ARSI’s co-directors Ilia Savelev and Ally Gray discussed the Federal Law of July 24, 2023, No. 386-FZ, “On Amendments to Certain Legislative Acts of the Russian Federation,” and its consequences for the intersex community in Russia.

Ally: Why did the deputies include an exception for medical interventions on intersex individuals in this law?

Ilia: There’s no doubt that this exception was introduced according to foreign examples—similar provisions exist in the law of some Eastern countries and conservative states in the US. The practical purpose of the sudden exploitation of intersex people in the transgender transition law is clear—discrediting medical interventions for transgender people as “made up” compared to “medically necessary” interventions for intersex people, the continuation of the developed industry of mutilating surgeries on intersex people, and protecting doctors from liability for violating the ban.

However, a deeper analysis reveals the true intentions of the legislature. The law simultaneously prohibits medical interventions for transgender people when there is a person’s will and medical necessity but allows medical interventions on intersex children when both the person’s will and medical necessity may be absent. In both cases, a person’s will or medical necessity for intervention is less important than the definiteness and immutability of sex characteristics. Thus, the law protects not children but the sex homogeneity of society.

Ally: How do you evaluate the ban on medical interventions contained in the law?

Ilia: According to the new law, medical interventions to change sex characteristics, including the use of drugs, if they are associated with the “treatment” of intersex variation, are allowed only with the permission of the medical commission of the state medical organization.

In practice, intersex children are already being sent for treatment to specialized state clinics. However, the main problem is that intersex children are often subjected to medical interventions to change sex characteristics without therapeutic necessity and their personal, free, voluntary, informed consent. These interventions aim to align the child’s sex characteristics with the “assigned” sex. The law does not prohibit these interventions and does not establish the requirement of the intersex patient’s personal voluntary informed consent. The law also does not mandate the inclusion of representatives of the intersex community in this medical commission.

Moreover, the law contains a restriction on medical interventions aimed at “changing sex”. However, intersex people may be subjected to involuntary medical interventions without therapeutic necessity aimed at aligning sex characteristics with their already registered civil sex, for example, mastectomies or “correction” of hypospadias. Such interventions are not limited by law, and this is also an omission.

In addition, the law denies transgender intersex people access to voluntarily chosen medical interventions on sex characteristics if they are not allowed as part of the “treatment” of intersex variations by third parties. This violates the right to respect for private life, according to which every transgender person, whether intersex or not, should have the right to access medical interventions to bring their body into line with their internal sense of sex.

From the point of view of the impact on public opinion, the effect of the law is also ambiguous. On the one hand, the inclusion in the law about “harmful” practices of an exception for medical interventions on the sex characteristics of intersex children supports the public perception of such interventions as useful and state-approved, which may complicate the advocacy of intersex organizations against such interventions. On the other hand, the mere mention of intersex in the law, albeit in incorrect terminology, increases public awareness of the existence of intersex people. Unfortunately, most media overlook this point.

Ally: What about changing the gender marker in documents?

Ilia: The deputies took into account the criticism of the bill that we sent in our 15-page legal comment before the second reading, and they added an article allowing the change of the legal gender marker in an administrative procedure. Such a change is made only based on the conclusion of the state medical commission about the correspondence of sex characteristics to the characteristics of a certain sex.

However, the law contains a dangerous caveat – the document of compliance is issued to intersex people “as a result” of medical interventions and not based on, for example, an examination of existing sex characteristics, their natural presence, or change. On the other hand, the phrase “medical interventions” include a wide range of measures, and which of them will be sufficient for the issuance of the document will be shown by practice.

Of course, it is worth noting that the modern standard in this area of human rights is the self-determination of gender identity and the change of documents in accordance with this self-determination through a simple, transparent, accessible administrative procedure without conducting any medical interventions or third-party approval. This right should not be dictated by a commission of doctors but belongs to the person as part of the right to respect for private life.

Ally: What other improvements compared to the first edition have we been able to achieve?

Ilia: The deputies expanded the list of intersex variations for determining the exception, I believe, as a result of our legal advocacy because we specifically noted this point. The first draft of the law spoke only of physiological aspects, and endocrine and genetic variations were added in the second draft. However, the law still uses pathologizing and incorrect language.

Ally: What incorrect language are you referring to?

Ilia: The first problem is with the terms “sex changed” and “persons who changed sex”. Biological sex is a classification system of sex characteristics, and it is not possible to “change” biological sex. We can only talk about changing individual sex characteristics. Some sex characteristics are immutable: a person cannot change the number and composition of sex chromosomes and genes or create certain organs. Other components of biological sex (such as hormone levels, genital form, secondary sex characteristics) can be changed under the influence of internal and external factors, including medical interventions.

The second drawback is the set of expressions used to describe intersex variations. The law uses terms such as “congenital anomalies,” “developmental defects,” “diseases,” and “disorders of sex organ formation”. These terms present intersex differences as a problem and negatively affect societal perception. I am upset that most progressive liberal media are using these terms and not writing about intersex people correctly. I hope we can change the situation with journalistic illiteracy.

Ally: Can these language shortcomings in the law create any legal problems for intersex people?

Ilia: Definitely. The law uses incorrect terminology and is filled with flaws in legal technique. This violates the principle of legal certainty and introduces ambiguity into the legal status of intersex people in Russia.

Firstly, the phrase “diseases related to the disorder of sex organ formation in children” raises questions. Intersex variations can manifest not only in the organs (glands and genitals), but also in chromosomes, genes, and levels of sex hormones. Not all intersex variations and not always significantly affect the formation of sex organs in children. Therefore, it is unclear whether these provisions will apply only to intersex people with existing differences of sex organs or to intersex people with variations that are, in principle, capable of affecting the formation of sex organs.

Secondly, it is unclear whether medical interventions and changes in documents are allowed only in childhood or whether the mere connection of the treatment with the congenital features of a person is sufficient. Intersex variations exist throughout a person’s life, and people with such variations may require medical interventions to change sex characteristics, including taking medicinal drugs, throughout their lives, not just in childhood.

Moreover, many intersex people find out about their variation and choose to seek medical interventions and changes in documents only in adulthood. For example, a variation may not have manifested earlier, doctors and parents may have hidden the variation from the intersex person, or there may have been delays or errors in diagnosis. The child and his family may not be ready or able to undergo medical intervention or change documents.

Undoubtedly, any age restrictions on access to medical care and changes in documents will lead to mental health problems, and discrimination, and increase the pressure on parents to make a harmful medical decision for the child in childhood.

Ally: What impact will the law have on the adoption, guardianship, and termination of marriage of intersex people?

Ilia: There’s also a problem with terminology here. The law states that “changing sex” does not apply to intersex “treatment”. The article on marriage directly states the change of legal gender marker in the documents as a basis for terminating marriage. In contrast, articles on limiting adoption and guardianship (custody) speak of persons who have “changed sex” without specifying whether the term “changing sex” in the sense of the law or any change in sex characteristics or documents, including intersex, is being discussed.

In a more optimistic interpretation, the exclusion from the concept of “sex change” for medical interventions and changes in documents for intersex extends to norms about family rights, so the legal status of intersex remains the same.

In the worst case, the family rights of intersex people are unjustifiably restricted, violating the principle of non-discrimination. This is especially unfair since sex characteristics, and their change are beyond a person’s will, like skin or eye color, and medical interventions and corresponding changes in documents for intersex are often carried out in childhood without the full, voluntary, informed consent of the patient themselves. In this interpretation, the amendments restrict intersex in family rights simply based on being born with certain sex characteristics and subsequent decisions made for them in childhood. It is inexplicable how, from the deputies’ point of view, changing documents or an operation carried out on a person in infancy affects their moral qualities or ability to become a good parent to an adoptive child. In this interpretation, the restrictions of the law would be especially harmful, given that many intersex people would like to but cannot conceive or bear children in a natural way.

The future will show the interpretation of these provisions. In any case, there is no connection between the ability to be a good spouse or parent (guardian, custodian) and sex characteristics, gender identity, documents both for intersex and non-intersex people. Therefore, this law does not protect but destroys the family, parenthood, and childhood.