Law no. 38/2018 of 7 August, which establishes the right to self-determination of gender identity and gender expression and the protection of sex characteristics, marked Portugal’s first step towards protecting intersex people. What should have earned Portugal a round of applause – being the second country, after Malta, to enact legislation on this matter – turns out to be far from praiseworthy, as the law contains contradictions and significant gaps. By making modifications to an intersex minor’s body and sex characteristics dependent on the moment when their gender identity is manifested, the law misrepresents intersex experiences and may fail to protect minors from violations of their bodily integrity. Beyond these legislative inconsistencies, implementation remains equally problematic. International human rights bodies and organisations have documented that intersex children in Portugal continue to undergo invasive and irreversible medical procedures before reaching the age at which they can provide free and informed consent. This paper examines the flaws in current legislation on intersex bodily integrity by situating Law no. 38/2018 within the Portuguese legal framework, considering other relevant domestic legislation, while aligning domestic law and policy with international human rights standards.
