Accommodating Intersexuality in European Union Anti-Discrimination Law

This article considers the relationship between EU anti-discrimination law and intersexuality. Recent changes in German legislation that recognise intersexuality have prompted consideration of sex and gender throughout Europe.

This article considers some of the disadvantages in the way the German legislation has been adopted and attempts to remedy them through the existent Recast Directive. The article rejects the current binary approach to sex and gender and recommends a broader interpretation that understands sex as a spectrum or continuum.

It concludes that anti-discrimination law may be a more suitable realm for questions of intersex to be raised than mandatory state documentation. Anti-discrimination law is preferable, it is submitted, because it offers individuals an opt-in model, which does not require any medical ‘proof’.

Similarly, anti-discrimination law offers activists a fluid site of resistance that is not based on medicine or the potential fixity of the birth certificate.