Georgetown Law Journal
November, 2003
Westlaw ©2003 cite as 92 GEO L.J. 129 reprinted with permission of the author

Note

*129 WHO DECIDES? GENITAL-NORMALIZING SURGERY ON INTERSEXED INFANTS
Alyssa Connell Lareau [FNa1]

page 5

talked about my body as if my hearing wasn't normal either, never talking to me, only about me. My earliest memories are about being different, a freak that needed to be fixed. I learned early that whatever was wrong with my body shouldn't be talked about. Constantly hearing, 'You're fine; you're normal,' never made me feel that way. [FN59]

Those in the medical community who still support infant surgery point to studies that demonstrate that many adults who were born with ambiguous genitalia are satisfied with their assigned sex. [FN60] However, these studies do not show that this acceptance of the assigned sex is in any way linked to the appearance of the adult's genitals. Further, similar studies of small groups of adults born with ambiguous genitalia have demonstrated the opposite result. [FN61] Either way, these studies are insufficient to provide the empirical support necessary to sustain the current treatment model. [FN62]

Contrary to the characterization of some who support surgery, intersex activists do not argue that intersex children should be raised as a third gender, but instead argue that assigning and raising a child as a specific gender does not *139 require that the genitalia be altered. [FN63] There is no evidence that children who do not have surgery and who grow up with ambiguous genitalia develop an ambiguous gender identity. [FN64] There are also first-hand testimonials from satisfied adults who did not have the surgery. [FN65]

Finally, given that the sex of rearing does not guarantee the same gender identity later in life, irreversible genital surgery should be avoided. [FN66] This rejection of assigned gender can happen to a person like John/Joan, who was subjected to infant surgery because of the accidental destruction of his genitals, to intersexed people, and to transgendered individuals who reject their assigned gender independent of the appearance of their genitals. The rejection of assigned gender is a recognition, "firmly in place by the time we are five years old," that involves the "deeply held conviction and deeply felt inner awareness that we belong to one gender or the other." [FN67] For people who later decide to reject the gender that was assigned to them, having had infant genital surgery makes reclaiming the opposite gender all the more difficult. [FN68]

It is difficult to adequately describe the grim reality for people who come to realize that they have been assigned to the wrong sex. Eventually, they "reach the point where their gender dysphoria dominates their lives to such an overwhelming extent that daily functioning becomes difficult, if not impossible." [FN69] To many the following happens:
Debilitating depression often sets in. Things that used to be important in their lives are no longer meaningful. The pleasures previously experienced from relationships or personal interactions fade. Even simple joys like listening to music, communing with nature, or engaging in creative endeavors may diminish to the point of extinction. Nothing seems to matter .... [They] eventually find that they cannot ignore or deny their gender dysphoria any longer; something has to change. [FN70]

Thus, being assigned the wrong gender is a painful experience that may be complicated by the financial and emotional costs of a physical and/or medical *140 transition to the correct gender. [FN71]

In conclusion, questionable social and psychological concerns regarding both the parents and the child are not sufficient to justify irreversible medical surgery. Moreover, the social and psychological evidence that does exist suggests that the surgical treatment model causes more social and psychological harm to the intersexed individual than it prevents.

B. SCOPE OF PARENTAL DECISIONMAKING AUTHORITY WITH REGARD TO GENDER ASSIGNMENT

As discussed above, advocates of genital-normalizing surgery justify it on social and psychological grounds rather than on medical necessity grounds. Given that the decision is not based on medical necessity, it is not clear that parents can consent to surgery. While the authority of parents to make decisions for their children is accorded great deference in many contexts, [FN72] the state may intervene if it believes that the parent is not acting in the best interests of the child. [FN73] For example, the state acts in this protective role by mandating school attendance, [FN74] by prohibiting child *141 labor, [FN75] and by barring the sale of pornographic material to children. [FN76]

Where parents are making decisions regarding infant medical treatment in other contexts, courts have established

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