Identity and its protection as the aim and purpose of international human rights law: The case of (inter)sex identity and its protection

Abstract

The history of intersex people has demonstrated a life of invisibility with an imposed identity they did not choose. The lack of identity, or at least an autonomous one, led to a theoretical investigation into identity and how it has or has not been understood within international human rights. Intersex and sex has been used as an illustration of a multiplicity (often referred to as identities) to determine whether or not it has been protected and enabled through international human rights law. Before considering international human rights law, it was important to understand identity, what it means and how it is formed. This led to a hermeneutic inquiry into identity, in particular, from a Ricoeurian perspective. The hermeneutic inquiry leads to an understanding that what is called ‘identity’ centres on recognition of oneself and of others. This is a recognition of who one is and how one becomes one’s narrative identity. The becoming, however, develops through one of two interpretive horizons – vertical or horizontal – which may limit or expand one’s becoming. This becoming is understood through one’s narrative identity. The narrative identity reveals a temporal personal identity. Personal identity comprises of two forms or sources of identity: identity as idem (sameness) and identity as ipse (selfhood). How these are interpreted and implemented either limits or expands one’s becoming. When understood through the divesting of one’s personal identity from its narrative identity – identity as an identicality or status – it can be referred to as a problematic of identity. This problematic creates vulnerability of the human being, in particular, the loss of autonomy over who one is and how one comes to be. To prevent this vulnerability, one needs a moral identity living the good life of self-esteem and self-respect and the autonomy over one’s capabilities to speak, act, and narrate one’s life and be held imputable towards it. This enables relationality and respect toward others. Sex is commonly interpreted by international bodies within the binary which still leaves intersex people invisible. This is the result of understanding sex through the vertical interpretive horizon – as a sex status of male or female. As such, this required a study whether human rights were there to protect the status or the human person. The analysis revealed the basis and foundation of international human rights was the human person as a dignified being. The duty of state and society was to enable this human person so that they could freely and fully develop their personality. This would result in a dignified being. All the rights and freedoms were set for this purpose. For an intersex person to have a moral identity, they required the ability to freely and fully develop to form an identity. This came through the right to privacy. However, this development, and therefore one’s dignity, is limited when one’s well-being is interfered with or violated such as through sex-normalising treatment and other issues. It is therefore important to protect intersex people from such interference and violation to ensure their well-being. The development of who one is and the autonomy of how one comes to be enables recognition. This returns to the beginning – the purpose of identity. These represent the core issues for intersex people – the recognition of who they are and the autonomy of how the come to be.