Do parents really know best? Informed consent to sex assigning and ‘normalising’ treatment of minors with variations of sex characteristics

Abstract

This paper aims to explore how pervasive constructions regarding a person's sex and gender identity in society and law limit the human rights of persons with variations of sex characteristics. Societal culture promulgates a binary (male/female) gender ideal which includes standards of normality for our bodies. People who do not easily fit these culturally constructed norms, such as persons with variations of sex characteristics, encounter numerous difficulties. The legal conceptualisation of 'sex' according to the binary maintains the medicalisation of variations of sex characteristics and reinforces the focus on sex 'normalising' treatment of children who are too young to provide their informed consent. The paper makes use of Belgium as an illustration. Not only is comprehensive legal research concerning variations of sex characteristics absent in Belgium, but the country has also been responsive to human rights claims regarding sexual identity in recent years. With regards to the sex assigning or 'normalising' treatment of persons with variations of sex characteristics, this paper argues that by accepting the substitution of the child's informed consent for the opinion of the legal representative in the absence of urgent medical necessity, Belgian law fails to protect the former's right to bodily integrity and best interests.