According to theAsia Pacific Forum of National Human Rights Institutions, few countries have provided for thelegal recognition of intersex people. The Asia Pacific Forum states that the legal recognition of intersex people is firstly about access to the same rights as other men and women, when assigned male or female; secondly it is about access to administrative corrections to legal documents when an originalsex assignment is not appropriate; and thirdly it is not about the creation of athird sex or gender classification for intersex people as a population but it is, instead, about self determination.[2]
The Asia Pacific Forum, theCouncil of Europe,[3] and theMalta declaration of the ThirdInternational Intersex Forum have called fornon-binary gender classifications to be available on a voluntary, opt-in basis.[2] The Council of Europe has called for greater consideration of the implications of new sex classifications on intersex people,[3] while the Third International Intersex Forum called for the long term removal of sex or gender from official identification documents.[2]
In some countries, legal recognition may be limited, access to any form of birth certificate may be difficult,[4] while some other countries recognise that intersex people may have non-binary gender identities.[2] Sociological research inAustralia, a country with a non-binary gender marker, has shown that 19% of people born with atypical sex characteristics may prefer that option.[5]
In European societies,Roman law, post-classicalCanon law, and laterCommon law, referred to a person's sex as male, female or hermaphrodite, with legal rights as male or female depending on the characteristics that appeared most dominant. Under Roman law, a hermaphrodite had to be classed as either male or female.[6] The 12th-centuryDecretum Gratiani states that "Whether an hermaphrodite may witness a testament, depends on which sex prevails".[7][8][9] The foundation of common law, the 16th CenturyInstitutes of the Lawes of England described how a hermaphrodite could inherit "either as male or female, according to that kind of sexe which doth prevaile."[10][11] Single cases have been described in Canon law and other legal cases over the centuries.
Intersex scholarMorgan Holmes states that much early anthropological material on non-European cultures described gender systems with more than two categories as "primitive", but also that subsequent analysis of third sexes and genders is simplistic or romanticized:[12]
much of the existing work on cultural systems that incorporate a 'third sex' portray simplistic visions in which societies with more than two sex/gender categories are cast as superior to those that divide the world into just two. I argue that to understand whether a system is more or less oppressive than another we have to understand how it treats its various members, not only its 'thirds'...recognition of third sexes and third genders is not equal tovaluing the presence of those who were neither male nor female, and often hinges on the explicit devaluation of women[12]
In recent years, civil society organization and human rights institutions have raised issues relating to legal recognition.
Research indicates a growing consensus that diverse intersex bodies are normal—if relatively rare—forms of human biology,[13] and human rights institutions are placing increasing scrutiny on medical practices and issues of discrimination against intersex people. A 2013 first international pilot study.Human Rights between the Sexes, byDan Christian Ghattas,[14][15] found that intersex people are discriminated against worldwide: "Intersex individuals are considered individuals with a «disorder» in all areas in which Western medicine prevails. They are more or less obviously treated as sick or «abnormal», depending on the respective society."[14]
In 2015, an Issue Paper onHuman rights and intersex people by theCouncil of Europe highlighted several areas of concern, including legal recognition:
Equal right to life and prevention of medical treatments without informed consent including treatments considered unnecessary;
Removal of Intersex as a curable medical condition but one which can have medical treatments with informed consent;
Equal treatment under the law; including specific legal provisions similar to other classes covered;
Access to information, medical records, peer and other counselling and support;
Self-determination in gender recognition, through expeditious access to official documents.[3]
According to theAsia Pacific Forum of National Human Rights Institutions, few countries have provided for the legal recognition of intersex people. The Asia Pacific Forum states that the legal recognition of intersex people is firstly about access to the same rights as other men and women, when assigned male or female; secondly it is about access to administrative corrections to legal documents when an originalsex assignment is not appropriate; and thirdly, while opt in schemes may help some individuals, legal recognition is not about the creation of a third sex or gender classification for intersex people as a population.[2]
On January 20, 2025, US presidentDonald Trump signedExecutive Order 14168, entitled "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government". This executive order asserts that it is the policy of the United States that there are only two sexes, male and female, and that these sexes are immutable throughout a person's life, starting at conception.[16] According to intersex advocateAlicia Roth Weigel, this order "attempts to negate our very existence".[17]
Like all individuals, some intersex individuals may be raised as a particular sex (male or female) but then identify with another later in life, while most do not.[18][19][20] A 2012 clinical review suggests that between 8.5 and 20% of persons with intersex conditions may experiencegender dysphoria, distress or discomfort as a result of thesex andgender they wereassigned at birth.[21]
Like non-intersex people, some intersex individuals may not identify themselves as either exclusively female or exclusively male. Sociological research in Australia, a country with a third 'X' sex classification, shows that 19% of people born with atypical sex characteristics selected an "X" or "other" option, while 52% are women, 23% men, and 6% unsure.[5][22] At birth, 52% of persons in the study were assigned female, and 41% were assigned male.[5]
Research has also shown gender identities of intersex individuals to be independent ofsexual orientation.[23]
Intersex advocateMorgan Carpenter states that intersex should not be reduced to a gender identity issue; "intersex as identity is polymorphic, but asserts the dignity of stigmatised embodiment."[24]Dan Christian Ghattas states that "People who do not have an intersex body and want to use ‘intersex’ to describe their gender identity, should be aware of the fact that, unfortunately, they are actually making intersex human rights violations less visible."[25]
Currently, depending on the jurisdiction, access to any birth certificate may be an issue,[4] including a birth certificate with a sex marker,[26] and in the absence of surgical requirements.[27]
In 2014 aKenyan court ordered its government to issue a birth certificate to a five-year-old child born with ambiguous genitalia, necessary to allow the child to attend school and obtain a national identity document.[4] Many intersex persons inUganda are understood to be stateless due to historical difficulties in obtaining identification documents, despite a birth registration law that permits intersex minors to change assignment.[28]
A 2017 submission by Justicia Intersex and Zwischengeschlecht to theUnited Nations Committee Against Torture identified twoArgentinian cases of children denied birth certificates without parental consent to irreversible medical interventions.[27]
Recognition before the law means having legal personhood and the legal protections that flow from that. For intersex people, this is neither primarily nor solely about amending birth registrations or other official documents. Firstly, it is about intersex people who have been issued a male or a female birth certificate being able to enjoy the same legal rights as other men and women[2]
The Asia Pacific Forum also highlights access to sport and concerns withsex verification policies.[2] Sex testing began at the1966 European Athletics Championships in response to suspicion that several of the best women athletes from theSoviet Union andEastern Europe were actually men.[29] At the Olympics, testing was introduced in 1968. Initially, sex verification took the form of physical examinations. It subsequently evolved into chromosome testing, and later testosterone testing. Reports have shown how elite women athletes with intersex conditions have been humiliated, excluded, and suffered human rights violations as a result of sex verification testing.[30][31][32] Such cases have includedfemale genital mutilation and sterilization.[32]
The passports and identification documents ofAustralia,New Zealand and some other nationalities have adopted "X" as a valid third category besides "M" (male) and "F" (female), at least since 2003.[35][36] US states have recognised third options since at least 2012, in the case of an 'hermaphrodite' birth certificate sex marker in Ohio.[37] In 2013,Germany became the first European nation to register babies with characteristics of both sexes asindeterminate gender on birth certificates, amidst opposition and skepticism from intersex organisations who point out that the law mandates exclusion from male or female categories.[38][39][40][41]
US organizationIntersex Campaign for Equality successfully pursued third sex/gender classification through a federal court case filed onIntersex Awareness Day, October 26, 2015. On November 22, 2016, theUnited States District Court for the District of Colorado ruled in favor of intersex Navy veteranDana Zzyym, associate director of Intersex Campaign for Equality, stating that the State Department violated federal law in denying Zzyym a passport because they did not select M/male or F/female as their sex marker.[42][43] On October 27, 2021, the very first US X Passport was issued to Dana Zzyym. As stated byLambda Legal, Zzyym's legal representatives in the lawsuit, the X is a "sex/gender" marker representing both intersex and non-binary/gender nonconforming people.[44] The X passport was issued to Zzyym because their medical records demonstrated to the courts that they are not male or female but intersex; in keeping with federal precedent regarding M/F markers, and statewide precedent regarding the X markers, the passport X represents both sex and gender identity. It does not require medical documentation, and will be available to any citizen who wishes to opt out of binary sex/gender classifications. On September 26, 2016, intersex California resident Sara Kelly Keenan became the second person in the United States to legally change her gender to non-binary.[45] In December 2016, Keenan received a birth certificate with an 'Intersex' sex marker from New York City. Press coverage also disclosed that Ohio issued a birth certificate with a sex marker of 'hermaphrodite' in 2012.[46][37]
The intersex movement supports voluntary and opt-in non-binary and multiple sex classifications, described in the statement of the ThirdInternational Intersex Forum. TheOpen Society Foundations published a report,License to Be Yourself in May 2014, documenting "some of the world's most progressive and rights-based laws and policies" enabling changes to gender markers on official documents.[47] The report comments on the recognition of third classifications, stating:
From a rights-based perspective, third sex / gender options should be voluntary... Those identifying as a third sex / gender should have the same rights as those identifying as male or female.[47]
The Council of Europe acknowledged concerns about recognition of third and blank classifications in a 2015 Issue Paper, stating that these may lead to "forced outings" and "lead to an increase in pressure on parents of intersex children to decide in favour of one sex."[3] The Issue Paper argues that "further reflection on non-binary legal identification is necessary":
Mauro Cabral,Global Action for Trans Equality (GATE) Co-Director, indicated that any recognition outside the "F"/"M" dichotomy needs to be adequately planned and executed with a human rights point of view, noting that: "People tend to identify a third sex with freedom from the gender binary, but that is not necessarily the case. If only trans and/or intersex people can access that third category, or if they are compulsively assigned a third sex, then the gender binary gets stronger, not weaker"[3]
The Asia Pacific Forum of National Human Rights Institutions recognised the right of individuals to non-binary or third sex classifications, but stated that, "creating a third, separate category for the registration of people born with an intersex trait ... would risk segregating and potentially stigmatising intersex people. It would also remove their right to determine their own sex or gender."[2]
In March 2017, anAustralian andNew Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based onstructural violence and failed to respect diversity and a "right to self-determination".[48][49]
The statement of the ThirdInternational Intersex Forum calls for an end to official classification by sex or gender on identification documents.Dan Christian Ghattas ofOII Europe states that, "providing the options for all parents to leave the sex/ gender entry open for their child would promote the equality of all sexes and genders".[25] Laura Inter ofMexican intersex organizationBrújula Intersexual, imagines a society where sex or gender classifications are removed from birth certificates and other official identification documents,[50] andMorgan Carpenter ofOII Australia states that, "the removal of sex and gender, like race and religion, from official documentation" is "a more universal, long-term policy goal".[24]
In March 2017, an Australian and New Zealand community statement called for an end to legal classification of sex, stating that legal third classifications, like binary classifications, were based on structural violence and failed to respect diversity and a "right to self-determination". It also called for the criminalization of deferrableintersex medical interventions.[48][49]
Distinctions between sex and gender are lost in many official or legal documents,[51] and also online. In 2014, Facebook introduced dozens of options for users to specify their gender, including the option of intersex.[52]
TheMalta declaration by the Third International Intersex Forum, in 2013, called for infants and children to be assigned male or female, on the understanding that later identification may differ:
To register intersex children as females or males, with the awareness that, like all people, they may grow up to identify with a different sex or gender.
To ensure that sex or gender classifications are amendable through a simple administrative procedure at the request of the individuals concerned. All adults and capable minors should be able to choose between female (F), male (M), non-binary or multiple options. In the future, as with race or religion, sex or gender should not be a category on birth certificates or identification documents for anybody. (ThirdInternational Intersex Forum)[2]
Recognition and rights by continent and jurisdiction
Parts of this article (those related to the United States) need to beupdated. Please help update this article to reflect recent events or newly available information.(January 2025)
/ Opt in only for Washington D.C., California, New York City, Ohio (with a court order only), New Mexico,[87] Nevada,[88] Oregon, Utah (with a court order only),[89] Washington State, New Jersey,[90] Colorado, and Michigan.[91][92][45][37]US Passports since January 2025 had no longer issued the gender X option, keeping previously-issued gender X passports still valid;[93][94][95][96] however, in June 2025, per court order, "X"-gender passports started being issued again.[97][98] Firearms transferATF forms and documents also have male, female and non-binary options since 2021.[99]
Exemptions regarding sport and female genital mutilation[153]
Policies vary depending on jurisdiction[154] Requiressexual reassignment surgery since 1996 within NSW - until June 30, 2025. "Appropriate clinical treatment" required in NT, SA and WA. Self-determination in ACT, VIC, TAS, QLD (and NSW effective from July 1, 2025).[155]
(Passports) Opt in at federal level, state/territory policies vary[154][51]
^Raming, Ida; Macy, Gary; Bernard J, Cook (2004).A History of Women and Ordination.Scarecrow Press. p. 113.
^E Coke, The First Part of the Institutes of the Laws of England, Institutes 8.a. (1st Am. Ed. 1812) (16th European ed. 1812).
^Greenberg, Julie (1999). "Defining Male and Female: Intersexuality and the Collision Between Law and Biology".Arizona Law Review.41:277–278.SSRN896307.
^Zderic, Stephen (2002).Pediatric gender assignment : a critical reappraisal ; [proceedings from a conference ... in Dallas in the spring of 1999 which was entitled "pediatric gender assignment - a critical reappraisal"]. New York, NY [u.a.]: Kluwer Acad. / Plenum Publ.ISBN978-0306467592.
^Baseline Survey on Intersex Realities in East Africa - Specific Focus on Uganda, Kenya and Rwanda, Support Initiative for Persons with Congenital Disorders, 2016
^"Zakon o zabrani diskriminacije | Crna Gora | Paragraf Lex".www.paragraf.me. Article 19 ("Any discrimination, unequal treatment or unequal position of a person or group of persons on the basis of gender identity, sexual orientation and / or intersex characteristics is considered discrimination.").Archived from the original on 2020-08-04. Retrieved2020-11-08.
^"Norway".Rainbow Europe.Archived from the original on January 5, 2017. RetrievedApril 29, 2021.
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Kenya
[53][54]
South Africa
Uganda
Nigeria
Argentina
Canada
Chile
Colombia
Mexico
United States
Uruguay
Bangladesh
[103][citation needed]
China
India
Japan
Requires surgery[2]
Nepal
Pakistan
South Korea
Thailand
Vietnam
Australia
New Zealand
