By Laura Sundin
Babies born with sex characteristics that do not “fit typical binary notions of male or female” are as common as babies born with red hair. These newborns may have one of many types of internal or external abnormalities, coined “intersex” conditions, such as having both an ovary and a testicle or having a large clitoris that resembles a penis. Despite their prevalence, the community of children with intersex conditions was stigmatized by prominent psychologists in the 1960s who theorized that to be “normal” the child must grow up with “unambiguous genitalia” and a binary gender identity. This theory caused fear among the medical community. Pediatric surgeons even began referring to these children as “sexual freaks” who were “doomed to live in loneliness and frustration” unless surgically assigned a gender at birth. The societal mania of the 1960s led to current rigid patient care. Physicians commonly advise parents to subject their sexually variable newborns to medically unnecessary, irreversible surgery to conform “to a binary sex norm.” Last year alone, surgeons removed or reconstructed reproductive organs in approximately eight thousand newborns. However, over eighty percent of the time when ambiguous genitals are evident, doctors choose to assign the baby as a female because it is an easier construct. This is shocking given research indicating that the adult later identifies as female less than fifty percent of the time. That adult is left with a lifetime of physical suffering—like “incontinence, scarring, [and] lack of sensation”—and emotional trauma from loss of bodily autonomy. Further, medical research shows these cosmetic surgeries are medically unnecessary—the child is not physically harmed by waiting to have gender assignment surgeries until the child can reasonably consent. This Comment seeks to resolve the ethical dilemma of physicians’ freedom to impose their perception of normalcy over the nonconsenting patient’s best interests. It looks to recently proposed (yet rejected) California legislation calling for a temporary moratorium on intersex surgeries until the patient is six years old. The Comment suggests modifications to such legislation, based on medical practitioners’ concerns about maintaining individualized patient care. Ultimately, the Comment advocates for legislation protecting against intersex surgeries without the patient’s consent using legal arguments based on limiting parental authority; recent gender-identity related Supreme Court decisions; a comparison to female genital mutilation and nonconsensual sterilization; and a similarity to internationally denounced torture.
Laura Sundin, Comment, Imposing Identity: Why States Should Restrict Infant Intersex Surgery, 73 SMU L. Rev. 637 (2020).