Series: Law, Society, Policy

 

Series Editor: Rosie Harding, University of Birmingham

Law, Society, Policy offers an outlet for high quality, socio-legal research monographs and edited collections with the potential for policy impact.

Cutting across the traditional divides of legal scholarship, the series provides an interdisciplinary, policy engaged approach to socio-legal research which explores law in its social and political contexts with a particular focus on the place of law in everyday life. It takes an explicitly society-first view of socio-legal studies, with a focus on the ways that law shapes social life, and the constitutive nature of law and society.

Law, Society, Policy

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This chapter outlines intersex embodiment as inherently pluralistic in its production through materiality, institutions and cultural knowledge that are contingent to particular times, places, contexts and regulatory frameworks. These different intersecting dimensions produce diverse understandings of intersex embodiment at different times and places. This chapter highlights that understanding these different approaches and how they, in turn, are understood by intersex people remains an important task for all researchers, legislators and policy makers. This chapter closes by articulating a conception of intersex embodiment that goes beyond traditional categories of disorder and identity in order to outline a more situated, contextful and considered account of intersex people.

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This chapter focuses on Malta’s rights-based approach to intersex, which specifically prohibits unnecessary sex-assignment treatment and surgery on intersex minors. This approach has placed the framing of intersex outside simplistic medical and LGBT accounts. As a result, it offers the potential for significant new framings of what intersex is and what intersex can be. Unfortunately, the reality of the intersex experience in Malta has not lived up to the promise of the 2015 legislation. This is predominantly due to an implementation gap where law is yet to affect clinical practice and disrupt the disordered narrative. This serves as an important reminder of how resistant to change the medical framework is. We also note, however, the dynamism of social change and highlight its ongoing and continuous nature rather than being a shift between two static points. State buy-in after law reform takes place is as important as that needed to introduce new legislation to disrupt medical embodiment.

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This chapter explores how psychosocial care within healthcare is an essential element of reframing intersex embodiment and care for intersex people away from paradigmatic medical narratives ‘fixing’ a ‘disorder’ and towards supporting a person. Many biomedical accounts of intersex as a ‘disorder’ remain prominent in psychosocial provision with care often been offered as an ‘afterthought’ or an ‘emotional repository’. Such approaches fail to consider the transformative effect that psychosocial care can have on the intersex experience. Such care can offer support to ensure that intersex people and their families are equipped to deal with the structural challenges that they will face as a result of their intersex variations. These transformative approaches construct intersex as a contextual, situated and dependent individual in need of support in order to overcome the structural issues that they will be faced with. These insights are read alongside shifts in legal theory towards notions of ‘embodied integrity’ in order to outline a thicker conception of legal embodiment.

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Legal Frameworks beyond Identity and Disorder

This book examines the divergent medical, political and legal constructions of intersex. The authors use empirical data to explore how intersex people are embodied through these frameworks which in turn influence their lived experiences.

Through their analysis, the authors reveal the factors that motivate and influence the way in which policy makers and legislators approach the area of intersex rights. They reflect on the limitations of law as the primary vehicle in challenging healthcare’s framing of intersex as a ‘disorder’ in need of fixing. Finally, they offer a more holistic account of intersex justice which is underpinned by psychosocial support and bodily integrity.

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This chapter outlines a working definition of intersex and highlights its multiple and contested nature with particular reference to a community retreat (The Darlington Statement, 2017), the European Parliament (Promoting the Human Rights of and Eliminating Discrimination against Intersex People (Resolution 2191) 2017) and a consensus statement of leading endocrinologists (Lee et al, 2006). From the outset the chapter highlights the plural approaches taken to defining and constructing intersex. The chapter then outlines the concept of legal embodiment highlighting its material, discursive and institutional nature. The chapter finally summarizes the methods used in the book describing the participants, recruitment method, interview approach and methods of analysis.

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This chapter outlines the ways in which intersex embodiment has been framed through an LGBT approach. This results in two contrasting perspectives: a ‘queer’ approach that problematizes heteronormative and binary institutional accounts; and a homonormative approach that tends to replicate existing institutional structures. It is this latter account of LGBT that has seemingly influenced policy makers in their framing of intersex issues. This chapter traces these tensions through Australia’s Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act (Cth) 2013. The chapter outlines how, despite myriad contributions, petitions and commentaries to the contrary, the Australian government failed to challenge the disorder narrative of intersex embodiment and subsequently was unable to change the behaviours and practices of medical practitioners in this area.

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This chapter explores how, since the 19th century, in the West intersex bodies have become primarily constructed through a medical lens of ‘disorder’. The increasing pathologization throughout the 20th century and technological advancements gave medical professionals the ability to ‘correct’ intersex bodies in infancy. The result of such early ‘correction’ was to erase intersex at the cultural and institutional levels. This has meant that medicine has largely shaped understandings and responses to intersex, defining it as a ‘disorder of sex development’ and surrounding treatment with shame and secrecy. Paternalistic attitudes, the young ages of the intersex people involved and a lack of longitudinal data collection have further contributed to healthcare’s framing of intersex as a disorder in need of ‘fixing’. As a result, healthcare has routinely used non-therapeutic surgical interventions to physically shape the intersex child’s body to fit the gender binary. Medical responses to intersex have centred on attempts to erase intersex as a political space or an identity and instead focused on protecting the gender binary and heteronormative society.

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This chapter problematizes the contemporary ways in which third markers have been used to recognize intersex embodiment as synonymous with non-binary identity by law, academia and policy makers. While historically intersex was depicted as a place-holder for binary sex, the use of third markers has become the most prevalent way in which intersex has become recognized in non-medical realms and ultimately frames intersex as located outside of binary conceptions of sex and gender. The chapter particularly focuses on Germany, which, in 2013, became the first European state to recognize third-gender markers on birth certificates. Ultimately, we problematize the depiction of intersex embodiment as non-binary identity when followed through into policy development and legislation as it struggles to challenge medical framings of intersex embodiment as ‘disordered’.

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Reflecting on an essay originally written in response to the Truth and Reconciliation Commission (TRC) process, this chapter begins with the text of that original 1998 essay, marked as “justification”, which is then followed by a present-day reflection on that justification. The goal is to explore and understand the author’s ambivalence towards the TRC and why for them, “sorry” as a speech act is inadequate. The chapter argues that apology must be tied to accountability, even if that is limited to truth telling and acknowledgement. Sorry, from this perspective, would be so much more meaningful if matched with deeds that make reparations, even if small, for the harm done. 

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During South Africa’s transition to democracy in the 1990s, reconciliation as a socio-political aim invoked the question of a white apology for apartheid. The Truth and Reconciliation Commission adopted a confessional approach in which amnesty was accessed through contrition based on knowledge (‘truth’) about National Party (NP) government violence against apartheid enemies. Lack of knowledge about state violence has been operationalised to exonerate white people from regime crimes. Quotidian dehumanisation and disadvantaging of black people, which co-produced white privilege, are obfuscated. Conflation of these plains of knowledge enables white ignorance and obviates the need for apology and, hence, for socio-economic redress. Drawing on analyses of whiteness as ‘epistemologies of ignorance’, the question of apology surfaces the constitutive dynamics of white unknowing, exemplified by the Afrikaner identity as most implicated in the institutionalisation of apartheid. Ways of knowing and humanisation, and how these reflect in and through apology, are explored through texts from three prominent Afrikaners: apartheid assassin Eugene de Kock; former Deputy Minister of Law and Order and Human Rights Commissioner Leon Wessels; and poet, author, and journalist Antjie Krog. These texts cut through the TRC’s too-narrow divisions of knowledge, and show the complex interaction between apology, humanisation and redress.

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