Gender Issues Relating to Children: California intersex surgery bill fails

BY GARRY WISE AND SIMRAN BAKSHI 
Reprinted from The Lawyer's Daily

In a highly controversial decision last month, a California senate committee voted against proceeding with a bill that would ban cosmetic genital surgery on intersex infants.

The term intersex refers to persons born with genitalia, chromosomes or reproductive organs that do not conform to a single gender. Far from unusual phenomenon, it is estimated that almost two per cent of the population is born with some form of intersex variation.

This bill, which would have been the first of its kind in the United States, proposed to defer surgical procedures on intersex children under the age of six, except for procedures deemed medically necessary by the Medical Board of California.

The bill proposed to permit intersex children the opportunity to be involved in the critical decisions made about their gender identity and health. Its advocates also argue that early “normalization” procedures can lead to incorrect gender assignments and permanent loss of physical sensation.

This is an emerging social policy issue that raises difficult medical, ethical and parental issues. 

The practice of genital surgery on intersex infants has long been criticized by the United Nations and advocates for the intersex community argue that the very notion that anatomically atypical sexual features must, by definition, be “fixed” is problematic at its core

The Canadian Bar Associate’s Sexual Orientation and Gender Identity Community Section (SOGIC) and Health Law Section recently put forward similar recommendations to the Standing Committee on Health in relation to its study of LGBTQI2S health in Canada. The CBA specifically expressed concern regarding the exemption provided for at subsection 268(3) of the Criminal Code as it relates to the rights of intersex children, which allows surgical procedures for the purpose of “normal reproductive functions or normal sexual appearance or function”.

As the CBA submissions explained:

We are not suggesting a complete ban on surgical procedures. We recommend amending the Criminal Code to postpone genital normalizing surgeries on children until the child can meaningfully participate in the decision – except where there is immediate risk to the child’s health and medical treatment cannot be delayed.

Opponents of the California bill claimed it was overly prescriptive in shutting out parents and medical professionals from decisions as to whether surgical intervention is in a child’s best interests. They argued the bill unfairly assumed that parents and doctors opt for surgery without due consideration of the risks and benefits to the child, and that no good would ultimately come from deferral to age six, since parents would then, in any event, be required to make these decisions on behalf of their still-infant children.

Is a child likely to suffer greater harm from early surgical intervention which occurs without the child’s input? Can a child legally provide true consent to an intersex surgery, pre-puberty? Is a child more likely to be adversely affected if surgery occurs before rather than after puberty? Should a parent be entitled to decide about a child’s gender identity without the child’s involvement?

The answer to these questions may well vary from child to child. Is a one-size-fits-all ban on intersex surgeries for all children under the age of six, then really the answer?

While the law must protect a child’s right to develop and to identify with one, both or neither gender; it must also be flexible enough to recognize that there will be circumstances where it may be in the child’s interest for the parent to decide on action earlier rather than later.

Beyond that, society’s “binary” understanding of gender must change.

Decisions regarding intersex surgery must be based on what is genuinely best for the individual child. They should not be based on discrimination, fear or stigma. 

This article was originally published by The Lawyer's Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

- Garry J. Wise, Toronto

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