Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics A Manual for National Human Rights Institutions In 2008, the Philippines Supreme Court confirmed the right of an intersex person to change the sex marked on his birth certificate from female to male. This was based on naturally occurring physical changes as this intersex person’s body matured.342 The Court acknowledged a role for self-identification, stating that “where the person is biologically or naturally intersex” it was reasonable to allow them to determine their own gender as their body matured.343 The Court considered that the intersex man had allowed “nature to take its course” and had not interfered with what “he was born with”.344 The April 2014 Indian Supreme Court decision affirming the right to gender recognition for hijras and transgender people may have relevance to intersex people, at least to the extent that some intersex people in India identify as, or are perceived to be, hijras.345 Even when identity details are corrected or updated in official documents, laws may place limitations on the circumstances in which those sex or gender details are recognised. The International Intersex Forum has highlighted the need to “to ensure the provision of all human rights and citizenship rights to intersex people, including the right to marry and form a family”.346 In this region, prevailing societal attitudes or other laws may limit the extent to which an intersex person’s sex is recognised, including whether they can marry as that sex. 347 CASE STUDY: ADVOCATING FOR AN INTERSEX MAN TO BE RECOGNISED AS MALE In Indonesia Alter Hofan, an intersex person, was assigned as female as a child. After having surgeries as an adult, his identity on documents was changed to male, without going through a legal process. When Alter married a woman, his wife’s parents attempted to annul the wedding by accusing him of document fraud. Alter was detained in a men’s prison but, after policeauthorised medical checks, was transferred to a women’s prison. He was charged with document fraud, which carries a penalty of up to seven years’ imprisonment. Eventually he was acquitted because of his intersex status. This decision was upheld on appeal to the Supreme Court.347 The National Commission on Human Rights of Indonesia (Komnas HAM) was one of the bodies advocating on behalf of this intersex man. The 2013 amendments to New Zealand’s Marriage Act clarified that a marriage is between two people regardless of their sex, sexual orientation, or gender identity.348 An intersex person is free to marry someone of any sex and the legality of the marriage cannot be questioned because of either partner’s intersex status. 82 342 Republic of Philippines v. Jennifer Cagandahan 2008; see International Commission of Jurists, Sexual orientation, gender identity and justice: A comparative law casebook, 2011, Chapter 6. 343 Gender, not sex, is the term used in this case. In this region, and internationally, the terms ‘sex’ and ‘gender’ are used interchangeably in many jurisdictions. 344 This contrasts with a 2007 Supreme Court decision in Silverio v. Philippines, 537 SCRA 373 (2007), that a transgender woman could not change her birth certificate, even after having undergone gender-affirming surgeries. 345 National Legal Services Authority v. Union of India, WP (Civil) No 604 of 2013; at http://supremecourtofindia.nic.in/outtoday/ wc40012.pdf. 346 Public statement by the Third International Intersex Forum, Malta, 1 December 2013; at http://oiieurope.org/public-statement-bythe-third-international-intersex-forum/. 347 S.E. Wieringa, ‘Discursive contestations concerning intersex in Indonesia: stigma, rights and identities’ in L.R. Bennett and S.G. Davies, Sex and Sexualities in Contemporary Indonesia, 2014, pp. 169-182. 348 Marriage (Definition of Marriage) Amendment Act 2013 (New Zealand).