Egale Canada, Morgan Holmes and Janik Bastien-Charlebois v. Canada (A.G.)

Ending the legal medical abuse of intersex infants


Introduction

The adjective ‘intersex’ refers to a person whose chromosomal, hormonal, or anatomical sex characteristics fall outside the conventional classifications of male or female. As a noun, ‘intersex’ refers to variations in chromosomal, hormonal, or anatomical sex characteristics that fall outside the conventional classifications of male or female.  Intersex is not a neutral biological fact, but a combination of biological facts and medicalization or pathologization by medical professionals. In other words, a medical authority’s perception of a person – often at birth – as intersex justifies medical interventions to “correct” the person’s body (see Holmes, 2022).

Intersex people born in Canada and in the vast majority of places around the world are still assigned male or female at birth; some intersex people are cisgender, and some are Two-Spirit, trans, nonbinary, and/or gender-nonconforming.  Not all intersex people consider themselves a part of 2SLGBTQI communities. However, the establishment of “acceptable” limits of male and female bodies is a manifestation of cisnormative and heteronormative beliefs about how bodies should appear and function as well as what types of sexual relationships people will want to have. We believe that Egale can play a role in protecting the rights and safety of all people marginalized based on their gender, sexuality, or sex characteristics in Canada and globally. In addition to our legal advocacy, Egale is working to empower intersex people and connect members of the intersex community: We recently launched the Intersex Community Hub for intersex people as well as the parents and caregivers of intersex children and are developing online training modules for medical professionals. 

Medical “corrections” of intersex bodies can take the form of invasive, unnecessary, and irreversible genital surgeries (sometimes referred to as intersex genital mutilation) performed on infants and children who are too young to understand or consent. Intersex genital mutilation can have devastating lifelong physical and mental consequences for the people subjected to it. It has been condemned by major human rights groups such as the United Nations, Physicians for Human Rights, and Human Rights Watch, as well as every intersex-led organization in the world. During the United Nations Human Rights Council’s Universal Periodic Review of Canada’s conformity to its human rights obligations, Canada was called upon to end the practice of intersex genital mutilation – a call Egale also made in our stakeholder submission for that review and in a submission to the United Nations Committee Against Torture.

Quick Facts

Case Status: Application filed

Case Name: Egale Canada, Morgan Holmes and Janik Bastien Charlebois v. His Majesty the King as represented by the Attorney General of Canada

Court: Ontario Superior Court of Justice

Egale’s Role:

Representation: Jennifer Klinck and Christopher Rusko, Juristes Power Law


Case Background

Egale has been at the forefront of the effort to criminalize intersex genital mutilation in Canada. In 2021, Egale and intersex scholars and activists Morgan Holmes and Janik Bastien-Charlebois filed an application with the Ontario Superior Court of Justice to challenge the constitutionality of exemptions in the Criminal Code that make intersex genital mutilation legal. 

The Criminal Code considers female genital mutilation (FGM) a form of aggravated assault (s. 268(3) of the Criminal Code). The Criminal Code also explicitly makes FGM a crime even when parents have consented to the surgery on their child’s behalf. However, it creates an exception to the ban on FGM for surgeries for the purpose of promoting “normal reproductive functions or normal sexual appearance or function” and allows parents to grant consent for those surgeries. That means that intersex infants are denied the protections afforded to infants whose genitals match medical professionals’ intersexist, cissexist, and heterosexist ideals of “normal” sexual and reproductive appearance and function.

Our Legal Arguments and What We’re Fighting For

Egale, Morgan Holmes, and Janik Bastien-Charlebois are asking the court to declare that the exemption to the law criminalizing FGM is unconstitutional, and that the exemption must be struck down.

The suit argues that the exemption violates intersex people’s rights to liberty and security of the person under s. 7, to freedom from cruel and unusual treatment under s. 12, and to equality under s. 15 of the Charter. The application points out that irreversible medical procedures on children limits their ability to make free decisions about their bodies and medical care later in life, a clear violation of liberty rights. It also imposes a binary sex on a person who may or may not identify with that sex later in life, and early surgery can lead to a reduced ability to later opt for gender-affirming surgery (Notice of Application, paras. 46-53).

Furthermore, the mutilation of a person’s genitals, which can, in addition to constituting severe physical harm in itself, cause physical and psychological harm throughout the person’s entire life, is in violation of the right to security of the person and bodily integrity (Notice of Application, paras. 60-65).

Finally, the suit argues that intersex discrimination falls under the protected ground of “sex” in s. 15 of the Charter; clearly, to allow the mutilation of intersex people’s genitals because they are intersex where all other genital mutilation is illegal is a violation of equality rights (Notice of Application, paras. 90-106).
In addition to domestic Charter concerns, the suit asks the court to find that by allowing intersex genital mutilation, Canada is in violation of its international obligations to protect its residents from torture and cruel, inhumane, or degrading treatment (also contained within s. 12 of the Charter).

Case Outcome

TBD


Supporting Documents


Support Our Legal Advocacy Work

Since our inception, Egale Canada has a long history of fighting legal cases and achieving legal victories. But we can’t do it alone. Donate to Egale to support us in making a world without homophobia, biphobia, and transphobia.