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Il riconoscimento giuridico del “terzo sesso”: un esempio di inclusione-esclusione? Riflessione socio-giuridiche e culturali sulla condizione intersex
Abstract
The article aims to discuss if and how medical labels and practices create sex-anatomical standards with respect to which those who do not align with them are labeled as “abnormal”, thus also legitimizing some forms of violence and social marginalization. The case study of the German legal framework, where the third sex registry has recently found space, will then be explored to reflect whether non-normative bodies are liberated or governed, with related normalizing repercussions, through their legal recognition.
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Quello terminologico è un dibattito ancora in corso e talora anche molto acceso, nelle comunità di riferimento e in quelle coinvolte più o meno direttamente (attivistɜ, pazienti, genitori, medici, studiosɜ). (...)
Once described as hermaphrodites and later as intersex people, individuals born with intersex variations are routinely subject to so-called “normalizing” medical interventions, often in childhood. Opposition to such practices has been met by attempts to discredit critics and reasserted clinical authority over the bodies of women and men with “disorders of sex development.” However, claims of clinical consensus have been selectively constructed and applied and lack evidence. Limited transparency and lack of access to justice have helped to perpetuate forced interventions. At the same time, associated with the diffusion of distinct concepts of sex and gender, intersex has been constructed as a third legal sex classification, accompanied by pious hopes and unwarranted expectations of consequences. The existence of intersex has also been instrumentalized for the benefit of other, intersecting, populations. The creation of gender categories associated with intersex bodies has created profound risks: a paradoxically narrowed and normative gender binary, maintenance of medical authority over the bodies of “disordered” females and males, and claims that transgressions of social roles ascribed to a third gender are deceptive. Claims that medicalization saves intersex people from “othering,” or that legal othering saves intersex people from medicalization, are contradictory and empty rhetoric. In practice, intersex bodies remain “normalized” or eliminated by medicine, while society and the law “others” intersex identities. That is, medicine constructs intersex bodies as either female or male, while law and society construct intersex identities as neither female nor male. Australian attempts at reforms to recognize the rights of intersex people have either failed to adequately comprehend the population affected or lacked implementation. An emerging human rights consensus demands an end to social prejudice, stigma, and forced medical interventions, focusing on the right to bodily integrity and principles of self-determination.
This article presents the findings from the first qualitative study to consider the relationship between intersex experience and law; representing a significant contribution to a currently under-researched area of law. Since 2013 there has been a global move towards the legal recognition of intersex, with Australia, Germany and Malta all using different techniques to construct and regulate intersex embodiment. This article is the first to compare and problematise these differing legal approaches in the legal literature. In doing so it demonstrates that many of these approaches are grounded in ideas of formal equality that lead to the entrenchment of vulnerability and fail to build resilience for the intersex community. Through engagement with the intersex community a more contextual account of substantive equality is enabled encouraging new approaches to law and social justice. Our qualitative study revealed that prevention of non-therapeutic medical interventions on the bodies of children was understood to be the key method to achieving equality for intersex embodied people. Whilst this is the cornerstone of intersex-led legislative reform such an approach necessitates support through a mixture of formal and substantive equality methods such as anti-discrimination law, education and enforcement procedures. This article concludes by offering a series of recommendations to legislators capable of enabling substantive intersex equality.
In this article we develop a new model of bodily integrity that we designate ‘embodied integrity’. We deploy it to argue that non-therapeutic interventions on children should be considered within a decision-making framework that prioritizes embodied integrity. This would counter the excessive decision-making power that law currently accords to parents, protecting the child's immediate and future interests. Focusing on legal responses to genital cutting, we suggest that current legal understandings of bodily integrity are impoverished and problematic. By contrast, adoption of an ‘embodied integrity’ model carves out a space for children's rights, while avoiding these negative consequences. We propose that embodied integrity should trump competing values in any best-interests assessment where a non-therapeutic intervention is requested. Drawing on Drucilla Cornell and Joel Feinberg's theories we argue that protecting a child's embodied integrity is essential to guarantee his/her right to make future embodied choices and become a fully individuated person.
One of the most common problem found in patients with Disorders of Sexual Developments is the absence or extreme hypoplasia of the vagina. The type of patients presenting this anomaly may belong to completely different groups: (1) Patients with a urogenital sinus with urethra and vagina fusing together to form a common channel. (2) Patients with absent Müllerian structures and different degrees of external virilization. (3) Complex malformations. Treatment options: treatment of these patients is under discussion and may consist, basically, in non-operative dilation methods or surgical creation of a neovagina. Consensus is far to be reached among the various surgical subspecialties regarding the optimal method of vaginal replacement. Adequate number of long-term follow up patients are still non-available so that most conclusions are based on small number series. The authors describe the different treatment options in detail.
The practice of administering dexamethasone to pregnant women at risk of having children with congenital adrenal hyperplasia in hopes of reducing or eliminating virilization of their female children's genitals began in the late 1970's and has become not only increasingly prevalent, but also increasingly controversial. Because sexual differentiation occurs early in pregnancy, treatment with dexamethasone (hereafter DEX) begins as soon as an at-risk woman knows she is pregnant, ideally around six weeks of gestation. Treatment is discontinued if screening tests later reveal that the fetus is male and therefore unaffected by the disease, but if the fetus is female and affected, treatment continues throughout pregnancy. Although DEX has been administered to adults to treat various conditions for over forty years, it has never been approved for prenatal use, and there has been growing evidence that such use may not be appropriate. This chapter will briefly document the history of DEX use to prevent virilization in fetuses with congenital adrenal hyperplasia and will call attention to some of the problems involved. I will defend the view that, at minimum, prenatal DEX administration should be considered an experimental treatment rather than the standard of care, but that, even as an experimental treatment, prenatal DEX administration requires further justification. I agree with those researchers who have argued that any further experimentation with DEX should take place in the context of long-term, multi-centered, and, preferably, international clinical studies. However, the primary purpose of this examination is not to make proclamations about the propriety of prenatal DEX use, but rather to identify ethical issues involved in prenatal DEX use, to identify criteria that must be met in order for such issues to be resolved, and, to the extent that current practices might be ethically suspect, to speed up the awareness of ethical problems among members of the relevant professions. In order to set the stage for this examination, I begin with some facts about congenital adrenal hyperplasia (CAH) and the traditional clinical approaches to its treatment. CAH is an autosomal recessive genetic and congenital disease that causes overproduction of androgens, which in females leads to virilization of the genitals. Whereas nonclassic CAH does not become apparent until later in life and poses no
The etiology of gender identity is explored through the case history of a teenager with intersex raised without stigmatization as a girl but who declared himself male at age 14 years. Psychological ramifications of such complex medical anomalies as ambiguous genitalia demand a role for child psychiatry.
Guidelines of psychosexual management for infants born with physical intersex conditions are intended to assist physicians and parents in making decisions about sex of assignment and rearing including the following: 1) sex assignment should be to the gender that carries the best prognosis for good reproductive function, good sexual function, normal-looking external genitalia and physical appearance, and a stable gender identity; 2) the decision regarding sex assignment should be made as early as possible, preferably during the newborn period, with an upper age limit for reversal of an initial sex assignment no later than 18 to 24 months; and 3) there should be minimal uncertainty and ambiguity on the part of parents and professionals regarding the final decision about sex assignment and rearing.
J. Money used these guidelines in a case of a biologically normal male infant (one of a pair of monozygotic twins) whose penis was accidentally ablated during a circumcision at the age of 7 months. The decision to reassign the infant boy to the female sex and to rear him as a girl was made at 17 months, with surgical castration and initial genital reconstruction occurring at 21 months.
Money reported follow-up data on this child through the age of 9 years. Although the girl was described as having many “tomboyish” behavioral traits, a female gender identity had apparently differentiated. Thus, it was concluded that gender identity is sufficiently incompletely differentiated at birth as to permit successful assignment of a genetic male as a girl, in keeping with the experiences of rearing.
Subsequent follow-up by other investigators reported that by early adolescence the patient had rejected the female identity and began to live as a male at the age of 14 years. In adulthood, the patient recalled that he had never felt comfortable as a girl, and his mother reported similar recollections. At age 25, the patient married a woman and adopted her children. The patient reported exclusive sexual attraction to females.
The present case report is a long-term psychosexual follow-up on a second case of ablatio penis in a 46 XY male. During an electrocautery circumcision at the age of 2 months, the patient sustained a burn of the skin of the entire penile shaft, and the penis eventually sloughed off. At age 7 months, the remainder of the penis and the testes were removed. By age 7 months, if not earlier, the decision was made to reassign the patient as a female and to raise the infant as a girl.
The patient was interviewed on two occasions: at 16 years and twice while in the hospital for additional surgery at 26 years of age. At ages 16 and 26, the patient was living socially as a woman and denied any uncertainty about being a female. During childhood, the patient recalled that she self-identified as a “tomboy” and enjoyed stereotypically masculine toys and games; however, the patient also recalled that her favorite playmates were usually girls and that her best friend was always a girl.
When seen at age 16, the patient had been admitted to the hospital for vaginoplasty. At that time, she wished to proceed with the further repair of her genitalia to make them suitable for sexual intercourse with males. At age 26, the patient returned to the hospital for further vaginoplasty.
Regarding the patient's sexual orientation, she was attracted predominantly to women in fantasy, but had had sexual experiences with both women and men. At the time of the second surgery, she was in a relationship with a man and wished to be able to have intercourse. The patient's self-described sexual identity was “bisexual.” After surgery at age 26 years, the patient developed a rectovaginal fistula. Within a few months of the surgery, the patient and her male partner separated for reasons other than the patient's physical problems. The patient subsequently began living with a new partner, a woman, in a lesbian relationship.
The psychosexual development of our patient was both similar to and different from the patient described earlier. Our patient differentiated a female gender identity; in contrast, the other patient had adopted a male gender identity after experiencing intense discomfort living as a female, apparently around the beginning of adolescence. At the time of interview at age 26, our patient was living with a man, but they subsequently separated and she began a new relationship with a woman; the other patient was married to a woman. Our patient had a “bisexual” sexual identity; the other patient had a “heterosexual” sexual identity. The patients were similar in that they had a childhood history of “tomboyism.” Our patient was predominantly sexually attracted to women; the other patient was exclusively sexually attracted to women. Our patient had sexual experiences with both women and men; the other patient had sexual experiences only with women.
The most plausible explanation of our patient's differentiation of a female gender identity is that sex of rearing as a female, beginning at around age 7 months, overrode any putative influences of a normal prenatal masculine sexual biology.
Because cases of ablatio penis in infancy are so rare and long-term follow-up data are scant, it is obviously impossible to know whether our patient or the previous case would be more typical of the psychosexual outcome in a larger sample of such individuals. However, our case suggests that it is possible for a female gender identity to differentiate in a biologically “normal” genetic male. At present, however, the clinical literature is deeply divided on the best way to manage cases of traumatic loss of the penis during infancy. Further study is clearly required to decide on the optimal model of psychosocial and psychosexual management for affected individuals.
The belief that Homo sapiens is absolutely dimorphic with the respect to sex chromosome composition, gonadal structure, hormone levels, and the structure of the internal genital duct systems and external genitalia, derives from the platonic ideal that for each sex there is a single, universally correct developmental pathway and outcome. We surveyed the medical literature from 1955 to the present for studies of the frequency of deviation from the ideal male or female. We conclude that this frequency may be as high as 2% of live births. The frequency of individuals receiving "corrective" genital surgery, however, probably runs between 1 and 2 per 1,000 live births (0.1-0.2%). Am. J. Hum. Biol. 12:151-166, 2000. Copyright 2000 Wiley-Liss, Inc.
Sex is just as complicated as humans are. What seems a rather straightforward concept—with an unequivocal answer to the proverbial delivery room question, “Is it a boy or a girl?”—is in reality full of nuances and complexities, just like any human trait. From a biological standpoint, the appearance of the external genitalia is only one parameter among many, including chromosomal constitution, the sequence of sex-determining genes, gonadal structure, the profile of gonadal hormones, and the internal reproductive structures.
Some official documents beside other information about an individual report the legal sex of a person. There are normally just two entries for this registration because it is based on the assumption that all people are born ore male or female and will identify as women or man. This has contributed to the invisibility of bodies and identities that are beyond such a binary model as they have been forced within the dichotomous categories. This article evaluates the impact of this binary sex and gender model on the fundamental rights of
people by looking to the recent Austrian and German Constitutional Courts rulings. It further examines how these Court rulings has been translated onto national law by looking to their compliance with the human rights standards.
In several states, the universal gender binary has been challenged by the introduction of an official third sex. This article explains that paradigm shift in Germany by analyzing the successful introduction of a third sex category in 2018. Historical legacies of gender variance in the pre-modern and modern states are compared with the contemporary (re-)introduction of a third sex. I show that intersex activists and their transnational advocacy at the United Nations reframed the discourse from medical correction to legal protection. This study offers critical insights into the changing dynamics and meanings of gender, state power, and social movements.
This Case Note discusses the recent judgment of the German Constitutional Court (1 BvR 2019/16) requiring either the legal recognition of sex categories beyond male or female, or the aboltion of sex registration requirements. The Note considers the Court's decision within the broader constitutional case law on gender identity, and explores both the progressive potential, and the future—perhaps unforeseen—consequences, of the ruling. The Case Note proceeds in three sections. Section A introduces the facts of the constitutional challenge, and sets out both the submissions of the complainant, as well as the reasoning of the Constitutional Court. In Section B, the Case Note explores the domestic law novelty of the decision, placing particular emphasis on the application of a constitutional equality framework to persons who experience intersex variance. Finally, in Section C, the Case Note contextualizes the judgment, situating the reasoning of the Constitutional Court within wider movements for transgender—otherwise known as trans—and intersex rights.
Nonconsensual gender-conforming interventions on children with intersex conditions have recently come under sharp criticism from human rights authorities within the United Nations, the Council of Europe, and the European Union, which have identified these interventions as violating children's rights to bodily integrity, privacy, and protection from violence, torture, and degrading treatment. Responding largely to requests for intervention from nongovernmental organizations, these authorities have called upon nations to reform their legal frameworks, both to prevent these rights violations and to redress them. To date, however, few nations have endeavored to prohibit nonconsensual gender-conforming procedures on children with intersex conditions, and none have enacted significant reforms of their frameworks to redress rights violations. This particular 'compliance gap' between human rights recommendations and law reform stems from a failure of national legal orders to formally recognize the scope of rights that are threatened by nonconsensual gender-conforming interventions-rights that are well-established as part of states' positive obligations to prevent physical and psychological harm to children. This article, therefore, analyzes the nature of the rights at stake and the importance of reporting human rights violations to generate direct calls for reform wherever violations occur. The article further analyzes how developments in Europe may have special significance for legal framework reforms-particularly if they facilitate judicial actions against national authorities through the European Convention of Human Rights, which may serve as a model for litigation elsewhere.
Mammalian sex determination is the unique process whereby a single organ, the bipotential gonad, undergoes a developmental switch that promotes its differentiation into either a testis or an ovary. Disruptions of this complex genetic process during human development can manifest as disorders of sex development (DSDs). Sex development can be divided into two distinct processes: sex determination, in which the bipotential gonads form either testes or ovaries, and sex differentiation, in which the fully formed testes or ovaries secrete local and hormonal factors to drive differentiation of internal and external genitals, as well as extragonadal tissues such as the brain. DSDs can arise from a number of genetic lesions, which manifest as a spectrum of gonadal (gonadal dysgenesis to ovotestis) and genital (mild hypospadias or clitoromegaly to ambiguous genitalia) phenotypes. The physical attributes and medical implications associated with DSDs confront families of affected newborns with decisions, such as gender of rearing or genital surgery, and additional concerns, such as uncertainty over the child's psychosexual development and personal wishes later in life. In this Review, we discuss the underlying genetics of human sex determination and focus on emerging data, genetic classification of DSDs and other considerations that surround gender development and identity in individuals with DSDs.
In 2006, the official journal of the American Academy of Pediatrics published a consensus statement on the medical management of intersex traits. Like the profes- sion’s first statement, the revision advised against unnecessary surgical modifications. Yet, such surgeries continue in contemporary US society, despite the professional stance and public critiques from intersex activists. Relying on sixty-five interviews with medical professionals, individuals with intersex traits, and parents of intersex children, this article examines why the practice continues. It then analyzes how medical professionals justify their medical interventions and shows that these justifica- tions convey a “covert necessity” to the parents of intersex children. Intersex bodies, situated on the threshold of the gender structure, are treated as “states of exception” where unnecessary medical interventions serve to uphold the sex binary. The article argues that medical interventions aimed at eliminating intersex traits will continue until society disentangles sex from gender, embraces gender fluidity, and no longer constructs intersex bodies as deviant or abnormal in order to disallow or erase them.
The management of disorders or differences of sex development (DSD) remains complex, especially with respect to parents' decision for or against early genitoplasty. Most parents still tend to disfavor postponing surgery until the child is old enough to provide consent.
To identify the determinants of parental decisions for or against early sex assignment surgery in DSD children, and in particular to assess the influence of contrasting behavior of health-care professionals and the information they dispense.
Preliminary data analysis from a focus group identified two broad approaches to counseling information. Two six-minute counseling videos were produced on this basis: one medicalized, by an endocrinologist, the other demedicalized, by a psychologist. Third-year medical students (N = 89) were randomized to watch either video as prospective parents and report its impact on their decision in a self-administered questionnaire.
Statistical analysis of questionnaire responses regarding decisions for or against surgery, including self-assessed impact of potential determinants.
Thirty-eight of eighty-nine “parents” (43%) chose early surgery for “their” child, including 27/41 “parents” (66%) shown the medicalized video vs. 11/48 (23%) shown the demedicalized video (P < 0.001). Desired aims for “their” child also differed significantly depending on the counseling approach viewed. Yet “parents” perceived their personal attitudes on a four-point Likert scale as the main influence on their decision although their “attitude” was significantly shaped by the video.
Parental decisions concerning early sex assignment surgery for DSD children depend on the health professional counseling received, to a degree of which neither parents nor professionals appear fully aware. In the absence of conclusive data for or against early surgery, there is a danger of medicalized or demedicalized parentalism resulting in irreversible and inadequately grounded decisions, regardless of the consensus statement of 2005 and the subsequent call for multidisciplinary management. Streuli JC, Vayena E, Cavicchia-Balmer Y, and Huber J. Shaping parents: Impact of contrasting professional counseling on parents' decision making for children with disorders of sex development. J Sex Med 2013;10:1953–1960.
The birth of an intersex child presents difficult medical and ethical issues to the attending physicians. Recently, these issues have become the subject of debates among doctors, psychiatrists, ethicists, sociologists, historians, and intersex activists. Largely absent in these debates, however, is any discussion of the legal ramifications of the medical treatment of intersex infants. This paper explores the legal implications of early surgical intervention in the treatment of intersexuality. The first part of the paper provides a summary of the history of the management of intersexuality. It describes the dominant treatment protocol, an alternative model being proposed by intersex activists and a number of physicians, and a middle ground approach advocated by the Constitutional Court of Colombia. It then explores the legal implications of the dominant treatment protocol on the intersex person's ability to marry and the treating physician's liability for failure to obtain informed consent, sex discrimination and invasion of the patient's right to privacy. This paper concludes that the current dominant treatment protocol may impair the legal rights of the intersex child as well as lead to legal liability for the treating physicians.
During the past decade, the dominant medical protocol for the treatment of intersex infants has come under heavy attack. One of the current debates centers on whether parents should be allowed to consent to nonmedically necessary genital surgery on their intersex infants. Some activists insist that a moratorium on all such surgeries should be imposed until these children reach the age of consent and can make their own decisions. Others believe that parents should be allowed to consent to these surgeries on behalf of their children, but maintain that informed consent procedures must be enhanced. Finally, some argue that the autonomy rights of the intersex infant require that courts review the parental consent to ensure that ethical standards are maintained. Thus far, the Constitutional Court of Colombia is the only high court to have rendered a decision on this issue. This essay discusses the Colombia decision and analyzes recent court decisions from Europe, Australia and the United States involving other sexual minorities to determine how these courts may resolve this issue if they are brought into the controversy. It concludes that courts may not be the ideal forum to resolve these issues because judges may render a decision based upon their own prejudices or stereotypes.
To assess the indications for late termination (> or =23 weeks' gestation) of pregnancy (LTOP), and to evaluate the rate of cases potentially diagnosable earlier.
Cases of singleton pregnancy ending in LTOP due to fetal abnormalities in our institute between 1/1998 and 12/2005 were retrospectively reviewed. The women were divided into two groups according to the sequence of events that led to LTOP: Group 1 - the first test indicating an abnormal finding was performed < or =23 weeks' gestation, but LTOP was performed >23 weeks; Group 2 - the first test indicating an abnormal finding was performed > or =23 weeks of gestation, or the fetal prognosis was not certain at the time of diagnosis and there was a medical recommendation to continue investigation.
There were 144 cases of LTOP (average gestational age 26.2 +/- 3.4 weeks). More than 70% of the cases were aborted because of chromosomal/genetic indication in Group 1; many of them could have been detected earlier in pregnancy, while about 80% of the cases were aborted because of structural abnormalities in Group 2 (p < 0.001). The structural anomaly could have been diagnosed earlier in 56 cases ( approximately 74%) if the pregnant woman had undergone an earlier anomaly scan. In another 13 cases (9%), fetal prognosis was not certain and continuing prenatal investigation was required.
The most common indications for LTOP were structural abnormalities (91 cases, 70%) which included the central nervous system (26 cases, 29%), cardiac abnormalities (24 cases, 26%), and multiple malformations (18 cases, 20%). The diagnosis of fetal anomaly could have been made earlier in more than half of the pregnant women undergoing LTOP.
This article is a long-term follow-up to a classic case reported in pediatric, psychiatric, and sexological literature. The penis of an XY individual was accidentally ablated and he was subsequently raised as a female. Initially this individual was described as developing into a normally functioning female. The individual, however, was later found to reject this sex of rearing, switched at puberty to living as a male, and has successfully lived as such from that time to the present. The standard in instances of extensive penile damage to infants is to recommend rearing the male as a female. Subsequent cases should, however, be managed in light of this new evidence.
Anne Fausto-Sterling s suggestion that the prevalence of intersex might be as high as 1.7% has attracted wide attention in both the scholarly press and the popular media. Many reviewers are not aware that this figure includes conditions which most clinicians do not recognize as intersex, such as Klinefelter syndrome, Turner syndrome, and late-onset adrenal hyperplasia. If the term intersex is to retain any meaning, the term should be restricted to those conditions in which chromosomal sex is inconsistent with phenotypic sex, or in which the phenotype is not classifiable as either male or female. Applying this more precise definition, the true prevalence of intersex is seen to be about 0.018%, almost 100 times lower than Fausto-Sterling s estimate of 1.7%.
The conditions once known under the umbrella terms intersex and hermaphroditism are now generally being called disorders of sex development in medical settings. The terms might seem synonymous, but in fact there are significant differences with controversial consequences. Hermaphroditism, an older term that can still be found in many medical writings, is vague, demeaning, and sensationalistic, conjuring mythic images of monsters and freaks. In the 1990s, activists advocated intersex to describe discordance between the multiple components of sex anatomy, but that word alienated many parents of affected children, as it suggests a self-conscious alternative gender identity and sexuality. Disorders of sex development also refers to intersex, but it deemphasizes the identity politics and sexual connotations associated with intersex, avoids the degradation associated with hermaphrodite, and instead highlights the underlying genetic or endocrine factors that cause prenatal sex development to take an unusual path. I argue that using disorder is problematic, because it implies medical conditions in need of repair, when some intersex anatomies, though atypical, do not necessarily need surgical or hormonal correction. I advocate a less pathologizing new term, divergence of sex development, that might reduce some of the conflict over nomenclature and satisfy intersex people, their parents, and their doctors.
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