in the present case as it establishes the special vulnerability of children as a central point to be considered when determining whether a treatment reaches the threshold of severity to be considered torture or cruel, inhuman, or degrading treatment and thus effectively be recognized as a prohibited harmful practice. Nevertheless, concrete inclusion of intersex children under the right to bodily integrity in the works of UN treaty bodies is mostly limited to national considerations within concluding observations,Footnote 76 although some more general points can be found in reports by special rapporteurs,Footnote 77 as well as the resolution of the Human Rights Council.Footnote 78
To link it to a more global obligation, a connection can be drawn between IGM and Female Genital Mutilation (FGM) as well as Male Genital Mutilation (MGM).Footnote 79 The consequences of both harmful practices on the child are similar and equally reprehensible, although it must be acknowledged that the intent behind both procedures may differ, and the normalization of intersex bodies serves the deeply discriminatory purpose of denying and erasing one’s identity. However, unlike IGM or MGM, FGM has received repeated attention from UN treaty bodies and international courts. In this context, the CRC Committee jointly with the CEDAW have established female genital mutilation as one of the most evident violations of children’s right to be free from violence.Footnote 80 It has also been defined as reaching the level of torture, cruel, inhuman, and degrading treatment and/or as prohibited treatment by many courts and bodies including the CEDAW,Footnote 81 the CRC Committee,Footnote 82 the UN Human Rights Committee,Footnote 83 and the ECtHR,Footnote 84 as well as national courts.Footnote 85 FGM is also recognized by the UNHCR as a form of child–specific persecution which can give rise to an admissible claim for asylum.Footnote 86
IGM lacks equivalent recognition as a rights violation by courts.Footnote 87 However, a recent admissibility decision of the ECtHR on this pointed at the possibility of positive change to this end. While the ECtHR refrained from considering the merits of the M v. France case due to an alleged lack of exhaustion of domestic remedies, it did provide a few clarifications on its interpretation of the prohibition of torture and cruel, inhuman, and degrading treatment in relation to IGM. In its decision, the Court highlighted that “an act of a medical nature carried out without therapeutic necessity, and without the informed consent of the person subjected to it, is likely to constitute ill–treatment;” thus, the medical necessity of such act must be “convincingly demonstrated.”Footnote 88 Therefore, the Court concluded that “the sterilization of a person without therapeutic purpose and without informed consent is thus, in principle, incompatible with respect for human freedom and dignity and constitutes treatment contrary to Article 3…. The same applies to genital mutilations, notably when performed on a child.”Footnote 89 While this decision does not create a strong binding precedent, it does suggest that, should an admissible case be presented to this Court, its decision would follow a similar approach.
The Council of Europe underlined in its most recent recommendation that intersex persons should be protected under national refugee law, and that states should refrain from sending intersex asylum seekers to a country where they would face violations of their bodily integrity.Footnote 90 This is a first movement towards the recognition of IGM and the general violations of bodily integrity suffered by intersex children when considering their standing for refugee status. Indeed, the formal recognition of such forms of violence as violations of the prohibition of torture and cruel, inhuman, and degrading treatment is a strong step in establishing their relevance in defining persecution for the purpose of obtaining refugee status under Article 1(A) of the Refugee Convention. Although this absence of formal recognition does not preclude national decision makers from considering violations of bodily integrity on intersex children as giving rise to a need for protection, it introduces a high level of discretion. This in turn creates a lack of foreseeability for intersex children regarding their ability to avail themselves of refugee protection.
III. Legal Registration and Recognition of Sex or Gender
The last point to mention regarding harm faced by intersex children that may amount to persecution for the purpose of asylum is the denial of adequate birth registration.
The birth registration of intersex children can be rendered difficult by legal requirements that the child undergoes so–called normalizing surgeries to fit within the binary genders recognized by the state.Footnote 91 The lack of registration can also be the consequence of the parents’ attempt to hide their intersex child. Currently, some states allow for the registration of the sex to be delayed at birth when the sex of the child cannot be determined. Nevertheless, this remains a temporary measure, and the sex of the child must be registered within the binary soon after. Intersex organizations highlight that, although better than forced assignment at birth, such procedures may also push parents to consent to surgical interventions due to the short delay provided before a decision must be made simply allowing doctors time to decide on the ways in which the child should be “normalized.”Footnote 92 Malta is currently the only country that offers the registration of sex to be postponed until the child turns 18 years old.Footnote 93
Moreover, it must be noted that a substantial number of intersex persons end up rejecting the sex they were assigned at birth.Footnote 94 However, modifying the sex/gender marker on one’s identity documents is often hard, if possible at all. Globally, only eighteen countries have rights-based legal gender recognition procedures; twenty-two still require individuals to have surgery and sterilization before accessing legal gender recognition and thirty-nine require expert testimonies and witnesses.Footnote 95 Very few countries offer the possibility to register sex/gender outside of the male/female binary.
This absence of adequate procedures to register the child’s gender at birth and in later years must be considered as reaching the threshold for ill–treatment leading to the recognition of persecution, notably when this registration creates a risk of exposure to harmful medical interventions or to discrimination and ostracization by family, peers, and society at large. Article 8 of the UNCRC entails a state obligation to respect and preserve a child’s identity, including their sex/gender.Footnote 96 This provision creates an obligation for states to “provide appropriate assistance and protection” to the child “with a view of speedily re-establishing” their identity where the child has been deprived of any aspects of said identity.Footnote 97 This implies a right of intersex children not to be registered with a binary gender at birth, in addition to the right to be registered altogether, as well as a right to have their registration amended either to a non-binary marker or to the binary marker chosen by the child once they are able to articulate such views.
Moreover, the state obligation to protect the child against ill–treatment can arguably give rise to a state obligation to provide accurate sex registration for intersex children at birth. Indeed, the requirement to register an intersex child with a binary gender immediately, or within a short period after birth, creates a pressure on parents to have their child fit within said categories. In turn, they will be more likely to give way to medical professionals’ proposals to intervene on the child’s body in order to make them fit within one of the binary categories.Footnote 98 This is particularly enhanced in states where the procedure to change one’s gender marker later on is complex or altogether unavailable. Only a few states provide the option for persons to be registered under a non–binary gender marker.Footnote 99 In recent years, the ECtHR shied away from creating such an obligation, notably in its decision in the case of Y v. France.Footnote 100 This decision appears to be blatantly in violation of state obligations to protect intersex persons against violations of their right to bodily integrity and has been defined by intersex organizations as implicit support and advocacy for the “normalization” of intersex bodies to fit unnatural and socially constructed categories of gender.Footnote 101 Conversely, the Inter–American Court of Human Rights (IACtHR) has clearly stated that the right to adequate legal gender recognition, including outside of the binary, is a fundamental right necessary for the enjoyment of all other rights.Footnote 102
The assignment of sex to a child should be understood as a state obligation to consider the circumstances of the case and the wishes of the parents, while allowing for a possibility for the child to have such mention rectified once they are able to form a view on the matter. Another acceptable avenue for states to fulfill their obligation in that regard is to refrain from registering the child’s sex until the child is mature enough to participate in the decision–making process. This is largely supported by states’ obligations under Articles 3 and 12 of the UNCRC which safeguard the right of the child to have their best interests considered as well as their right to meaningfully participate in all matters affecting them.
Bringing together all three points considered in this chapter as potential grounds to define ill–treatment of intersex children as amounting to persecution for the purpose of refugee status determination, it is fundamental to remember that forms of harm can be considered cumulatively to reach the threshold of severity required to qualify as persecution. Therefore, it is crucial that decision makers consider the holistic situation of the child and do not limit their considerations to IGM but rather understand the larger framework of systemic discrimination, which creates unlivable conditions for intersex children in their country of origin.
D. Defining Intersex Children as a Particular Social Group (PSG)
Having established how severe violations of intersex children’s rights amount to persecution, it is then essential to consider how intersex children may qualify as a particular social group in the sense of the Refugee Convention. While intersex children may qualify for asylum on any of the five grounds provided by the Convention, membership to a particular social group is the one most likely to arise when the application for protection relates to a risk of persecution due to their intersex status. In practice, intersex persons have had a hard time proving they qualify under the PSG ground due to the absence of established precedent.Footnote 103 This means that every individual applicant bears the burden of evidencing how intersex persons, or children specifically, constitute a PSG in their country of origin.Footnote 104 In turn, this often translates into the inability of intersex persons to obtain refugee status under the Convention and to only be granted a form of subsidiary protection. Subsidiary protection refers to a separate regime of international protection largely based on the human rights obligation of states not to send a person back to a place where they would face severe violations of their basic human rights (“non refoulement” principle). Subsidiary protection most often does not provide for a similar level of rights and protection as refugee status.
In its Guidelines on International Protection No. 9, the UNHCR confirms that intersex persons as a whole should be included under the PSG ground.Footnote 105 However, this short mention still must find support in case law and binding regulations. Moreover, this does not consider the specific PSG that intersex children may constitute. As established previously, intersex children face human rights violations that are specifically linked to their status as children, notably the risk of genital mutilation and non–consensual medical interventions. This notably differentiates the nature of their claim from that of intersex adults.
The UNHCR established two ways in which a PSG can be defined: Either the group shares a “common characteristic other than their risk of being persecuted”—the common characteristic test—or is “perceived as a group by society”—the social perception test. It can be argued that intersex children constitute a PSG under both of these tests.
In virtue of their intersex status, intersex children share a common characteristic. A similar approach has been endorsed by the UNHCR and multiple courts in recognizing sexual orientation or gender identity as a common characteristic relevant in defining a particular social group.Footnote 106 To this end, there has been significant recognition of gay, lesbian, and bisexual persons as constituting PSGs, as well as women,Footnote 107 and to some extent transgender persons.Footnote 108 Moreover, following the reasoning of Jason Pobjoy, children should constitute a PSG because, although age changes over time, it constitutes a defining characteristic from which the child cannot detach themselves. Pobjoy further argues that sub-categories of children who share both the common characteristic of being children as well as an additional common background, such as having a intersex variations of sex characteristics, should be recognized as separate PSGs as well.Footnote 109 This is also the approach of the European Asylum Support Office which points to the possibility of recognizing girls who are victims or at risk of FGM as a particular social group defined by their age, their gender, and their common background of refusing or having undergone FGM.Footnote 110 This approach finds support in the recent decision of the Court of Justice of the European Union (CJEU), which officially recognized women, as well as women sharing an additional common background, as constituting PSGs for the purpose of granting refugee status.Footnote 111 Interestingly for our case, in defining women as a PSG, the CJEU established that states must consider the ways in which “gender identity may be related to certain legal traditions and customs, resulting in for example genital mutilation [or] forced sterilization.”Footnote 112 The reference to genital mutilation and forced sterilization can be extended to support the claim of intersex children at risk of IGM or non–consensual violations of their bodily integrity as a PSG. Another group could be constituted of intersex children whose common background lies in the absence of birth registration or the wrongful registration of their gender. This points to the possibility for intersex children as a group to be awarded effective status as a PSG for the purpose of their eligibility for refugee status.
Then, it may be possible to argue that intersex children constitute a PSG following the “social perception test.” Indeed, in some societies, intersex children may be perceived by the surrounding society as a separate group of children. This can be due to the way they express their gender identity or the way their bodies appear to the external observer due to their intersex status. They may then be marked as gender non–conforming children. Other societies may consider them as bringing “bad luck” or associate them with witchcraft.Footnote 113 However, the social perception test may be complicated to meet in places where the status of intersex children is widely taboo or unknown of the general society. This creates a serious obstacle for the qualification of intersex children as a PSG in systems which require a cumulative approach to the two tests such as in the EU.Footnote 114 Such an approach is not in line with the approach of the UNHCR and should be revoked or, at the very least, sensibly applied to the case of intersex children. Additionally, while this is the approach taken by the CJEU in its jurisprudence, it can be argued that such a cumulative approach is not compatible with the EU’s own approach. Indeed, EU law states explicitly that the Qualification Directive—and thus the current Qualification Regulation—must be interpreted “in a manner consistent with the Geneva [Refugee] Convention.”Footnote 115 Moreover, the case of X, Y, and Z, v. Minister voor Imigratie en Asiel of the CJEU calls for an “either or” approach to the tests applied to define particular social groups. Thus, in line with this, the legal standing of the Qualification Regulation requirement could be challenged. This has yet to be done in practice, and to be applied in the Court’s case law.Footnote 116
Altogether, the recognition of intersex children as a PSG is largely in line with the requirements of the UNHCR to this extent. Binding recognition in court judgments or official guidelines of the UNHCR is crucial to ensure the stability of access to refugee protection for intersex children by diminishing the individual burden placed on them to prove this ground themselves as well as limiting the discretion of decision makers. This recognition follows naturally from the recognition of the human rights violations, exposed previously, as amounting to persecution for the purpose of granting refugee status.
Nevertheless, it is fundamental to highlight that the word intersex is not often, if ever, used on official documents by medical practitioners. Similarly, asylum officers are not trained to establish the link between medical diagnosis and intersex status. Therefore, it may be that even if intersex children are recognized as a PSG and asylum decision makers are aware of this, they may still suffer from the inability of decision makers to connect the dots. Thus, the effective recognition of intersex children as a PSG must be accompanied by the comprehensive training of decision makers as to what intersex means in practice rather than put the burden entirely on the applicant to make the connection between their medical condition and the word recognized by the asylum framework. This is particularly relevant to the case of children who cannot be expected to be as knowledgeable about the specific vocabulary expected by decision makers within the asylum framework.
E. Discussion: An Area in Need of International Accountability
Although the arguments presented in this Article only pertain to the interpretation of existing state obligations rather than the creation of a new framework, there is still significant work to be done in achieving such interpretation. From the perspective of the CRC Committee, it is regrettable that the only concrete recommendations made concerning the protection of intersex children pertain to concluding observations which are specifically aimed at one state and therefore do not gain influence past the territory of that state. In this sense, the UNCRC’s framework would be strengthened by the publication of a general comment focusing on the interpretation of the UNCRC rights for intersex children and LGBTQI+ children more broadly. This would bring the CRC Committee’s already existing position on intersex children’s rights to the international scale and ensure a harmonious and stable framework for intersex children to rely on wherever they may find themselves. A similar observation can be made concerning the UNHCR’s framework which places little emphasis on the rights of LGBTQI+ children seeking international protection, let alone intersex children. An international guideline focusing on this group would therefore be equally beneficial in ensuring the coherent development of state practices globally. The existence of such guidance would then be helpful in bringing strong strategic litigation cases to regional and national courts to build a binding jurisprudence. To this end, it is welcome to see the Office for the High Commissioner on Human Rights following up on the effective implementation of Resolution 55/14 on “combating discrimination, violence and harmful practices against intersex persons” with a report on implementation currently in the drafting stages.Footnote 117 However, neither this call for input nor the resolution itself mentions asylum and refugee protection for intersex persons, let alone intersex children.
The development of a protective legal framework for intersex children seeking asylum will only be viable in practice if accompanied by a serious cooperative effort of state bodies to gather reliable and representative country-specific information regarding the situation of intersex children in all countries. Indeed, practical decisions on claims are always based on the specific risks faced in the country of origin of the applicant. It is thus fundamental that states actively investigate such violations to be properly informed in the assessment of intersex childrens’ claims. And, where such information is not available to the decision maker, no negative inference should be drawn as to the absence of risk for the child.
The work on developing a clear and foreseeable protective framework for intersex children seeking asylum must also radiate outside of the field of refugee law. In this sense, it is fundamental that international legal bodies work towards the de-pathologization of intersex status and the active protection of intersex children in all contexts and in all places. The World Health Organization (WHO) still categorizes intersex status as a pathology under the header of “malformative disorders of sex development.”Footnote 118 In line with this classification, the European Association of Pediatrics subscribes to a consensus statement on the treatment of intersex children which requires the systematic gender assignment of intersex children.Footnote 119 This pathologization of intersex children creates the way for further medicalization of their bodies and is highly detrimental to the healthy development of intersex children.Footnote 120 While this remains the dominant approach to intersex bodies, it will be drastically harder to create pathways to protect the rights of intersex children in all contexts, including when they seek asylum. This is flagrant in the report of intersex children being mutilated in the country of reception to facilitate return.Footnote 121 The de–pathologization of intersex status is therefore fundamental to creating a safe reception environment for intersex children which also permits them to access healthcare without being pushed into the hands of medical professionals who will advise and perform non-consensual “normalizing” procedures.
As a general point, a crucial part of addressing the protection of intersex children seeking asylum also lies in effective and adequate training of all persons who will come into contact with the child at all points of their journey. This must therefore include asylum officers making decisions on their application as well as those handling their reception, translators, guardians, all medical staff within reception centers as well as within the general health sector, et cetera. Such training must be comprehensive and avoid a pathologizing approach to intersex which leaves significant space for the voice of the child in line with Article 12 of the UNCRC.
F. Conclusion
This Article has argued for the eligibility of intersex children for asylum based on the gravity of the harm they face—discrimination, violation of bodily integrity, and lack or difficulty of accurate registration of gender—and their vulnerability as a particular social group. To do so, it puts forwards a child rights–based approach to this issue, highlighting numerous obligations of states under international and regional human rights law.
Within the general analysis proposed by this Article, some more concrete changes required to bring about adequate protection can be underlined. Many pertain to the development of better practices within the asylum qualification procedure. Notably, the situation of intersex children claiming asylum would be significantly improved by a systematic application of the “benefit of the doubt” principle in line with the UNHCR and CRC Committee guidance when documentary evidence is unavailable. This should go hand in hand with the presumption of credibility in the absence of contradictory evidence when intersex children, or their guardians, present a plausible and consistent account. Then, the assessment of their claims should be facilitated by the admission of expert evidence such as psychologist and medical reports, as well as human rights experts and intersex advocacy organizations. Such evidence should not only be accepted but actively sought out by the government in effectively taking on a larger part of the burden of proof as required in children’s cases in line with the UNHCR and CRC Committee guidelines. As part of this, states should equally ensure that they gather and integrate information on the treatment of intersex children in their countries of origin, including the prevalence of medical practices, legal recognition procedures, and patterns of social exclusion or violence. Finally, this sensibility to intersex issues should effectively disperse information to all professionals involved in such cases through training and information–sharing, including to judges, asylum officers, lawyers, reception staff and social support staff, translators, guardians, medical staff, et cetera. Such training should be particularly sensitive to the invisibility of the persecution of intersex persons within mainstream LGBTQI+ discourse.
Altogether, this Article argues for the urgent recognition of the protection needs of intersex children whose asylum claims are left invisible both in practice and in academia. While strategic litigation and local initiatives are slowly working to bring about more effective routes for protection and binding court decisions, much more remains to be achieved. To this end, this Article argues that recognizing intersex children as effectively able to access refugee protection is not merely a matter of procedural fairness, but a clear test of whether states are willing to honor the most fundamental promise of human rights law and international children’s rights: That no child should be left unprotected in the face of persecution.
Acknowledgements
I would like to express my gratitude to my supervisors in this project, Dr Mark Klaassen, Prof. Mr Dr Drs Mirjam Sombroek-van Doorm and Prof. Dr Mr Ton Liefaard for their valuable guidance, as well as the editors of this special edition for the opportunity to participate.
Competing Interests
The author declares none.
Funding Statement
This research was funded by Leiden University as part of the author’s PhD thesis.
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