Relationship between the law and the intersex condition

The Italian legal system does not recognize the specificity of the intersex condition, we therefore need to recompose the framework of protections from the rights and freedoms provided for in the Italian Constitution, European Union law, and international law. There exist non-binding regulations (soft law) but these are seldom applied in courtrooms, and little known to the legal professionals called upon to apply them (judges and lawyers).

Surgical interventions detrimental to physical integrity -notwithstanding widespread awareness about their invasive nature and irreversible effects- violate the constitutional right to health (Art. 32 CONST.), the only one defined as fundamental by the Italian Constitution. In addition, when dealing with the intersex condition, surgical treatments frequently give unsatisfactory results, subject the person to perpetual, forced medicalization, and are often detrimental to their health. For the sake of health protection, any therapeutic choice should instead focus on the integrity of the body, not jeopardize the person's social and relational life, present and future. Any given therapy should only be applied when necessary and urgent, after verifying its applicability on a case-by-case basis. The person involved -and if they are a minor, their parents as well- must be informed about the different options and results that can be achieved, so that they may give their informed consent. Actually, more often than not those involved are unaware of the fact that there is no certainty about the degree of well-being achievable or the actual need for surgery, and so on. Parental consent, however, may not justify practices detrimental to the integrity of the child when treatment is not necessary.

According to the principle of self determination (Art.13 CONST.), every person must be guaranteed full personal freedom in the choices that affect them, without becoming the object of a “normalization” pathway decided upon by third parties (parents, health care providers, judges), which will prevent unnecessary surgery that are usually performed for purely aesthetic reasons. Considering how such procedures often compromise relational life, it is essential to guarantee full constitutional protection to sexual freedom as an expression of individual freedom. Indeed, the Constitution places the person at the centre, in observance of the principle of equal dignity and equality (Art. 3), as well as the duty of social solidarity (Art. 2).