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Binarité sexuée et états d'intersexuation : de l'opportunité du maintien de la mention du sexe à l'état civil

Abstract : The sexed binarity is a truth which seemed, until now uncontested and undeniable. So that, put except for designations genrées present in the Civil code, this last considered to be useful to specify only the sexes which were to be registered on the acts of the civil status, were to be exclusively female or male. However, in practice, the exclusive membership of the one of the two devoted sexes is not a universal rule.Thus the states of intersexuation came to tarnish the table, by affirming that the sex was not a single entity but a block of various components, objective and subjective, which are not necessarily concordant between them. On the one hand, the physical intersexuation, being characterized by a variation of the genital development (V. G. D.) is analyzed like nonan agreement of the objective components of the sex, i.e., all those which depend on a biological determinism. In addition, the psychic intersexuation, otherwise called transsexualism, or dysphorie of kind, implies only one discordance between the objective components and the subjective component, the psychosocial sex. In other words, the person is biologically of a determined sex, but it feels to belong to the other sex.These two states have authority to call into question the place of the sex in the acts of the civil status on two levels. On a side, the people known as “intersexes” will make us wonder about the true value of the civil status if this last does not take into account the variation in its statings. This interrogation seems to be countered by certain practices medical, which, under the constraint at the same time of the parents and the binary company, assigns young people intersexes in the days which follow the birth, while at the same time any medical need does not come to justify this act. Other side, the people transsexuals call into question the bases of the state of the people and in particular the principle of immutability.Moreover, the certainty on the sex in Right are upset by the development of the basic rights resulting from an interpretation increasingly broader of article 8 of the C.E.D.H. Thus, rises from the right to the respect of the private life, the right to the personal blooming, which itself made possible the emergence of the rights relating to the identity, of which gender identity. They are divided into two entities with on the one hand, the right to construction of the gender identity and other, the right to its recognition.All these considerations made transfer the mission of the civil status, which does not fulfill only any more one identifying mission and of civil police for the benefit of the State and the general interest, but which becomes the privileged place of the identity claims, for the benefit of individuals. Consequently, the kind becomes allowed in Right, more especially as the C.E.D.H. positions in favour of the development of this second mission.Taking into consideration these element, we can affirm that a reform of the mention of the sex to the civil status is convenient, would be this only to avoid the probable judgments of the European Court. This reform should ensure the respect due to the private life of the people in a state of intersexuation so much by limiting the stigmatizing situations of which they could be victims. It could in addition, to take two forms according to whether it would be placed in favour of an abandonment or installation of a new mention. On the first assumption, a neutralization of the sex would be considered and could take two forms. The first is analyzed in a total neutralization, i.e., that no mention of the sex appears on the acts of the civil status. The second partial insofar as the sex would be a hidden mention, or would be rationalized, with the assistance of novel methods of identification, like biometrics.
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Submitted on : Tuesday, December 4, 2018 - 3:59:10 PM
Last modification on : Friday, August 5, 2022 - 11:01:34 AM


Version validated by the jury (STAR)


  • HAL Id : tel-01943871, version 2


Justine Content Fontana-Content. Binarité sexuée et états d'intersexuation : de l'opportunité du maintien de la mention du sexe à l'état civil. Droit. Université Montpellier, 2017. Français. ⟨NNT : 2017MONTD048⟩. ⟨tel-01943871v2⟩



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