The rights of intersex persons in Greece

Introduction

The primary and elementary claim of any social group that for years has been living unseen, “invisible”, is to convincingly establish its existence. This is accomplished when it is understood that this existence concerns the lives of individuals that deserve to live in freedom and equality. Within the diversity of the LGBTQI+ condition, intersex individuals are the “I” in the acronym. Intersex individuals are already under threat in the embryonic stage, from outdated but still prevalent medical approaches that advise terminating the pregnancy when it is identified that a person has physical characteristics from both sexes. So, last in the order of the acronym, but not least, intersex individuals carry the identity of a body born with sex characteristics that do not fall under the typical definitions of the male or female body.[1] At the heart of this debate lies the key term “sex characteristics”, while in the other acronyms of the condition lies “sexual orientation” and “gender identity”. The intersex situation, therefore, adds another dimension, with a strong physical reference.

Greek legislation defines as “sex characteristics” the chromosomal, genetic, and anatomical characteristics of a person, which include primary characteristics, such as the reproductive organs, and secondary characteristics, such as muscle mass, breast development, or hair growth.[2] In a recent document issued by the Hellenic Police, in addition to the above, “hair distribution” and “body structure” are also classified as “sex characteristics”.[3]

An instrument of reference on this subject is Resolution 2191/2017 of the Parliamentary Assembly of the Council of Europe, entitled “Promoting the human rights of and eliminating discrimination against intersex people”.[4] Equally significant is the European Parliament Resolution of 14 February 2019 on the rights of intersex people.[5] Both these resolutions note that, for years, the intersex condition was treated as a medical issue, under the distorted view that the bodies of intersex people must be medically “corrected”, so as not to deviate from the male or female standard. As noted by the Council of Europe, this approach is extremely dangerous for the health of intersex people, submitting them to abusive and invasive medical practices. There are records of mutilations of the sexual organs of intersex individuals, with life-long consequences including both mental trauma and physical disabilities. With this background, the resolutions call upon the states of Europe to implement legislative protections guaranteeing the human rights of intersex people across a broad spectrum of their social and personal life: regarding discrimination, identification documents, and invasive medical acts for sex “normalization”, especially on infants.[6]

This paper records the extent to which current Greek legislation is in compliance with the European recommendations in regard to the protection of intersex persons.

Non-discrimination

Discrimination on the grounds of “sex characteristics” is explicitly prohibited under Law nr. 4443/2016. It is interesting to note that this law was passed before the legislative definition of “sex characteristics”, which was introduced a year later, with Law nr. 4491/2017. This particular piece of legislation is implemented in the work sector, prohibiting direct and indirect discrimination across the entire spectrum of intersex people’s circumstances in this sector. However, there are significant gaps in the protection afforded by this law. In particular, the full protection of the law prohibits discrimination in the conditions of access to work, the conditions under which work is provided, the grounds for promotion and for dismissal, professional training, and membership of workers or employers organisations. While the same law provides that the prohibition of discrimination based on national or racial origin extends to several other fields beyond the workplace, the same is not true for discrimination based on sex characteristics. Specifically, according to Article 3, discrimination based on sex characteristics (as well as sexual orientation and gender identity) is not prohibited, under this particular law, in the fields of social security, healthcare, social benefits and tax breaks, in education (excluding vocational training) and in access, availability and provision of goods and services commercially available to the public, including housing. This gap in protection was noted in the National Strategy for LGBTQI+ Equality that was drafted in 2021 by a committee convened by the prime minister.[7]

The prohibition of discrimination must be horizontal and must pertain to every life circumstance where the intersex person “encounters” the state. A typical instance that is not covered under the narrow field of application of Law nr. 4443/2016 concerns a child of asylum seekers that was also, at the same time, an unaccompanied intersex infant. Its story has been recorded as a case of concern to the Authorities.[8] The intersex infant, which was assigned “female” sex, was born in the hospital in Mytilene to foreign parents applying for international protection and, “due to health problems”, was transferred to a hospital in Athens. The parents declared that they did not wish to be the infant’s guardians and caretakers, and as a result the Single-member Court of First Instance of Mytilene assigned the infant’s care to the hospital. Following interventions by the Intersex Greece organization and the Support Association for Intersex People, “ideas” regarding surgical interventions to “normalize” the infant’s sex were abandoned, as it was officially ascertained that the child was not suffering any health problems. Indeed, in a document from the Special Secretariat for Unaccompanied Minors of the Ministry of Immigration it was noted that, as it results also from Resolution 2191/2017, surgical interventions in intersex infants are not only unnecessary, but are, in fact, harmful and must be postponed until the child is old enough to consent. A legislative prohibition of surgical interventions in infants has already been enacted in 2022. But the legislative extension of the prohibition of discrimination based on sex characteristics to areas such as asylum and access to healthcare services is still pending.

Hate crimes against intersex people

When the victim of a crime is targeted by the perpetrator on ground of their sex characteristics, because, among other things, they are an intersex person, Criminal Law mandates a harsher sentence. Article 82A of the Criminal Code is entitled “crime with racist characteristics” and pertains to potentially any crime that occurs because of the victim’s sex characteristics.[9] This provision stipulates that in the case of a misdemeanor against an intersex person who was targeted and victimized because of this feature, the sentence is increased by six (6) months for crimes punishable with up to one year of incarceration, while in all other misdemeanor cases, the sentence is increased by one (1) year. In case of a felony, the minimum sentence is increased by two years.

Age of consent for medical procedures

The purpose of the legislative intervention, following the Resolutions of the Council of Europe and the European Parliament, is to prohibit irreversible medical procedures and treatments that pertain to the sex characteristics of intersex persons, and which are often performed in infancy or in general at an age when the person is not able to comprehend the situation and provide consent on such a serious matter regarding their body and their future. So, the intersex person’s consent is at the heart of new, special legislation that governs this issue.[10] The general concept of valid consent by a person in order to be submitted to a medical procedure is governed by Article 12 of Law nr. 3418/2005 (Code of Medical Ethics), which provides for the person’s full, clear and comprehensive information, their capacity of consent in regards to age and mental ability – emotional maturity for consent in the case of minors, otherwise consent by the person’s close relatives.

Greek law sets the age of consent of an intersex person at 15 years[11], following a comprehensive briefing of the person themselves and of those persons exercising parental responsibility or rights of custody of the intersex minor, in order to be submitted to medical interventions and treatment, including surgical or hormonal, for the total or partial “change of sex characteristics”, as stated in the relevant new provision of Article 17, para. 1 (“Conditions for changes of the sex characteristics of minor intersex persons”) of Law nr. 4958/2022.

For intersex persons under 15 years of age, the legal restriction on medical acts affecting sex characteristic is stricter. Article 17, para. 2 stipulates that the consent of the minor and the consent of the persons exercising parental responsibility or rights of custody is not sufficient, but court authorization is also required, granted by the District Court at the minor’s place of residence. However, this permission only pertains to medical acts that cannot be postponed until the minor reaches the age of fifteen (15) years, and that do not bring about other future irreversible or potentially significant complications for the minor’s health. By exception, this court authorization is not required when the medical act or treatment is necessary to prevent risks to a minor’s life or health in the sense of the Code of Medical Ethics (urgent need for medical care that exceeds the need for consent or refusal of consent by a minor’s parents and need for immediate medical intervention to prevent a risk to life or health) and cannot be postponed until after the issuing of the court’s decision. The District Court adjudicates in accordance with the procedure of non-contentious proceedings, in closed session, and its decision is unappealable, that is, it is final: it either authorizes the commission of the medical acts or rejects the petition. A prerequisite for granting authorization is the in-person hearing of the minor before the judge; the issuing of an opinion from an interdisciplinary committee that is established by the same law; and the in-person hearing of a representative from said interdisciplinary committee.

Article 19 (“Amendment of registered sex”) of Law nr. 4958/2022 stipulates that in the event that the above acts or treatments have brought about an inconsistency with the minor intersex child’s registered sex (in the Civil Registry), the registered sex is amended by the competent Court. It is, in effect, a tacit reference to Law nr. 4491/2017, which regulates legal recognition of gender identity.

According to Article 28 (“Interdisciplinary Committee”) of Law nr. 4958/2022, this advisory body consists of “at least” one doctor with experience in surgical interventions on intersex persons or in any interventions to “normalize” (sic) sex characteristics in the context of Disorders of Gender Development (sic); one legal professional specializing in bioethics; one psychologist, preferably with experience in issues surrounding sex characteristics; a social worker with relevant experience, and a representative of the community of intersex citizens[12] with relevant training. However, the above article does not stipulate where this committee is attached for administrative purposes, unlike the inter-ministerial committee provided by Article 3, para. 2 of Law 4491/2017 (for the legal recognition of gender identity for persons between the ages of 15 and 17), where it is stipulated clearly that it is a committee of the Ministries of Health and Justice. Article 18 does not provide which Ministry is competent to appoint the committee’s members, provide administrative support and meeting infrastructure. These serious omissions, if not resolved, essentially render the implementation of the law inactive in regard to minor intersex persons under 15 years of age. However, while Law nr. 4491/2017 absolutely prohibits the legal recognition of gender identity for persons under 15 years of age, Law nr. 4958/2022 permits medical acts for intersex minors even young than 15, with the above-mentioned strict prerequisites.

Criminalization of medical “corrections” in intersex persons

Non-compliance with the above conditions is now formalized as a criminal offense. Article 20 (“Sanction”) of Law nr. 4958/2022 provides incarceration sentences of at least six (6) months and monetary fines for doctors who perform medical acts or treatments on minor intersex persons in violation of Article 17. Repeated violations constitute aggravating circumstances, and the guilty party is also subject to the additional penalty of Article 65 of the Criminal Code, regarding a prohibition on exercising a profession (occupational ban) for a period between one month and two years, regardless of the level of the imposed sentence. It should be noted that such additional penalty is not provided for the corresponding criminal offense of performing practices for conversion of sexual orientation or gender identity (Article 62, para. 2 of Law nr. 4931/2022).