Realising Gender Recognition: Rendering the Vulnerable Visible or Further Vulnerabilising the Invisible?

Abstract

This paper aims to examine laws categorisation of bodies with a particular focus on the intersex body. Historically, the law recognised the existence of intersex people and permitted them to self select the manner in which they interacted with the law. In the nineteenth century, a shift towards legal recognition of bodies as either male or female is apparent. Concurrently, advances in medical knowledge began to ‘disappear’ intersex people from social and legal consciousness. In modern times, intersex is considered to be a medical condition and often, irreversible medical and/or surgical interventions are performed on very young children to reconstruct their bodies along apparently male or female lines.

The paper questions whether law contributes to the invisibility of intersex. In particular, it asks whether legal recognition of intersex would enable the creation of space to facilitate the postponement of surgery until the intersex person could participate in the decision whether to undergo surgery or not. Alternatively, it considers whether legal recognition is perfunctory to the point of purposelessness. Finally, the paper investigates whether adopting a vulnerability approach to the question of legal recognition of intersex might produce a framework for legal recognition which acknowledges the lived experience of intersex people and respect their inherent human dignity.