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. …