First Do No Harm

By Harper Jean Tobin

Last December, South African newspapers reported that the nation's Human Rights Commission was considering legislation to regulate "corrective" surgery on intersex children. Pediatricians and adults who had had such surgeries told the Commission that, while intended to make intersex children cosmetically "normal," are irreversible and may not be in the best interests of children. (The South African Justice Department was also considering amending civil rights legislation to include intersexuality in the statutory definition of "sex."

While intersexuality -- any of a variety of conditions where children are born with mixed sex characteristics -- is not usually associated with serious physical health risks, beginning in the 1950s some doctors began to view intersex births as a "social and medical emergency." They presumed that such children would be mocked by peers, rejected by parents, plagued by identity problems, and unable to have a normal sex life. Their solution was to surgically alter infants' genitals to make them appear like "normal" boys or girls -- usually girls. This treatment model that infants' gender identities are a "blank slate," and they could therefore be assigned to whatever sex was most surgically convenient.

This treatment model has come under increasing attack from doctors, social scientists and an emergent intersex rights movement as lacking meaningful empirical support. Reports at a recent conference of the American Association For The Advancement Of Science outlined mounting evidence that gender identity is unalterable from birth. Thus, some intersex people have grown up intensely unhappy with their assigned sex, and as adults undergone gender transition.

"Corrective" genital surgery has often been performed on young children in an atmosphere of urgency and secrecy, with parents presented with no other real options but to consent to the surgery and to conceal if from their child. Performing this kind of surgery on small children may limit or destroy sexual function and sensation in adult life. While some intersex people are sterile from birth, these treatments can destroy reproductive capacity for others. The repeated operations often required may result in medical complications and have dubious aesthetic results. Sociologist Sharon Preve's recent study Intersex and Identity suggests that despite the intent to bestow "normality," treating intersexuality as a dangerous, pathological secret can leave children feeling suspcious and freakish.

Even before attracting official attention in Capetown, this issue came before the Colombian Constitutional Court in 1999. In short, the Court held that parents could not consent to cosmetic genital surgeries for children over five years of age, and applied a heightened informed consent standard parents of children under five. Basing these holdings on an implied constitutional right to define one's own gender identity, the Court called for dialogue among doctors and society, "to open a space to these people, who until now have been silenced."

In the US, there is now a vigorous debate among doctors, activists and legal scholars about intersex surgeries. Some have called for a complete moratorium on such surgeries before individuals can consent for themselves. And there has been considerable speculation as to the legal implications:

Will today's surgical candidates be tomorrow's plaintiffs? While we define medical negligence by the standard of professional consensus, here it is appears that that consensus is breaking down, rendering a definition of malpractice difficult at best. The question also arises whether parents should be able to consent for their children in these cases, when they may be reluctant to consider their child's future sexual and reproductive interests. There are indications that many parents have not been fully informed as to the risks or uncertainties involved. Should these operations be subject to the same heightened judicial scrutiny as involuntary sterilization of mentally impaired children?

A recent article by Kate Haas in the American Journal of Law and Medicine suggested that, when performed in a publicly-owned hospital, these operations could implicate Fourteenth Amendment rights. The right to bodily in integrity is the most clearly relevant, but the right to reproductive choice can also be involved. Inasmuch as sex assignment determines whom one can marry, the right to marry is also implicated.

Haas even suggested that some operations could fall under the 1996 Criminalization of Female Genital Mutilation Act, which makes it a crime to circumcise or excise any part of the labia or clitoris of a minor unless it is necessary to the minor's health. In contrast to the well-established evidence of the benefits (and sometimes the life-saving value) of reassignment surgery for many transsexuals, there is little if any evidence that surgery for intersex children is medically necessary. In that light, these procedures could even be considered medical experiments conducted on unconsenting children in violation of the international Nuremburg Code.

But this truly is all speculation: there appears to be no recorded US case law on these matters. Inevitably, there will be. Our law, which to date has not recognized the existence of intersexuality, must in time address these issues. Hopefully, it will "open a space" for intersex people in our society as well.

Intersexuals Fight Back:

http://www.alternet.org/story/10672/

The Tyranny of the Aesthetic - Surgical Violations:

www.ontheissuesmagazine.com/1998summer/su98coventry.php

First Do No Harm:

https://sites.google.com/site/completebaby/igm

A mainstream news article calls for an end non-consential surgical intervention:

http://www.msnbc.msn.com/id/6994580/

Sex Police:

www1.salon.com/health/feature/1999/04/05/sex_police/index.html

Making the Cut:

http://www.msmagazine.com/oct00/makingthecut.html