Despite many setbacks, transgender rights are more widely recognized than ever before in the United States. At the same time, though, another group has been fighting their own battles: intersex youth. Between a major settlement in late July and a new report examining intersex children, the laws regarding intersex newborn surgery could be changing across the nation.
Four years ago, Pam and Mark Crawford brought a lawsuit on behalf of their adopted child, M., against the doctors and hospital who treated him as an infant. M. was born intersex, meaning his anatomy didn't fit the traditional definition of male or female. According to the Intersex Society of America, about one in 2,000 babies are born with this condition. If it's noticeable at birth, doctors often consult with the parents and operate on the baby's genitalia. This surgery, called infant genitoplasty, was performed on M. when he was a 16-month-old in foster care, leaving him with anatomy that appeared more female.
Not long afterward, the Crawfords adopted M. Although they initially raised him as a girl, it became clear that he didn't consider himself female. In 2014, Mark told The Atlantic that M. "never gave us any indication that he was not a boy."
In 2013, his parents decided to take legal action, naming the hospitals involved in his surgery as well as the South Carolina Department of Social Services, which had custody of him at the time. According to BuzzFeed, they alleged that the operation caused M. "medical bills, pain and suffering, psychological damage, and impairment." Last year, one of the hospitals settled for $20,000. This July, the Medical University of South Carolina did the same, settling for $440,000. The hospital denies any claims of negligence but agreed to the payment as a way to "avoid the costs of litigation."
Intersex advocates view the settlement as a landmark case, not least because it was the first to confront intersex surgeries in the public eye. Around the same time, the Human Rights Watch (HRW) and interACT released a 160-page report analyzing the physical and psychological effects of these irreversible surgeries. According to the report, infant genitoplasty can come with side effects including "pain, nerve damage, and scarring," or they may require patients to undergo hormone replacement therapy for the rest of their lives — all in the name of changing the appearance of their genitalia.
The report also notes that there's little evidence that growing up with atypical anatomy causes distress, or that surgery prevents psychological damage. "The results [of cosmetic infant genitoplasty] are often catastrophic, the supposed benefits are largely unproven, and there are generally no urgent health considerations at stake," the report concluded.
Unfortunately, intersex babies are too young to choose surgery for themselves; that decision is up to their parents and a team of health care specialists. The report sums up the problem with this process as follows:
Surgeries intended to make a body conform to rigid gender stereotypes before the individual can express their sexual orientation or gender identity greatly undermine the right to free expression as the child develops into an adult with a surgically-modified body intended to fit social norms and not the individual’s sense of self.
However, it's clear that a growing number of people, from advocates to doctors, are raising questions about the practice. If momentum continues to build, intersex children may finally get the legal protection they deserve.