Born This Way

08.27.151:00 AM ET

Should Parents Get to Decide a Child’s Gender?

Even as transgender rights progress, intersex children are still left in legal limbo.

In his January State of the Union address, President Obama became the first president to utter the word “transgender” in a speech, confirming what many are calling America’s “transgender moment.”

Not only is the word itself now part of common speech, transgender characters and personalities are everywhere in popular culture. From Caitlyn Jenner to Laverne Cox and Andreja Pejic, the omnipresence of transgender people in the media has brought visibility—and a needed measure of comfort—to those whose gender identities don’t neatly jibe with their sex at birth. Social media outlets have rushed to keep up. This year Facebook went from giving users a choice of 58 separate gender identities, including “pangender” and “transmasculine,” to letting users designate any “free-form” gender descriptions they wish.

The law has also been moving to protect transgender people from harassment and discrimination in employment and housing, while Medicare now covers “gender-confirming” medical procedures for seniors. California recently became the first state to foot the sex reassignment surgery bill for a transgender prison inmate, Shiloh Quine. While it’s too soon to gauge the extent of the Supreme Court’s recent gay marriage decision on transgender marital rights, the process toward full transgender rights is well underway.

But left out of all this good news are intersex infants and children, whose fates are often decided in pediatric surgical rooms before they have a chance to develop gender identities. No law protects these children against routine “normalizing” surgeries, which often leave lasting physical and psychological damage. In this “transgender moment,” the recognition and legal rights are going to those, like Quine, who demand protections. The ones too young to speak out on their own behalfs are left in the legal cold.

“Intersex” is an umbrella term referring to the roughly 1 in 2,000 people born with variations of sex anatomy that put them somewhere on the long continuum between male and female. Formerly called hermaphrodites, doctors now say they have “disorders of sexual development.” Often these involve “ambiguous” genitalia or genitals that are clearly male or female but still atypical, such as a very small penis or an enlarged clitoris. Only rarely is it medical necessary to perform operations on intersex children, but that has not stopped such procedures from going forward. While available data is incomplete, it appears that they occur at least 1,750 times per year, most commonly between early infancy and two years after the child is born.

It’s understandable that parents would be distressed upon learning that their newborns are intersex. Parents can also be forgiven for grasping at anything to protect their children from what they fear will be lifetimes of trauma. That is where doctors should come in with sound advice, and that is where the system cracks. “Doctors are telling parents that the procedures are necessary and should be done in the first year of life,” said Anne Tamar-Mattis, an intersex rights advocate and attorney. “Parents are telling me that they are being bullied and pressured; they are distressed and vulnerable and are not being given all of the information they need to decide what to do.”

Ironically, the term “gender identity” was coined by a famous professor of pediatrics and medical psychology, John Money, whose name the medical profession would now just as soon forget. In 1965, Money co-founded the Johns Hopkins University Gender Identity Clinic. He soon became the leading proponent of the theory that people are born gendered tabulae rasae and that their gender identities come from nurture, not nature. He also believed that being male or female required “convincing-looking genitalia,” and for that surgery and aggressive psychological conditioning were required.

His most famous case involved a non-intersex boy whose penis had been destroyed in a botched circumcision. Under Money’s guidance, the child was surgically remade into a female and raised as a girl. After Money touted his success with the child in 1972, he achieved international renown for proving the possibility of gender malleability. For the next several decades gender reassignment surgery on intersex infants became, in the words of Brown University’s Anne Fausto-Sterling, “the only acceptable practice.”

There was one key problem: The child never identified as a girl and suffered terribly. After undergoing more surgeries as a young adult to return to being a male, he fell into a depression and committed suicide in 2004. Money’s star dimmed out after that disaster was made public, but the practice of performing gender reassignment surgeries persists. Again, precise statistics don’t exist, but it appears that 8 to 20 percent of the kids on whom such surgeries are performed ultimately reject their gender assignments. One published review found that 10 percent of children whose penises were removed and who were crafted to become girls develop “gender dysphoria” and identify as males.

In a 2006 consensus statement, the American Academy of Pediatrics stopped advocating such surgeries, noting the risk to girls of having their clitorises cut for “cosmetic” reasons and stressing that intersex children can lead fulfilling lives without radical interventions. Six years later, the UN’s Special Rapporteur on Torture went much further, condemning unnecessary “forced genital-normalizing surgeries” on kids as a form of torture.

At present, Malta and Columbia are the only countries placing significant restrictions on such surgeries. Columbian law requires that the child’s “best interests” be put first, and allows parents to consent to the surgeries only after they have been fully informed of the risks and the availability of alternate treatment paradigms. After the child is 5 years old, the parents’ right to consent to surgeries ends. By that time, the child has been deemed to achieve gender “autonomy.”

At a minimum, the U.S. should follow the Columbian model. Only by requiring that parents be fully informed of the risks of such surgeries, including bad outcomes such as damage to sexual functioning and the possibility that the children will reject their sexual assignments, are these surgeries even remotely ethical or just. Just as we don’t allow parents to force their non-intersex children into gender reassignments, we should not permit parents to decide, willy-nilly, the sex of their intersex children. And after children have reached 5 years old, their bodies should be off limits entirely.

There is no Caitlyn Jenner for the intersex rights movement, but does not mean that intersex children should be without rights. In this, America’s transgender moment, we need to guard the rights of everyone to determine their own sexual and gender identities.

Eric Berkowitz is a human-rights attorney and the author of The Boundaries of Desire: A Century of Good Sex, Bad Laws, and Changing Identities (Counterpoint, August 2015).