//  7/7/17  //  Quick Reactions

Last week, three former United States (U.S.) Surgeons General called for an end to involuntary medical procedures on intersex babies and children.  After noting that the “U.S. government is one of many that have recently raised questions about infant genitoplasty,” they remark that “a consensus is emerging that concludes that children born with atypical genitalia should not have genitoplasty performed on them absent a need to ensure physical functioning.”  

They make their case on the basis of three “simple and compelling rationales”:

First, there is insufficient evidence that growing up with atypical genitalia leads to psychosocial distress .…  Second, while there is little evidence that cosmetic infant genitoplasty is necessary to reduce psychological damage, evidence does show that the surgery itself can cause severe and irreversible physical harm and emotional distress ….  Finally, these surgeries violate an individual’s right to … physical integrity, preservation of sexual and gender identity, and procreative freedom.

To understand the full meaning of this statement, it’s worth examining it through the lens of the U.S. government’s standards for awarding refugee status.  U.S. Citizenship and Immigration Services adjudicates refugee and asylum applications on the basis of legal guidelines.  A noncitizen can become a refugee by claiming persecution against their lesbian, gay, bisexual, transgender or intersex identity.  (Full disclosure: I wrote many of these guidelines and furthered a related project during my past life as a government employee.)  A noncitizen, very often a child, may also gain protection under refugee and asylum law if she is subject to female genital mutilation (FGM) in her home nation.  Furthermore, the U.S. government condemns FGM under any circumstances, including in the U.S. itself.

In other words, the U.S. government determined some time ago that if noncitizens are subject to harmful or violent treatment based on their intersex identities—and/or are at risk of genital mutilation—this constitutes persecution. 

If the government is willing to protect foreign nationals from such treatment in their countries of origin, then it should also take steps to ensure that its own citizens are not subject to similar harm.  Both domestically and abroad, the performance of genital surgery on children stems from reflexive and fearful adherence to traditional beliefs associated with gender.  For intersex people (and arguably, women, transgender people and others) to flourish, society must allow for the existence of identities on the spectrum between or outside of the conventional gender binary. 

One way the government could support progress in this area is by sloughing off reference to gender in official documentation related to birth.  As the U.S. Supreme Court reaffirmed last week, limiting the presumption of parenthood—and thus, the opportunity to be listed on their children’s birth certificates—to male spouses of gestational parents is inconsistent with the constitutional right to marriage.  In addition, Canada recently issued a health document for a newborn in which the “sex” category was listed as “U,” presumably for “unspecified.”  (As of now, however, the child has been denied a birth certificate without a gender designator.)  Measures such as these, by which federal entities reduce or remove categorization by gender at birth, may help those who cannot or do not wish to conform to the expectation of gender norms to maintain (in the words of the U.S. State Department) their “physical integrity and ability to live free.”


How Many Bullets Do You Need?

9/4/19  //  Commentary

Various jurisdictions that have banned large-capacity magazines define large-capacity differently. So how many bullets are enough under the Second Amendment?

Michael C. Dorf

Cornell Law School

Expedited Removals, Jeopardized Due Process

8/26/19  //  Commentary

The Trump administration’s revamped expedited removal system unsettles the rulings that upheld the expedited removal system against constitutional challenges.

Kyle Skinner

Harvard Law School

Leah Litman

Michigan Law School

The Trump Administration’s Assault on Fair Housing

8/19/19  //  Commentary

Today, the Department of Housing and Urban Development (HUD) published a proposed rule that would substantially limit enforcement of the 1968 Fair Housing Act. This rule is deeply flawed.

Olatunde Johnson

Columbia Law School

Michelle Aronowitz

Private Practice