Sexual difference and bodily integrity in Argentine Law

Why are bodily modifications codified in such restrictive and contradictory terms in the Argentine legal system?

This article is based on research over the last five years, investigating Argentine Law from a philosophical perspective to answer this question.

The area of greatest concern is the apparent gap between juridical and normative considerations of transsexual adults (people who identify with a different sex than that assigned to them at birth, and must receive a specific legal authorisation if they want to change their bodies) and of intersex children (those born with bodies — specially genitalia — that vary from male and female standard embodiments).

In the case of transsexual adults, Argentine Law severely restricts the possibilities of having access to bodily modifications. It makes them conditional on the result of a long and difficult legal process, where transsexuals have to fit the diagnosis and also present a particular story of their life that fits the expectations of the medical system.

In the case of intersex children, Argentine Law states that bodily modifications performed on intersex young children (who cannot give informed consent), with the purpose of ‘normalising’ their genitalia, are neither a legal nor a moral problem. But with bodily integrity a fundamental principle of Argentine Law, how can this difference be explained?

• From the perspective of Argentine Law, intersex bodies are not bodies yet — or, at least, they are not complete bodies. Intersexuality is considered to be a malformation of the flesh, which makes it impossible to consider something a sexed body.
• Sexed bodies are those that incarnate sexual difference — only male and female bodies are, in fact, considered bodies.
• Within this legal framework, sexual identity is a key component of personal identity and must be incarnated in a clearly male or female body.
• The status of intersexuality compromises not only the possibility of incarnating a sexed body, but also the possibility of developing a personal identity as a man or a woman.
• Surgical procedures intended to ‘normalise’ intersex genitalia are therefore justified because they grant full enjoyment of the right to identity.
• These procedures are said not to violate bodily integrity because beforehand there are, in law, considered to be not bodies, but only meaningless intersex flesh.

Surgeries performed on intersex children have been denounced by activists and scholars worldwide as mutilating practices and, therefore, as gross human rights violations. But they are legally and morally justified under Argentine and other national laws, as well as medical regimes, as genuine ‘embodying’ practices.

According to this interpretation, being a sexed body is one of the necessary conditions of personhood. So, if surgery takes place before personhood, then it cannot be viewed and condemned from a human rights perspective.

To bring such practices within an inclusive human rights framework would require the following changes in how human rights advocates understand embodiment and sexuality:

• Children’s sexual rights must be taken into account in any decision concerning their bodies.
• Sexual difference should be identified as a cultural ideal with normative force and effects, instead of a fact incarnated in specific bodies.
• Assumed connections between bodies and identities should be challenged, making room for the recognition of relationships between both ways of experiencing the self.
• Legal systems should recognise and respect the value of personal and cultural experiences, such as subjectivity, embodiment and pleasure, without making them subject to regulatory ideals of masculinity, femininity and identity.
• Visual, written and oral accounts of bodily diversity should be produced and disseminated, not only showing the mere existence of that diversity, but also celebrating it.
  

Mauro Cabral
Baigorri 646 X5001AJN, Cordoba, Argentina
maulesel@gmail.com