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Whose Body Is It Anyway? Affording Autonomy to Intersex Children

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There are certain parts of life that, largely, are expected by every human being. One aspect of life that most people expect is in regard to their external genitalia. When children are typically taught about their bodies early on in life, they are told that boys have penises and girls have vaginas and that, because they are a particular gender, they have that particular gender’s genitalia. For the majority of individuals, the inquiry on their own genitals ends with that. However, what if the child’s genitals differ, even slightly, from the rigid gender binary? This difference, however slight, means that the child is not considered biologically male or female, but intersex, despite how they may otherwise present.

This distinction creates unexpected, oftentimes greatly emotional issues for both the child and their parents that will be lifelong. Historically, this has been “corrected” by pressuring new parents to consent to complicated, dangerous surgical intervention on the child’s genitals soon after birth. This relates to another aspect of life that many people expect and, perhaps, take for granted: the right of privacy and, in connection to that right, the right of bodily autonomy. The “right to privacy” is an elusive one. From the time that the forefathers of this country established that Americans have the unalienable right to “life, liberty, and the pursuit of happiness,” lawmakers and judges alike have been attempting to make sense of the boundaries of this right and when exactly the government should or should not intrude.

Some of the earliest decisions in the United States court system regarding “privacy” are sexual or reproductive autonomy cases, deciding, amongst other things, that citizens have the right to purchase and use birth control , the right to terminate an existing pregnancy , and, more recently, the right to conduct a consensual sexual relationship with the party of your choosing, regardless of their sex , all free from government intrusion. These privacy rights are not only afforded to adults, of course, but to minors in the U.S. as well. Minors must, in a sense, be doubly protected from unnecessary intrusion; they must be protected not only from the state, but also from their parents if the parental intrusion in question is unconstitutional or illegal.

This is especially crucial to intersex children, who, in infancy, are not able to consent to any modification to their genitals and must live with the results of these modifications for the rest of their lives. Because children are taught from such a young age that their gender directly correlates to their body’s type of genitalia, there is an inherent sense of personal identity that is stripped from an intersex child when they cannot consent to this kind of surgery. This invokes serious concern about the constitutional rights of these children, particularly their fundamental (i.e., Constitutionally-guaranteed) right to privacy. What this paper proposes is simply a more balanced approach to treating children who are intersex based on their Fourteenth Amendment privacy and equal protection rights. By using existing privacy rights of minors as a basis, either the Court (whose primary interest in these types of cases must always be the best interest of the child) or the Legislature must implement more regulation of the process of treating intersex children while not completely overstepping the rights of the child’s parents.

This paper also proposes designating intersex minors as a constitutionally-protected class within the Equal Protection Clause of the Fourteenth Amendment. II. Being Intersex Intersexuality is defined as any variation or variations in sex characteristics developed in utero that “do not fit the typical definitions for male or female bodies.” It is essentially an umbrella term that applies to anyone who does not fall within the typical XY-male or XX-female chromosomal genotype. Intersex conditions are also known as Disorders of Sexual Development. Being intersex on its own does not necessarily mean that the external genitalia will not be able to fall into one of two ends of the gender binary, but it does mean that these chromosomal or hormonal differences can manifest themselves physically in variations of both primary and secondary sex characteristics of the body or may not manifest physically at all.

Being intersex is also not the rarity it was once considered to be: physicians estimate that between 1 in 1500 or 1 in 2000 children are born each year with some sort of intersex characteristic(s). Moreover, being intersex is largely not a health concern. Surgical intervention is almost never medically required outside of a situation in which a necessary physiological component (such as a urethral hole) is missing. Two of the most common medical conditions resulting from being intersex that do result in ambiguity of the external genitalia (and the conditions most commonly treated with surgery) are Congenital Adrenal Hyperplasia and Androgen Insensitivity Syndrome.

Every human being has adrenal androgens, which are hormones that regulate the development of male hormones and characteristics in either the testes or the ovaries. A person’s level of adrenal androgens changes over time and typically is higher in males than females once puberty is completed. Conversely, every person also has a varying level of estrogens, or female sex hormones. Congenital Adrenal Hyperplasia (CAH) involves a fetus with XX-chromosomes that is exposed to high levels of adrenal androgens during development in utero. This exposure leads to the masculinization of the external genitalia, commonly meaning an unusually large clitoris that more resembles a phallus, which is observable from birth. CAH was originally thought to occur more frequently in females, as male infants with CAH do not present an intersex appearance at birth, presumably because they are “supposed” to have a penis, but CAH occurs equally in both XX and XY individuals.

In males, CAH can involve extreme virilization, but without any sperm. In any case where a child has XX-chromosomes and CAH, the condition can involve the early onset of puberty, the failure of puberty to occur, excessive facial hair, menstrual irregularity, early pubic hair, or infertility. It is important to note that being intersex is a symptom of CAH, and not the cause. It is also important to note that CAH is the only “cause” of intersexuality that can be potentially life threatening and cause a medical emergency, which is why it is one of the most common causes of intersexuality that is treated with surgery. People with this condition, whether they are intersex or not, have problems producing enough cortisone, which is a hormone that helps the body respond to stress or other traumatic events.

The other cause of being intersex that is commonly treated with surgical intervention is Androgen Insensitivity Syndrome (AIS). This condition occurs in fetuses with XY chromosomes and also have to do with androgen (i.e., male sex hormone) receptors. Infants with AIS either have androgen receptors that are not fully functional, or they lack androgen receptors completely. This results in the development of either partially or completely feminized external genitalia. It can also impair or even entirely prevent the development of male secondary sex characteristics at puberty. This ultimately means that the person will grow up to have some or many female physical traits, but male genetic traits. Inversely, though, AIS does not significantly impair genital or sexual development in infants with XX chromosomes.

Therefore, AIS is only considered medically significant in a person’s life if they have an XY chromosome. AIS is divided into two main categories: complete AIS and incomplete. The “complete” category involves the complete prevention of the development of the penis and other male sex characteristics, meaning the person will almost entirely present as female. This category is very rare and is estimated to occur in 1 in 20,000 births. Those with incomplete AIS however, may have numerous physical male traits as compared to those with complete AIS who have none. Incomplete AIS does come with its own host of health problems outside of presenting as a female, including the failure of one or both testes to descend into the scrotum after birth, hypospadias (which is a condition in which the urethral opening is on the underside of the penis rather than at the tip), or male infertility. With either CAH or AIS, surgical intervention can potentially be necessary, especially if an important physiological aspect of the external genitalia is missing, such as a urethral hole. However, it is not the intersex conditions themselves that make the surgical intervention necessary unless they present some sort of health complication or serious hormone deficiency.

While surgical intervention is largely unnecessary for intersex individuals, the combination of the social stigma of being a “hermaphrodite” and a lack of medical information resulted in scores of unnecessary, invasive procedures. Originally, only one method of treatment existed for intersex infants. In 1950, a Johns Hopkins University psychologist named John Money developed the concealment-based model of intersex case management. Under the concealment method, doctors were required to stress to new parents of an intersex infant that the child should be assigned a sex soon after birth. Money’s method indicated that there was a certain period early on a child’s life (read: the first eighteen months) where they could be assigned a sex no matter their physical makeup and be able to be molded throughout the rest of their life to their assigned sex with no lasting consequences.

Money proposed that during this time, children were more susceptible to environmental stimuli, essentially trying to prove that nurture is stronger than nature in regards to gender. In assigning the sex, the concealment method’s most important factor was the appearance of the external genitalia of the child rather than their genetic makeup. The appearance factor is largely in comparison to a penis. One intersex rights group created the graphic known as a “Phall-O-Meter” to show the rubric of sorts that pediatricians, psychologists, and pediatric surgeons actually did reference to make the determination of the child in question’s sex. If the child’s enlarged clitoris or small phallus measured between zero and just below one centimeter, the child was dubbed female. If the phallus measured somewhere between 2.5 and 4.5 centimeters, the child was considered male. However, if the phallus fell within the 0.75 to 2.5-centimeter range, these genitals were considered unacceptable and surgery was performed. Physicians falsely believed that conditions resulting in intersexed genitalia, for example, CAH, could be managed with a one-stage procedure during infancy.

However, this was only one part of the “counseling” process between doctors and new parents. In pressuring these new parents to pick a sex and stick with it, the concealment method stressed to parents that what their new baby was experiencing was a rare abnormality that would lead not only to personal psychological difficulties in the infant, but to great strife for the family as a whole. Parents were informed that their failure to consent to the surgical “treatment” would be highly likely to result in depression, suicide, and “possible homosexuality” later on in life in the infant, and that the longer they waited to “fix” the problem, the more dire the situation would become and, subsequently, the child’s lasting trauma and “gender confusion.” The model also stresses that, by having this “quick fix” surgery, the child will avoid both psychological and medical problems later in life. Other than the initial consultation with the doctor to assign the infant’s sex, no other professional counseling is provided to the parents.

Moreover, under this concealment model of treatment, doctors were permitted to be selective in giving new parents pertinent, accurate information regarding the surgical intervention and on their child’s intersex condition in order to prevent “confusion and anxiety.” Doctors minimized what medical information they gave to parents regarding the actual condition that caused the child’s intersex condition in favor of pushing for infant surgery. This, of course, goes entirely against the long-held legal doctrine of informed consent in medical procedures. Once a sex is assigned and a surgery is performed to “reinforce” the assigned sex, the next step of the concealment method is for the parents to raise the child as their assigned sex and to never inform them of their intersex status or their surgery whatsoever.

Money’s method of intense pressure was based on his and, at the time, the scientific community at large, belief that any intersex condition in a child constituted a “social emergency” that needed to be rectified through a simple surgery, as these doctors explained to these new parents. Yet, though, as the years passed with physicians using this concealment-based method, the more apparent it became that a simple infant operation was not as simple as Money anticipated. More and more children with “corrected” intersex conditions required additional, painful surgical intervention as they entered into puberty and grew into adults, sometimes needing separate operations at each stage of development. A study was conducted in 2001 finding that the majority of the group of intersexed individuals studied who had cosmetic genital surgery in their infancy needed further vaginoplasty or clitoral surgery when they reached adolescence.

This is the direct opposite of the outcome that parents were promised by the doctors who pressured them into operating on their intersexed child. In the same vein only two years prior in 1999, a Urology journal urged that vaginoplasty as a surgery should not be performed in infancy and should, if the cosmetic procedure is performed at all, be postponed until the child reaches adolescence. Specifically, the article stated that genital surgery of that harsh of a nature in infancy “may be counter-productive by provoking scarring and fibrosis.” Moreover, alongside needing additional surgery, similar studies have shown that genital surgery on infants oftentimes results in sterilization of the genitals or a loss of sexual sensation. In 2003, the same group that conducted the 2001 study conducted another study, which found that women who had undergone clitoral surgery for their ambiguous genitalia during infanthood were “substantially” more likely to be aorgasmic than the study’s control group of women.

Cite this paper

Whose Body Is It Anyway? Affording Autonomy to Intersex Children. (2022, Jul 06). Retrieved from https://samploon.com/whose-body-is-it-anyway-affording-autonomy-to-intersex-children/

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