American Journal of Law & Medicine

Who will make room for the intersexed?

I. INTRODUCTION

Between 1.7 and 4% of the world population is born with intersex conditions, having primary and secondary sexual characteristics that are neither clearly male nor female. (1) The current recommended treatment for an infant born with an intersex condition is genital reconstruction surgery to render the child as clearly sexed either male or female. (2) Every day in the United States, five children are subjected to genital reconstruction surgery that may leave them with permanent physical and emotional scars. (3) Despite efforts by intersexed people to educate the medical community about their rejection of infant genital reconstruction surgery, the American medical community has not yet accepted the fact that differences in genital size and shape do not necessarily require surgical correction. (4)

Genital reconstruction surgery may involve removing part or all of the penis and scrotum or clitoris and labia of a child, remodeling a penis or creating a vaginal opening. (5) While the initial surgery is typically performed in the first month of a child's life, genital reconstruction surgery is not only performed on infants. (6) Older children may be subjected to multiple operations to construct "functional" vaginas, to repair "damaged" penises, and to remove internal sex organs. (7) Personal accounts written by intersexed adults indicate that some children have been subjected to unwanted surgery throughout their childhood and teenage years without a truthful explanation of their condition. (8)

Genital reconstruction is rarely medically necessary. (9) Physicians perform the surgeries so that intersexed children will not be psychologically harmed when they realize that they are different from their peers. (10) Physicians remove external signs that children are intersexed, believing that this will prevent the child and the child's family from questioning the child's gender. (11) However, intersexed children may very well feel more confused about their gender if they are raised without any explanation about their intersex condition or input into their future treatment options. (12) The medical community's current practice focuses solely on genital appearance, discounting the fact that chromosomes also affect individuals' gender identities and personalities. (13)

Operating on children out of a belief that it is crucial for children to have genitals that conform to male/female norms ignores the fact that even the best reconstruction surgery is never perfect. (14) Genital reconstruction surgery may result in scarred genitals, an inability to achieve orgasm, or an inability to reproduce naturally or through artificial insemination. (15) The community-held belief that an individual's ability to engage in intercourse is essential, even without orgasm or reproductive capability, seems to govern the decision to perform genital surgery on many otherwise healthy, intersexed children. (16)

Despite the intersex community's rejection of genital reconstruction surgery, no U.S. court has examined the legality of performing these operations without the individual child's consent. (17) By contrast, Colombian courts have heard three such cases and have created a new standard for evaluating a parent's right to consent to genital reconstruction surgery for their minor children. (18) In response to the Colombian rulings and pressure from intersex activists, the American Bar Association recently proposed a resolution recommending that physicians adopt the heightened informed consent procedures required by the Colombian Constitutional Court decisions. (19)

This Article questions whether genital reconstruction surgery is necessary in the Twenty-first Century. Part II discusses the history and current preferred "treatment" for intersex conditions. Part III explains the groundbreaking Colombian Appellate Court decisions prohibiting parental consent for genital reconstruction on children over the age of five, and establishing a heightened informed consent doctrine for younger children. Part IV analyzes the protection that current U.S. law could provide to intersexed children. Part V explores how international law may influence decisions regarding the treatment of intersexed children.

II. A HISTORY OF COLLUSION: DESTROYING EVIDENCE OF AMBIGUOUS GENITALS

The term "intersex" is used to describe a variety of conditions in which a fetus develops differently than a typical XX female or XY male. (20) Some intersexed children are born with "normal" male or female external genitals that do not correspond to their hormones. (21) Others are born with a noticeable combination of male and female external features, and still others have visually male or female external characteristics that correspond to their chromosomes but do not correspond to their internal gonads. (22) Individuals who are considered intersexed may also be born with matching male chromosomes, gonads, and genitals but suffer childhood disease or accident that results in full or partial loss of their penis. (23) The loss of a penis may lead physicians to recommend that a boy be sexually reassigned as female. (24) Although the conditions differ, the commonality of intersexed people is that their gonads, chromosomes, and external genitalia do not coincide to form a typical male or female. (25) The current American medical treatment of intersexuals is to alter the individual's internal and external gonads to sex them as either clearly male or clearly female. (26)

Medical "treatment" of intersexuals has only been practiced in the United States since the 1930s. (27) During that period, the medical community determined that intersexed people were truly male or female but had not fully developed in the womb. (28) Hormone treatments and surgical interventions were meant to complete the formation of an intersexed adult into a "normal" man or woman. (29) By the 1950s, physicians were able to identify most intersex conditions at birth and began operating immediately on intersexed children to eliminate any physical differences. (30)

Prior to the treatment of intersexuality in the United States, intersexed Americans were treated as either male or female according to their dominant physical characteristics. (31) This strict male/female delineation is not used in all countries though. Other cultures have treated intersexuals differently, either as a third sex, neither male nor female, or as natural sexual variations of the male or female sex. (32) Alternatively, some societies still accept intersexed people without clearly defining their sex at birth. (33)

For instance, within small communities in the Dominican Republic and Papua New Guinea, there is a hereditary intersex condition known as 5-alpha reductase deficiency that occurs with a relatively high frequency. (34) This condition causes male children to be born with very small or unrecognizable penises. (35) During puberty, the children's male hormones cause their penises to grow and other secondary male sexual characteristics to develop. (36) Most of these children are raised as girls and begin living as men when they reach puberty. (37) These communities have accepted these intersexuals without genital reconstruction surgery. (38) In the United States, however, a child with the same condition would likely be surgically altered at birth, raised as a girl and treated with hormones to prevent the onset of male physical development. (39)

Genital reconstruction surgery became standard practice in the United States through the efforts of John Money, a John Hopkins University professor. (40) Money introduced the theory that children are not born with a gender identity, but rather form an understanding of gender through their social upbringing. (41) He based this theory on early research done with intersexed children who were surgically altered at birth and raised as either male or female. (42) Money's research found that children who were born with exactly the same genetic makeup and physical appearance fared equally well when raised as either females or males. He concluded that chromosomes did not make any difference in gender differentiation, and that children could be successfully reared as either sex irrespective of their anatomy or chromosomal make-up. (43) Money attempted to prove his theory by demonstrating that a "normal" male child could be successfully raised as a female with Bruce Reimer. (44)

In 1972, Money made public his experimental sex reassignment surgery on a twenty-two-month-old male child named Bruce Reimer who had been accidentally castrated during a routine circumcision. (45) The doctor who examined Reimer shortly after the accident believed that he would be unable to live a normal sexual life as an adolescent and would grow up feeling incomplete and physically defective. (46) Money's solution was to perform a sex change operation on baby Bruce and to have his parents raise him as a girl named Brenda. During Brenda's childhood, Money removed all of "his" internal reproductive organs. As Brenda approached puberty "she" was given female hormones to trigger breast development and other female secondary characteristics. (47) By removing Brenda's gonads, Money destroyed Brenda's reproductive capability. However, Money believed that by changing Brenda's sex, he would make it possible for her to engage in intercourse and marry. (48)

Early reports of Money's experiment claimed that the operation was successful and that Brenda was a happy, healthy girl. (49) Money's research was published throughout the world, convincing doctors that gender was a societal construct, and therefore intersexed children could be raised unconditionally as either male or female. (50) He believed that the only way to ensure that both the family and the child would accept the child's gender was if the child's genitals looked clearly male or female. Based on this theory, babies born with ambiguous genitals or small penises and baby boys who were accidentally castrated were surgically altered and raised as females. (51) Similarly, children born with mixed genitalia, gonads, and chromosomes were surgically altered to fit the definition of a "normal" male or female. (52) Following U.S. lead, other countries also began to practice routine genital reconstruction surgery on intersexed infants. (53)

Despite the widespread use of genital reconstruction surgery, there is no research showing that intersexuals benefit psychologically from the surgery performed on them as infants and toddlers. (54) No follow-up studies were ever done on adult intersexuals who underwent genital reconstruction surgery as children. (55) In the late 1980s, researchers attempting to disprove Money's gender identity theory began searching for Brenda, the subject of Money's highly publicized research. (56) The boy who was raised as a girl was now living as a man and had changed his name to David. (57) In 1997, Milton Diamond and Keith Sigmundson published an article rebutting the results of Money's famous gender research. (58) The publicity caused by Diamond and Sigmundson's article led to a biography of Reimer by John Colapinto. When Colapinto interviewed Reimer in 1997, Reimer admitted that he had always been certain that he was not a girl, despite being deceived by his doctor and his family. (59)

Reimer suffered emotional duress at all stages of his development, despite the corrective surgery that was meant to make him "normal." In his biography of Reimer, Colapinto describes the painful experiences that Reimer suffered throughout childhood and teenage years 60 During her childhood, Brenda did not fit in with her peers and felt isolated and confused. (61) As early as kindergarten, other children teased Brenda about her masculinity and failure to adopt "girl's play." (62) Although her kindergarten teacher was not initially told of her sex change, the teacher reported realizing that Brenda was very different from other girls. (63)

In addition to her failure to fit in socially, Brenda was constantly reminded that she was different by her parents and Dr. Money. During her visits to John Hopkins, Money would often force her to engage in sexual role-play with her twin brother in order to enforce that she was a girl and he was a boy. (64) Her genitals were scarred and painful as a child and she hated to look at them. (65) She became suspicious that something terrible had been done to her, primarily due to the frequent doctor's visits with John Money. During these visits, Dr. Money and his associates questioned Brenda about her genitals and her gender identity. (66) Rather than enforcing her gender identity, the medical intervention compounded the trauma caused by her medical condition.

One particularly traumatic procedure inflicted on intersexed children was not discussed in the biography of David Reimer. Intersexed children who have artificially created vaginas must undergo vaginal dilation procedures throughout their early childhood. (67) In order to ensure that the newly created vaginal opening does not close up, the child's parents must insert an object into the child's vagina on a daily basis. (68) This procedure has sexual implications that may be emotionally traumatic for many children.

As a teenager, Reimer rejected his assigned sex and refused to take his female hormones. He reported engaging in typically male behavior throughout his teens. He dressed as a male, chose a trade school for mechanics, and even began urinating standing up. (69) When Reimer's parents finally told him that he was born male, he immediately chose to adopt a male identity and changed his name to David. (70) He had a penis constructed and implanted, and underwent breast reduction surgery to rid himself of the breasts developed through estrogen therapy. (71) There is no procedure that can replace the gonads that were removed as part of Reimer's sex reassignment surgery. There is also no cure for the deception that he experienced upon learning that his parents and doctors had lied to him about many aspects of his life. (72) The trauma of learning about his condition caused David to attempt suicide on several Occasions. (73)

David is now married and has adopted his wife's children. (74) His story reads as a happy ending to many people. However, David could have avoided the gender dysphoria, loss of reproductive capability, and many years of therapy that resulted from genital reconstruction surgery. These experiences are not atypical in the intersexed community. According to many intersexed activists, the comfort of being raised in a clear gender role does not outweigh the pain of deception or the physical side effects associated with the surgery. (75)

Despite the emotional and physical scars that people like David Reimer face from genital reconstruction surgery, the majority of American physicians continue to encourage early childhood surgery. (76) In some cases, physicians have insisted on performing genital reconstruction surgery on teenagers without their consent. (77)

In 1993, an intersexed activist named Cheryl Chase began a support and advocacy group for intersexed adults called the Intersex Society of North America ("ISNA"). (78) Chase was born with a large clitoris, which was removed when she was an infant. (79) When she was eight years old, her internal gonads were removed without her knowledge or consent. (80) Because of the surgery, she is no longer capable of having her own children or obtaining orgasm. (81) Today, Chase and other advocates are vocal about their hope for a moratorium on the invasive treatment of intersexed children. …

Log in to your account to read this article – and millions more.