Intersex, discrimination and the healthcare environment : a critical investigation of current English law

Brown, Karen Jane (2016) Intersex, discrimination and the healthcare environment : a critical investigation of current English law. Doctoral thesis, London Metropolitan University.


Of the two thousand babies born each day in England and Wales, at least twenty will have an intersex condition (also known as Disorder of Sex Development). For some, the condition lies dormant for many years, if not for the remainder of their lives, whilst others are born with genital differences to such a degree that it is not possible at birth to inform parents whether their child is ‘male’ or ‘female’. This ‘devastating’ announcement commences a lifetime of potential discrimination for these children (and arguably for their parents) both in the healthcare environment and in society in general. It might have been thought that when the Equality Act 2010 was passed such discrimination would cease as, according to the summary of the Act, its two main purposes are to harmonise discrimination law and enhance legal mechanisms to allow equality for everyone. However, the category of 'intersex' is not included in the Act.

This thesis aims to build on existing literature, and to investigate and analyse whether current English law prevents or promotes discrimination against the intersexed in the healthcare environment in England today. It further endeavours to propose suitable amendments to current law where such discrimination is identified. Previous literature has indicated that discrimination may arise as a result of pre-implantation genetic diagnosis (PGD), selective abortions of the intersexed fetus, and ‘normalising’ genital operations of the intersexed child. Further, activists have noted that the withholding of medical records is detrimental to the person concerned. However, to date there has been sparsity of literature to address current English law in these areas.

Results of investigations carried out for this thesis indicate that in some aspects, for example access to medical records, current English law supports the rights of the intersexed patient. Research also indicates that in regard to selective abortions current law can be justified. However, in other areas, notably PGD and genital modification operations, English law can be said to discriminate against the intersexed, whilst for neonatal testing, current healthcare policies and procedures can be considered discriminatory. Such provisions require reconsideration. In this respect, legal amendments are proposed to assist in overcoming discrimination. This includes an amendment to the Equality Act itself.

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