Jasmyn Hardin, Associate Member, Immigration & Human Rights Law Review
Sex is a broad spectrum despite often being presented as a binary choice of male or female.[1] Approximately two percent of people worldwide and one in every 100 Americans have intersex traits.[2] People who are intersex have “reproductive or sexual anatomy that [does not] fit into an exclusively male or female (binary) sex classification.”[3] Since the 1960s, surgeons have performed harmful, unnecessary, and irreversible medical practices on intersex children.[4] Doctors and medical professionals often pressure parents into consenting to intersex surgery to “make their child ‘fit’ [in] the male or female box,” fearing that without it, the child will face future psychological trauma or harassment.[5] The surgery can cause a lifetime full of “lasting negative impacts on their health, sexual lives, psychological well-being, and their gender identity.”[6]
Gender-normalizing medical procedures on intersex children in the United States infringe upon their rights to health, dignity, bodily autonomy, and equality, as protected by the United Nations Convention on the Rights of the Child (CRC). Part II provides background on the evolution of medical practices on intersex children. Part III argues that a decision regarding gender-normalizing surgery must be postponed until the child can actively participate in the process. Finally, Part IV concludes by calling for the implementation of a federal law that bans gender-normalizing surgeries on intersex children until they are at least twelve years of age and can participate in the decision.
II. Background
Until the 1960s, parents and doctors often made their “best guess” when assigning sex at the births of intersex children.[7] Throughout the 1960s, medical norms shifted drastically based largely on the unproven recommendations of James Marion Sims, a prominent psychologist from the 1800s who became known as the “father of modern gynecology.”[8] Following Sim’s recommendations, doctors increasingly began to use surgical intervention as the “solution[] to the supposed ‘problem’ of intersex traits-internal sex organs, genitalia, or gonads that do not match typical definitions of male and female.”[9] Some intersex traits, such as atypical external genitalia, are evident at birth, while others, such as atypical chromosomal patterns or gonads, do not become apparent until puberty.[10] Gender-normalizing surgery seeks to cosmetically alter ambiguous external genitalia to reflect “societal expectations of binary-sexed bodies.”[11] These surgeries, often occurring during infancy and early childhood, may have several irreversible effects, “including but not limited to infertility, chronic pain, inaccurate sex/gender assignment, patient dissatisfaction, sexual dysfunction, mental health conditions, and surgical complications.”[12]
Gender-normalizing surgery is medically unnecessary for the “vast majority” of intersex children.[13] Research shows that the rationale for gender-normalizing surgeries is “matching parental desire, alleviating parental distress[,]” or a surgeon’s “subjective cosmetic preferences for the appearance of genitals[,]” rather than a scientifically proven correlation between ambiguous genitalia and a greater risk of psychosocial problems later in life.[14] Genital surgery is only medically necessary for rare cases in which the surgery resolves “significant functional impairment” or reduces “imminent and substantial risk of developing a health- or life-threatening condition.”[15] With growing scrutiny and research on the effectiveness and benefits of intersex surgeries, medical professionals have increasingly opted against performing “unnecessary early surgery” on intersex children.[16] However, just two U.S. children’s hospitals, Lurie Children’s in Chicago and Boston Children’s Hospital, have pledged to stop performing medically unnecessary surgeries on intersex children and publicly apologized for the harm done.[17]
International human rights commissions and organizations play a crucial role in “denouncing medically unnecessary…surgeries on intersex children” and protecting against the discrimination of all intersex people.[18] In April 2024, with the United States’ support, the U.N. Human Rights Council adopted a resolution recognizing that “all human beings are born free and equal in dignity and rights,” and aims to protect intersex persons against discrimination, violence, and harmful practices.[19] Although the resolution is not legally binding, it marked a significant victory for the “universality of human rights,” as it calls for U.N. member states to “address root causes, such as stereotypes, [the] spread of misconceptions and inaccurate information” and to aim for the “enjoyment of the highest attainable standard of physical and mental health” for intersex people.[20] On the heels of this landmark resolution, advocates and scientists have renewed calls for the end of medically unnecessary surgeries on intersex children, seeking “international resolve to address [human] rights violations.”[21]
III. Discussion
The practice of gender-normalizing surgeries operates under a misguided focus on treating the “psychosocial problem of intersexuality” rather than the “physical dangers of ambiguous genitalia.”[22] The U.S. Supreme Court has long recognized that most children, even in adolescence, cannot “make sound judgments concerning many decisions, including their need for medical care or treatment,” arguing that parents “can and must make those judgments.”[23] Children, bound by their parents’ decision, are left to suffer a lifetime of consequences that can result from gender-normalizing surgery.[24] Furthermore, many post-operative intersex persons emphasize that they would have declined the surgery if allowed to do so.[25] Intersex children who differ from society’s “oversimplif[ied]fundamental reality” of sex should not unwillingly be forced to fit into one of these boxes and endure the physical and psychological consequences.[26] Although a parent can legally consent to the medical procedure on their child’s behalf, absent a medical necessity, decisions regarding gender-normalization surgery must be postponed until the child is twelve years old and can actively participate in the process.[27] Making this change better preserves every individual’s right to human dignity, privacy, and bodily autonomy.[28]
A. International Law Protects Intersex Rights
The CRC is an international human rights treaty committed to upholding children’s rights, protecting them from violence, and ensuring healthy development.[29] Since its adoption in 1989, 196 countries have ratified the CRC, making it the most ratified human rights treaty.[30] The United States is the only U.N. member that has yet to ratify the CRC.[31]
The CRC enshrines a child’s right to the highest attainable standard of health, freedom of thought, and the right to have their voices heard.[32] Article 3 of the CRC establishes that the “best interests of the child shall be a primary consideration” for “all actions concerning children.”[33] Research shows that the parents’ and/or surgeon’s rationale for performing gender-normalizing surgeries is often driven by a desire to make the child “fit [in] the male or female box” out of fear that the child will face future psychological trauma or harassment—though no such correlation exists.[34] Opting for gender-normalization surgery without a medically necessary reason and without the input of the child acts contrary to the child’s “best interest” and is in violation of Article 3 of the CRC.[35]
Articles 12 and 24 recognize the right of a child who is “capable of forming his or her own views” to “express [their] views freely in all matters affecting the child” and to the “enjoyment of the highest attainable standard of health.”[36] Gender-normalizing surgery can result in a myriad of potential medical complications that can effectively alter one’s life forever, prohibiting one from ever reaching the highest attainable standard of health.[37] Postponing the unnecessary medical procedure until age twelve, when the child is old enough to actively participate, protects these rights by allowing the child to voice their opinion on a matter that impacts them most.
Outside of the CRC, only six U.N. member states have adopted laws prohibiting unnecessary medical interventions on intersex minors, and only two have specific sanctions for those who violate the prohibitions.[38] Protection for intersex people is broadly lacking on a global and domestic scale.[39]
B. U.S. Domestic Protections for Intersex Rights
The Affordable Care Act and Title IX protect intersex children from discrimination based on sex characteristics, but the United States has primarily left states with the responsibility to implement protections for intersex children.[40] The lack of federal protection subjects children to varying protections from state to state, who are “overwhelmingly fail[ing] to live up to key standards sets by the CRC.”[41]
In 2018, California became the first state to introduce a resolution that publicly supports the bodily autonomy of intersex children.[42] The resolution promotes the deferral of medical or surgical intervention until a child is twelve years old and can participate in the decision-making.[43] In 2019, a now-former California senator introduced SB 225, a bill that would have codified the principles in the resolution.[44] However, the senator eventually withdrew the bill in 2022 after it was clear he lacked the necessary votes for passage.[45] With a similar aim of deferring gender-normalizing surgeries until the child is old enough to participate in the decision, Rhode Island introduced HB 6171 in 2021, but lawmakers postponed it for further research.[46]
In 2023, the Transgender Bill of Rights was introduced in the U.S. House of Representatives, but given Republican opposition, the bill remains stagnant.[47] If enacted, the bill would ban the use of “forced surgery that violates medical ethics and human rights on intersex children and infants.”[48] Most recently, in December 2024, Congresswoman Sylvia Garcia of Texas introduced the Protect Intersex Children Act.[49] The act specifically aims to “prohibit medically unnecessary surgeries on intersex children under six years old in the foster care system.”[50] Though this act is narrowly focused on the protection of intersex children within the foster care system, the goal of preserving the bodily autonomy of intersex children until they have a chance to participate in the process can be expanded to intersex children more broadly. The passage of federal legislation is vital in establishing a framework for states to follow suit in protecting the rights of intersex children and their ability to participate in decisions regarding their health and bodily autonomy.
IV. Conclusion
Gender-normalizing surgery on intersex children must be postponed until a child is at least twelve years old and can actively take part in the consequential decision-making process. The practice of genital normalization surgery can be traced back to the 1960s, at which time it became increasingly used to solve the “supposed problem of intersex traits.”[51] The motivation behind gender-normalization surgery stems from a desire to match “societal expectations of binary-sexed bodies” rather than following scientific evidence.[52] This procedure can result in a lifetime of physical and psychological consequences that a child should not be unwillingly subjected to without having a voice in the decision.[53] Opting to proceed with gender-normalization surgery without allowing active participation from the child acts contrary to the “best interest of the child” and is in violation of Article 3 of the CRC.[54] The potential medical complications stemming from the procedure can alter one’s life forever and prohibit them from ever reaching the highest attainable standard of health guaranteed under Articles 12 and 24 of the CRC.[55] The implementation of federal protections, such as the Transgender Bill of Rights and the Protect Intersex Children Act, that postpone surgical intervention on intersex children until a child is at least twelve years of age and can actively participate in the process will uphold and protect a child’s right to health, dignity, and bodily autonomy protected under the CRC.[56]
[1] Claire Ainsworth & Nature Magazine, Sex Redefined: The Idea of Two Sexes is Overly Simplistic, Sci. Am. (Oct. 22, 2018), https://www.scientificamerican.com/article/sex-redefined-the-idea-of-2-sexes-is-overly-simplistic1 [https://perma.cc/5GHR-6PPQ].
[2] Intersex, Cleveland Clinic (July 19, 2022), https://my.clevelandclinic.org/health/articles/16324-intersex [https://perma.cc/8NTC-JF6P].
[3] Id.
[4] “I Want to Be Like Nature Made Me,” Hum. Rts. Watch (July 25, 2017), https://www.hrw.org/report/2017/07/25/i-want-be-nature-made-me/medically-unnecessary-surgeries-intersex-children-us [https://perma.cc/8XG3-7Z7H].
[5] First, Do No Harm: Ensuring the Rights of Children Born Intersex, Amnesty Int’l (May 10, 2017), https://www.amnesty.org/en/latest/campaigns/2017/05/intersex-rights [https://perma.cc/7ML2-6Z45] [hereinafter Do No Harm].
[6] Id.
[7] “I Want to Be Like Nature Made Me,” supra note 4.
[8] A Changing Paradigm, Hum. Rts. Watch, (Oct. 26, 2017), https://www.hrw.org/report/2017/10/26/changing-paradigm/us-medical-provider-discomfort-intersex-care-practices [https://perma.cc/P9Y6-PTMT]; Brynn Holland, The ‘Father of Modern Gynecology’ Performed Shocking Experiments on Enslaved Women, Hist. (Dec. 4, 2018), https://www.history.com/news/the-father-of-modern-gynecology-performed-shocking-experiments-on-slaves [https://perma.cc/D3FX-LNLB].
[9] A Changing Paradigm, supra note 8.
[10] “I Want to Be Like Nature Made Me,” supra note 4.
[11] Chase Strangio, Stop Performing Nonconsensual, Medically Unnecessary Surgeries on Young Intersex Children, ACLU (Oct. 26, 2017), https://www.aclu.org/news/lgbtq-rights/stop-performing-nonconsensual-medically-unnecessary-surgeries-young-intersex [https://perma.cc/8G2F-X5JY].
[12] Genital Surgeries in Intersex Children, Am. Acad. Fam. Physicians (July 2018), https://www.aafp.org/about/policies/all/genital-surgeries.html [https://perma.cc/RY8H-7752].
[13] Cathren Cohen, Surgeries on Intersex Infants are Bad Medicine, Nat’l Health L. Program (July 1, 2021), https://healthlaw.org/surgeries-on-intersex-infants-are-bad-medicine [https://perma.cc/MXA9-HV6J].
[14] Luke Muschialli et al., Perspectives on Conducting “Sex-Normalising” Intersex Surgeries Conducted in Infancy: A Systemic Review, 10 PLOS One 1371 (2024); Kyle Knight, Experts Urge End to Nonconsensual Intersex Surgeries, Hum. Rts. Watch (Sept. 4, 2024, 6:36 AM), https://www.hrw.org/news/2024/09/04/experts-urge-end-nonconsensual-intersex-surgeries [https://perma.cc/4RTW-N25G].
[15] Genital Surgeries in Intersex Children, supra note 12.
[16] “I Want to Be Like Nature Made Me,” supra note 4.
[17] Ashley Pria Persaud, US Hospital to Stop Harmful Intersex Surgeries on Children, Hum. Rts. Watch (Oct. 29, 2020, 2:14 PM), https://www.hrw.org/news/2020/10/29/us-hospital-stop-harmful-intersex-surgeries-children [https://perma.cc/J722-X868]; Kimberly Zieselman, Boston Children’s Hospital’s Change on Intersex Surgeries Was Years in the Making, InterACT (Oct. 23, 2020); https://interactadvocates.org/boston-childrens-hospital-intersex-surgery [https://perma.cc/9SVP-U66Z].
[18] Allan Ngari, African Human Rights Commission Affirms Intersex People’s Rights, Hum. Rts. Watch (Apr. 6, 2023, 3:03 PM), https://www.hrw.org/news/2023/04/06/african-human-rights-commission-affirms-intersex-peoples-rights [https://perma.cc/28AM-LN5S].
[19] G.A. Res. 55/L.9 (Mar. 21, 2024); A “Big Victory” for Intersex People and Their Rights, United Nations (Apr. 5, 2024), https://www.ohchr.org/en/stories/2024/04/big-victory-intersex-people-and-their-rights [https://perma.cc/E99P-JBZF]; Matthew Miller, Press Statement, On Intersex Awareness Day, U.S. Dept. State (Oct. 26, 2024), https://www.state.gov/on-intersex-awareness-day-3 [https://perma.cc/ZH9K-HCT4].
[20] A “Big Victory” for Intersex People and Their Rights, supra note 19.
[21] Kyle Knight, supra note 14.
[22] Kishka-Kamari Ford, “First, Do No Harm” – The Fiction of Legal Parental Consent to Genital-Normalizing Surgery on Intersexed Infants, 19 Yale L. & Pol’y Rev. 469, 469 (2001).
[23] Parham v. J.R., 442 U.S. 584, 603 (1979).
[24] Genital Surgeries in Intersex Children, supra note 12.
[25] Do No Harm, supra note 5.
[26] “I Want to Be Like Nature Made Me,” supra note 4.
[27] Genital Surgeries in Intersex Children, supra note 12.
[28] Background Note on Human Rights Violations Against Intersex People, United Nations Hum. Rts. (Oct. 24, 2019), https://www.ohchr.org/sites/default/files/BackgroundNoteHumanRightsViolationsagainstIntersexPeople.pdf [https://perma.cc/369E-RRQN].
[29] Callie King-Guffey & Jo Becker, How Do US States Measure Up on Child Rights?, Hum. Rts. Watch (Sept. 7, 2023), https://www.hrw.org/feature/2022/09/13/how-do-states-measure-up-child-rights [https://perma.cc/J3V8-ZN48].
[30] Frequently Asked Questions on the Convention on the Rights of the Child, UNICEF, https://www.unicef.org/child-rights-convention/frequently-asked-questions [https://perma.cc/L37B-MZWL] (last visited Jan. 26, 2025).
[31] King-Guffey, supra note 29.
[32] Convention on the Rights of the Child art. 3, Nov. 20, 1989, 1577 U.N.T.S. 3; 28 I.L.M. 1456 [hereinafter CRC].
[33] Id., art. 3.
[34] Do No Harm, supra note 5.
[35] CRC, supra note 32.
[36] Id., art. 12, 24.
[37] Do No Harm, supra note 5.
[38] Samantha Riedel, In All but Six Countries, Intersex People Are Not Protected from Medical Abuse, Them (Dec. 14, 2023), https://www.them.us/story/intersex-protections-around-the-world-report-medical-abuse [https://perma.cc/9434-56G2].
[39] Id.
[40] King-Guffey, supra note 29.
[41] Id.
[42] California: Resolution Affirms Intersex Rights, Hum. Rts. Watch (Aug. 28, 2018, 1:32 PM), https://www.hrw.org/news/2018/08/28/california-resolution-affirms-intersex-rights [https://perma.cc/V2X7-MVKV].
[43] Id.; Adam Beam, California Lawmaker Ends Bill to Limit Intersex Surgeries, AP News (Jan. 4, 2022), https://apnews.com/article/health-california-san-francisco-scott-wiener-265b152fda827aa4f1ec949d2a50ba00 [https://perma.cc/Q55E-XQVD].
[44] Scott Wiener Will Not Seek to Advance SB 225 – Intersex Civil Rights Legislation – Due to Lack of Votes in Committee, Press Release, CA State Senate (Jan. 5, 2022), https://sd11.senate.ca.gov/news/senator-wiener-will-not-seek-advance-sb-225-intersex-civil-rights-legislation-due-lack-votes [https://perma.cc/ETR3-NJ7X].
[45] Id.
[46] Intersex Legislation and Regulation, InterACT, https://interactadvocates.org/intersex-legislation-regulation [https://perma.cc/9UBN-F2KH] (last visited Dec. 5, 2024).
[47] H.R. 269, 118th Cong. (2023); Orion Rummler, Democrats Reintroduce Federal Trans Bill of Rights as GOP Tries to Advance Restrictions, The 19th News (Mar. 30, 2023, 10 AM), https://19thnews.org/2023/03/trans-bill-of-rights-federal-reintroduced [https://perma.cc/A3XF-W99J].
[48] Id.
[49] Congresswoman Sylvia Garcia Introduces Bill to Protect Intersex Children in the Foster System, Press Release, Congresswoman Sylvia Garcia (Dec. 16, 2024), https://sylviagarcia.house.gov/media/press-releases/congresswoman-sylvia-garcia-introduces-bill-to-protect-intersex-children-in-the-foster-system [https://perma.cc/2U5A-XATU].
[50] Id.
[51] A Changing Paradigm, supra note 8.
[52] Strangio, supra note 11.
[53] Id.
[54] CRC art. 3, supra note 32.
[55] Id., art. 12, 24.
[56] Congresswoman Sylvia Garcia Introduces Bill to Protect Intersex Children in the Foster System, supra note 49.
