By Nikoletta Pikramenou*
Prohibition of intersex genital mutilation (IGM) procedures
on intersex children
Articles 17 to 20 in Law 4958/2022
On the 19th of July 2022, the Greek Parliament passed (almost unanimously) articles 17 to 20 of the Law 4958, which prohibit IGM procedures and other medical treatments, fullfiling a core demand of the Greek and global intersex community for the protection of the bodily integrity and self-determination of intersex children. This demand – which is clearly a human rights issue – was first raised in the 1990s, when the first intersex people who had undergone such procedures as children had reached adulthood and began to publicly complain about what had happened to them without their consent. To date, hundreds of thousands of intersex children in the world have undergone such procedures and have grown up with the secrecy, taboo, shame and stigma surrounding them, and the resulting negative effects on their health. The first law banning such procedures was passed in 2014 in Malta. Then Portugal, Germany, Iceland and now Greece followed with similar laws.
The aim of this paper is to present Articles 17 to 20 with brief explanatory analyses so that they can be better understood and used to support the rights of intersex children.
PART C’ CHANGE OF SEX CHARACTERISTICS OF INTERSEX MINORSDownload the Law 4958/2022
Conditions for the change of sex characterstics of intersex minors
- An intersex minor who has reached the age of fifteen (15) years may undergo medical procedures and treatments, such as surgical or hormonal, for the total or partial change of sex characteristics, i.e. chromosomes, genital and anatomical characteristics of the person, including primary characteristics such as reproductive organs and secondary characteristics such as muscle mass, breast development or hair growth, in accordance with para. 2 of Article 2 of the Law No. 4491/2017 (A’152), only with the free and informed consent of the individual and of the persons exercising parental care or guardianship, according to sub-para. aa) of para. b) of para. 2 of article 12 of the Law 3418/2005 (A’ 287), on the conditions for the provision of valid consent of a minor patient for the performance of medical procedures on them by a doctor.
* Intersex is an umbrella term used internationally to describe the wide spectrum of natural diversity of sex characteristics. Intersex (in Greek: ίντερσεξ or διαφυλικό (diafiliko)) individuals are born with sex characteristics that are either female and male at the same time, or not completely female or male, or neither female nor male. The term ‘intersex’ (in Greek: ίντερσεξ) is preferred by the Greek intersex community over the term ‘diafiliko’ (διαφυλικό) as there is no confusion with the term ‘diemfiliko’ (διεμφυλικό) which is used for trans people.
* Law 4491/2017 on the Legal Recognition of Gender Identity concerns primarily trans people. However, Art. 2 on sex characteristics exists as the text of the Draft Law also included Article 7 which was banning the performance of surgeries on intersex minors. Nonetheless, Article 7 disappeared when the Draft Law was delivered to the Ministry of Justice by the Legislative Committee and it never reached the Parliament for vote.
* An intersex minor may undergo medical operations and treatments only with their free and informed consent. Regarding the consent of a minor, the provision refers to Law 3418/2005 where according to sub-paragraph ‘aa) If the patient is a minor, consent shall be given by those who exercise parental care or guardianship. However, their opinion shall also be taken into account if, in the opinion of the doctor, the minor has the age, mental and emotional maturity to understand their state of health, the content of the medical act and the consequences or effects or risks of that act’.
In addition, the Convention on the Rights of the Child (CRC) recognises the participation of children in decision-making and specifically under Article 12, children should have the right to express their views freely on any matter concerning them, taking into account their views in accordance with their age and degree of maturity. The Committee on the Rights of the Child in its General Comment No. 20, stresses that all children who are capable of demonstrating sufficient understanding should give voluntary and informed consent to any medical treatment or procedure, whether or not parental or guardian consent is required.
- An intersex minor who has not completed the fifteenth (15th) year of their age may undergo the medical procedures and treatments of para.1, only after permission, which is granted with the decision of the County Court of the minor’s place of residence. The court decides following a non-contentious proceeding and its decision is not subject to appeal. The hearing procedure is conducted behind closed doors. The permission is granted by the court following: a) the opinion of the interdisciplinary committee of article 18, which is freely evaluated by the court, b) the personal hearing of a representative of the interdisciplinary committee of article 18 and c) the personal hearing of the minor by the judge, in compliance with the terms of sub-para. aa) of para. b) of para. 2 of article 12 of the Law 3418/2005 (A΄ 287). The permission can only be granted for medical procedures or treatments that cannot be postponed until the minor reaches the age of fifteen (15) and do not cause other future, irreversible or significant complications to the health of the minor. Exceptionally, the permission is not required, when the medical procedure or treatment is necessary to prevent a risk to the life or health of the minor, within the meaning of paragraphs a) and c) of para. 3 of article 12 of the Law 3418/2005 and cannot be postponed until the court’s decision is issued.
* If the intersex minor is under 15 years of age, medical procedures and treatments are prohibited. However, if permission has been granted by the County Court, medical acts are allowed. The permission is granted only for medical procedures and treatments that cannot be postponed and provided that they will not cause future and irreversible complications to the minor’s health. The County Court follows a non-contentious proceeding according to which the court may, without the existence of a pre-existing dispute, grant judicial protection for the purpose of safeguarding or protecting the interest of the intersex minor and therefore, the permission granted by the court is not subject to appeal. The hearing is held behind closed doors to protect the privacy of the intersex child. For the permission to be granted the following are required:
- α) An opinion of a multidisciplinary committee (see next article 18)
- b) A hearing of the representative of the interdisciplinary committee
- c) A hearing of the intersex child by the judge: at the hearing the provisions on free and informed consent are again applied as already mentioned in Article 17 above.
* The permission is not required when the medical procedure or treatment is necessary to prevent a risk to the life or health of the minor within the meaning of Law 3418/2005:
“3. In exceptional cases, consent is not required:
(a) in urgent cases, in which appropriate consent cannot be obtained and there is an immediate, absolute and urgent need for medical care
(c) where the parents of a minor patient or the relatives of a patient who cannot for any reason consent or other third parties who have the power of consent for the patient refuse to give the necessary consent and there is a need for immediate intervention in order to prevent a risk to the life or health of the patient”.
An interdisciplinary committee is established for the issuance of the opinion of para. 2 of article 17, which consists, at least, of one (1) doctor with experience in operations on intersex individuals or any interventions of normalisation of sex characteristics in the field of Disorders of Sex Development (DSD), one (1) legal expert with expertise in bioethics, one (1) psychologist, preferably with experience in issues of sex characteristics, one (1) social worker with experience in issues of sex characteristics issues and one (1) representative of the intersex civil society with similar expertise.
* The interdisciplinary committee consists of:
- 1 doctor with experience in operations on intersex individuals or any interventions of normalisation of sex characteristics, or as they are called in the medical community “Disorders of Sex Development (DSD)” or “Congenital Anomalies”. These medical terms are stigmatising and often unjustifiably pathologise intersex bodies, but they were used in the text to clarify the interventions to which the law refers to and to avoid confusion with gender confirmation procedures carried out on trans people following their informed consent.
- 1 legal expert with expertise in bioethics.
- 1 psychologist with expertise in issues that intersex people are experiencing.
- 1 social worker with expertise in issues that intersex people are experiencing.
- 1 representative of the intersex civil society with relevant expertise in issues that intersex people are encountering.
Amendment of registered gender
In the event of the performance of medical procedures or treatments of Article 17, which have resulted in a discrepancy with the registered gender of the intersex minor, the registered gender is amended by the competent court.
* In the case that medical operations are performed and result in a discrepancy between the gender of the intersex person and the already registered gender, there is the possibility of amending the registered gender by court decision. It is worth noting that in Greece the genders on birth certificates and identity documents are two, “female” and “male”. Therefore, intersex persons are not yet legally able to identify as they wish if their gender does not comply with the female/male binary. In other countries in Europe such as Germany and Austria and in the world such as Australia, intersex people have the option to self-identify outside the binary using “diverse”, “X”, “other”. So far, in Greece there are no similar legal developments.
Doctors who perform medical procedures or treatments to minor intersex persons in violation of the article 17, in addition to the foreseen disciplinary and administrative sanctions, are punished with a prison sentence of at least six (6) months and a fine. The repeated performance of the act of the first paragraph constitutes an aggravating circumstance. In any case and regardless of the amount of the imposed penalty, the guilty is mandatorily punished with the additional penalty of Article 65 of the Criminal Code (Law 4619/2019, A΄ 95), on the prohibition to practice the profession.
* Doctors who perform medical procedures or treatments on intersex minors without the permission of Article 17.2 will be punished with:
- Disciplinary and administrative sanctions
- Imprisonment of at least six months
- A fine
In any case, regardless of the penalty imposed by the competent court, doctors who perform medical acts without a permission will be banned from practicing medicine in accordance with the Criminal Code:
Article 65 – Prohibition to practice the profession
- If the perpetrator has committed a crime involving a serious breach of the duties of his profession, for the exercise of which a special permission issued by the authority is required, and if he has been sentenced to a custodial sentence of at least two years, the court may prohibit him from practicing his profession for a period of one month to two years.
- The prohibition to practice the profession shall commence as soon as the judgment becomes final and its duration, if the offender is in custody, shall be calculated from the day following the day on which he is released from prison.
*Legal analysis: Dr Nikoletta Pikramenou, legal expert & researcher on intersex rights, member of Intersex Greece
Editing: Coordination Committee of Intersex Greece
The original text was published in Greek and then translated to English by the members of Intersex Greece.
. In the Greek medical community the natural variations of sex characteristics are nowadays referred to using various pathologising terms such as “Disorders of Sex Development (DSD)”, “Disorders of Sexual Development”, “Sex Differentiation Disorders”, “Congenital Anomalies”, “Amphisimic/Differentiated Genitalia”, “True/False Hermaphroditism”, etc.