Intersex rights in Chile

Intersex rights in Chile Chile
Protection of physical integrity and bodily autonomy No
Reparations One legal case
Protection from discrimination Pending
Access to identification documents Yes
Changing M/F sex classifications Yes
Third gender or sex classifications Yes

Between December 2015 and August 2016, the Chilean Ministry of Health issued a regulatory suspension of non-necessary cosmetic medical interventions on intersex children. The guidelines were replaced by guidance permitting intersex medical interventions.

History

In 2015, Chile briefly became the second country to protect intersex infants and children from unnecessary medical interventions, following Malta,[1] however, the regulations were superseded the following year.[2] Chile also has an early example of legal reparations, awarded in the Benjamín-Maricarmen case in 2012.

In April 2018, Latin American and Caribbean intersex activists published the San José de Costa Rica statement, defining local demands.[3]

Physical integrity and bodily autonomy

  Legal prohibition of non-consensual medical interventions
  Regulatory suspension of non-consensual medical interventions

In 2015, the UN Committee on the Rights of the Child recommended that Chile recognize the rights of Chilean intersex children, and expressed concern "about cases of medically unnecessary and irreversible surgery and other treatment on intersex children":[4]

49. In the light of its general comment No. 18 (2014) on harmful practices, adopted jointly with the Committee on the Elimination of Discrimination against Women, the Committee recommends that the State party expedite the development and implementation of a rights-based health-care protocol for intersex children that sets the procedures and steps to be followed by health teams in order to ensure that no one is subjected to unnecessary surgery or treatment during infancy or childhood, protect the rights of the children concerned to physical and mental integrity, autonomy and self-determination, provide intersex children and their families with adequate counselling and support, including from peers, and ensure effective remedy for victims, including redress and compensation.[4]

In January 2016, the Ministry of Health of Chile ordered the suspension of unnecessary normalization treatments for intersex children, including irreversible surgery, until they reach an age when they can make decisions on their own.[5][6]

The instructions were published in Circular 8, 22 December 2015, entitled "Instructions on aspects of health care to intersex children". The circular instructs the ceasing of "unnecessary "normalization" treatment of intersex children, including irreversible genital surgeries, until they are old enough to decide about their bodies", while work takes place to develop protocols that meet human rights standards.[2] The country became the second in the world to protect intersex children from harmful practices, after Malta.

However, the 2015 circular was superseded by Circular 7 of 23 August 2016, which states that the earlier recommendation not to perform unnecessary genital surgeries does not apply to "pathologies" where sex can be clearly determined.[7] It also does not apply in cases of congenital adrenal hyperplasia when professionals or the patient deem surgery necessary, and where a patient or their representative (such as a parent) consents. In cases where either sex may be assigned, sex assignment and surgeries may be made by agreement between parents and multidisciplinary teams, also considering the possibility of deferring surgeries to a time when a child has manifested a sexual identity.[7] The guidelines are based on a 2006 clinical consensus document.[8] Brújula Intersexual describes the circular as permitting interventions without supporting long-term data, and ignoring testimonies of persons subjected to early interventions.[9][10][11]

In July 2018, the UN Committee on the Elimination of Discrimination against Women issued concluding observations on harmful practices, recommending that Chile "explicitly prohibiting the performance of unnecessary surgical or other medical treatment on intersex children until they reach an age when they can give their free, prior and informed consent". The Committee also called for the provision of counselling and support to families, and education to medical professionals.[12]

Reparations

Benjamín-Maricarmen case

In 1993, a baby with "ambiguous genitalia" named Maricarmen, suffered an irreversible surgical intervention. It was determined by the child's medical team that the she would be raised as a girl, and her gonads and male reproductive system were removed. The parents were informed that the child had inguinal hernias. At the age of 10, in 2003, Maricarmen was to start hormone replacement therapy. In connection with this, blood tests were conducted, and these confirmed that the child's chromosomal sex was 46,XY, male.[13] The ten-year old immediately transitioned, becoming Benjamín. Changing official documents took several years and required him to go through psychiatric and physical examinations.[13]

On August 12, 2005, the mother filed a lawsuit against the Maule Health Service. The claim for damages was initiated in the Fourth Court of Letters of Talca, but ended up in the Supreme Court of Chile. On November 14, 2012, the Court sentenced the Maule Health Service for "lack of service" and to pay compensation of 100 million pesos for moral and psychological damages caused to Benjamín, and another 5 million for each of the parents. The ruling states that the hospital should have had exams that would allow the parents and the victim to "decide about the removal of these organs and the condition of man or woman with which they would face life and society."[13][14]

Protection from discrimination

  Explicit protection from discrimination on grounds of sex characteristics
  Explicit protection on grounds of intersex status
  Explicit protection on grounds of intersex within attribute of sex

Bill on "System of Guarantees of Rights of the Childhood," includes protection from discrimination on grounds of sex characteristics and recognize the right to children and adolescents to develop their gender identity. The Bill seeks to adapt Chilean legislation to the Convention on the Rights of the Child.[15]

On 31 August 2016, the Family Committee of the Chamber of Deputies approved these protections.[16] On 2 May 2017, the plenary session of the Chamber of Deputies approved the bill including LGBTI categories. The bill now heads to the Senate for discussion.[17]

Article 9 of the bill states that "no child shall be arbitrarily discriminated against because of their sexual orientation, gender identity, gender expression and sex characteristics," among other distinctions.[17]

Article 19 based on "Identity" states that "every child has the right, from birth, to have a name, a nationality and a language of origin; to know the identity of their fathers and/or mothers; to preserve their family relations in accordance with the law; to know and practice the culture of their place of origin and, in general, to preserve and develop their own identity and idiosyncrasy, including their gender identity."[17]

In April 2017, the Ministry for Education introduced a document entitled "Guidelines for Inclusion of lesbian, gay, bisexual, trans and intersex people in the Chilean educational system," aiming to promote inclusion and safeguard equality and non-discrimination. It considers suggestions to safeguard the rights of LGTBI children and adolescents in educational contexts; actions to support them in case they do not have the support of their families and learning objectives to address this issue.[18]

Identification documents

  Nonbinary / third gender available as voluntary opt-in
  Opt-in for intersex people only
  Mandatory for some born intersex, and opt in
  Mandatory for some born intersex
  Nonbinary / third gender not legally recognized / no data

Birth certificates are available at birth showing "indeterminate" sex if it is not possible to assign a sex. According to the Civil Registry, between 2006 and 2017, 269 intersex children have been registered under the category of "indeterminate sex" on official records. The rectification must be requested through the courts when the biological sex is determined.[19][20]

In Chile there are two public policies based on the antidiscrimination law that are, in some way, designed to protect intersex people.

On June 14, 2012, the Ministry of Health issued Circular 21 titled "Reiterates instruction on the care of trans people in the health care network". The document stipulates the reiteration to the health services the duty of officials to respect gender identity and the social name of trans and intersex people, with emphasis on primary health care. It points out that intersex people, in comparison with trans people, "may also manifest a similar situation, when genital sex does not correspond to the gender identity that the person is developing."[21]

On November 9, 2012, the Legal Medical Service, under the Ministry of Justice, issued Circular 1297 that instructs compliance with the "Expert Technical Guide of Forensic Sexology for trans and intersex cases." It is intended to safeguard the physical and mental integrity of people, especially ensuring the protection of dignity. The protocol mentions that trans and intersex persons will not be subjected to invasive expert reports, in addition they must be treated by their social name or the one that the person prefers.[22]

See also

References

  1. ↑ Cabral, Mauro (8 April 2015). "Making depathologization a matter of law. A comment from GATE on the Maltese Act on Gender Identity, Gender Expression and Sex Characteristics". Global Action for Trans Equality. Archived from the original on 4 July 2015. Retrieved 3 July 2015.
  2. 1 2 "Circular 08, 22.12.15 Instruye Sobre Ciertos Aspectos de la atencion de Salud a Ninos y Ninas Intersex.pdf" (PDF). Ministerio de Salud. December 22, 2015.
  3. ↑ Participants at the Latin American and Caribbean Regional Conference of Intersex Persons (April 13, 2018). "San José de Costa Rica Statement". Brújula Intersexual. Retrieved 2018-09-05.
  4. 1 2 United Nations; Committee on the Rights of Child (October 30, 2015). "Concluding observations on the combined fourth to fifth periodic reports of Chile". Geneva: United Nations.
  5. ↑ "Chilean Government Stops the 'Normalization' of Intersex Children". OutRight Action International. January 14, 2016.
  6. ↑ "Chilean Ministry of Health issues instructions stopping "normalising" interventions on intersex children". Organisation Intersex International Australia. 11 January 2016. Retrieved 3 January 2017.
  7. 1 2 "Complementa circular 18 que instruye sobre ciertos aspectos de la atencion de salud a niños y niñas intersex" (PDF). Ministerio de Salud. 23 August 2016.
  8. ↑ Lee P. A., Houk C. P., Ahmed S. F., Hughes I. A.; Houk; Ahmed; Hughes (2006). "Consensus statement on management of intersex disorders". Pediatrics. 118 (2): e488–500. doi:10.1542/peds.2006-0738. PMC 2082839. PMID 16882788.
  9. ↑ Inter, Laura; Aoi, Hana (June 15, 2017). "Circular 7 de 2016: Un paso atrás en la lucha por los Derechos Humanos de las personas intersexuales en Chile. Por Laura Inter y Hana Aoi". Brújula Intersexual. Retrieved 2017-07-09.
  10. ↑ Godoy, Camilo (June 18, 2017). "¿Cómo nace la Circular 7 del Ministerio de Salud de Chile? Por Camilo Godoy". Brújula Intersexual. Retrieved 2017-07-09.
  11. ↑ Inter, Laura; Aoi, Hana (June 2017). "Circular 7 De 2016: Un Paso Atrás En La Lucha Por Los Derechos Humanos De Las Personas Intersexuales En Chile" (PDF). Brújula Intersexual.
  12. ↑ Committee on the Elimination of Discrimination against Women (July 2018). "Concluding observations on the seventh periodic report of Chile". Missing or empty |url= (help)
  13. 1 2 3 García, Gabriela. "Identidad forzada". www.paula.cl (in Spanish).
  14. ↑ "Condenan al H. de Talca por error al determinar sexo de bebé". diario.latercera.com (in Spanish). Archived from the original on 24 November 2012. Retrieved 15 February 2017.
  15. ↑ Chile, Cámara de Diputados de. "Sistema de garantías de los derechos de la niñez". www.camara.cl.
  16. ↑ "Comisión de la Cámara aprueba que niñas y niños trans tengan derecho a desarrollar su identidad de género". www.movilh.cl (in Spanish). Retrieved 9 May 2017.
  17. 1 2 3 "Cámara de Diputados aprueba incorporar a niños y niñas LGBTI en proyecto de ley sobre derechos de la infancia". www.movilh.cl (in Spanish). Retrieved 9 May 2017.
  18. ↑ "Orientaciones para la Inclusión de las personas lesbianas, gays, bisexuales, trans e intersex en el sistema educativo chileno" (PDF). April 2017.
  19. ↑ "Datos Registrales con Enfoque de Género" (PDF) (in Spanish). July 2017. Retrieved 16 March 2018.
  20. ↑ "269 niños han sido inscritos con sexo indefinido en el Registro Civil en los últimos 12 años". La Tercera (in Spanish). 14 March 2018. Retrieved 16 March 2018.
  21. ↑ "Circular N° 21 Reitera instrucción sobre la atención de personas trans en la red asistencial" (PDF). Ministerio de Salud. June 14, 2012.
  22. ↑ "Ordinario Circular Nº 1297/2012 Instruye cumplimiento de Guía Técnica Pericial de Sexología Forense para casos de personas trans e intersex". Ministerio de Justicia. November 9, 2012.

Bibliography

  • Comisión Interamericana de Derechos Humanos (Inter-American Commission on Human Rights ) (November 2015), Violencia contra Personas Lesbianas, Gays, Bisexuales, Trans e Intersex en América (PDF)
  • Cabral, Mauro, ed. (February 2009). Interdicciones: Escrituras de la intersexualidad en castellano. Córdoba, Argentina: Mulabi. ISBN 978-987-05-5898-9.
  • Godoy, Camillo; Centro de Derechos Humanos UDP (November 2016). Informe Anual sobre Derechos Humanos en Chile 2016 (PDF). Ediciones Universidad Diego Portales. ISBN 978-956-314-374-4.
  • Guzmán, Claudia (March 15, 2016). "Cambiados de Sexo al Nacer". El Mercurio. pp. 30–37.
  • "Circular 08, 22.12.15 Instruye Sobre Ciertos Aspectos de la atencion de Salud a Ninos y Ninas Intersex.pdf" (PDF). Ministerio de Salud. December 22, 2015.
  • "Complementa circular 18 que instruye sobre ciertos aspectos de la atencion de salud a niños y niñas intersex (Circular 07, 23.08.16)" (PDF). Ministerio de Salud. 23 August 2016.
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