Introduction

 

The birth of a new baby should be a joyous occasion, parents will expect questions about baby’s weight, health etc. An inevitable question will be “is it a boy or girl?” When their new child is found to have an intersex state, parents are not prepared for this and are naturally upset and confused. In the modern era parents will receive counselling and guidance from medical practitioners on what to do next regarding the assignment of their baby’s sex.

The initial evaluation of the intersex child will be directed towards identifying causes for the ambiguity and ascertaining the sex of the child. It is recommended that corrective surgery is performed by eighteen months of age. The assignment of sex will consider genetic factors for example chromosomal sex. It will also consider gonadal status (e.g. the presence or absence of ovaries and testes), as well as genital factors such as the size of the phallus. A child may be assigned a sex which is not congruent with genetic sex because of genital abnormality such as a phallus which is considered too small for adequate function in adult life.

The assigned sex in the majority of cases is accepted by the intersex individual however in a small number of cases there is a rejection of the assigned sex, which can lead to legal as well as psychological problems later in life[1].

It is important to note that current English law does not recognise intersex. The law requires a person to be either male or female; the sex assigned at birth (and registered on the birth certificate) will be the gender they are legally recognised as[2]. English case law must be relied open for a definition of what is male or female, as no legislative definition exists. The most important case on the definition of sex is Corbett v Corbett (otherwise Ashley)[3] here Ormrod J set out his criteria for defining the sex of an individual. He stated that certainty as to sex was crucial for the law and that sex fixed at birth could not be changed. I will discuss in more detail later his judgement and show it does not give a conclusive answer when applied to many intersex individuals. Other case law may give a clearer definition of sex for an intersex person such as W v W (Nullity: Gender)[4]. Nevertheless an intersex individual as described above developing in a gender not recorded on the birth certificate will potentially have problems with their legal status. Problems may arise for example with entering the school of their choice or they may be prohibited from marrying the partner of their choice. Other important considerations would be the age at which they receive their pension, and what employment restrictions may be imposed on them. Also if accused of a crime in which their status as male (or female) has a direct bearing on the case such sexual assault, would their chromosomal status or their preferred gender be the most important factor for the courts. A related area is the question of imprisonment and would they be placed in a prison corresponding to their sex assigned on their birth certificate or corresponding to the gender into which they have developed. The intersex individual developing in a gender other than that recorded in their birth certificate has no mechanism to alter their birth certificate.

It is interesting that The Gender Recognition Act 2004 introduced a scheme which allows a person diagnosed with gender identity disorder to apply for a Gender Recognition Certificate. This does not replace or amend the original birth certificate but can be produced as proof of identity in any situation in which a birth certificate would be otherwise required. A similar scheme which entitles an intersex person to amend their birth certificate to the preferred gender would alleviate much of the problems I have mentioned above. The intersex individual could then demonstrate that their original sex recorded on their birth certificate had been incorrect, which would differ from a transgender person who had had their gender changed by surgical means.

The main dilemma here in regards sex assignment at an early age is that it can only take into account physical evidence. This can include important information such as the chromosomal makeup of an individual; it cannot however take into account the effect of the most important sex organ of all, the brain. I am referring to the relationship between gender and sex. Sex is the result of biological processes from which the reproductive system is developed. Gender however includes also behavioural and psychological characteristics appropriate to the culture in which the individual resides[5]. A definition of an individual’s gender must include their beliefs as to which gender they belong. It must also include observations regarding their behaviour and whether it conforms to the expected norms for males or females. Gender is related to sex in that much of the characteristics of gender roles have been constructed to reflect the perceived physical differences between males and females. There is great emphasis placed on an individual’s sex as a fact defined by biology, gender however is less easily defined as an individual’s behaviour must be taken into account and related to the cultural norms of the society in which he or she resides[6]. It is also important to note here that gender behaviour may in some cases change as the effects of hormones occur at puberty, some societies are more ready to accept that a gender may during one’s life[7]. There have been reports that the brain may show clear physical evidence of gender which can be observed, however these remain experimental and not universally accepted. At present the gender of an individual can only be evaluated when their behaviour and beliefs can be observed and taken into account.

In this paper I shall attempt to use case law, and were appropriate legislation to look at how the law views medical practice in relation to treatment of intersex individuals and ultimately how changes in practice may be used to improve the legal status of an intersex person.

Historical and Physiological Basis of Modern Medical Practice

 

The development of an embryo can be considered to require two distinct processes to occur to produce a male or female;

• Sex determination. The genetic process by which male or female gonads are developed
• Sex differentiation. The subsequent morphological and physiological changes which occur to give rise to male and female characteristics, for example external genitalia and secondary sexual characteristics.

Intersex is defined as a state in which discordance exists between sex determination and sex differentiation. The degree of discordance can be thought of as a spectrum from mild degrees of ambiguity of the genitalia to more severe cases which have both male and female genitalia (true hermaphrodite). No firm definition of what degree of ambiguity in genitalia is required for a diagnosis of intersex to be made. The medical term now used is disorder of sex development, as the term suggests not a disease process but rather an atypical developmental process.

In the Renaissance and the Middle Ages an intersexual person on reaching adulthood was permitted to decide to live as either a man or a woman; however they were not able to later change their decision[8]. The major change in medical practice occurred when techniques were developed allowing surgeons to alter genital appearance. Medical practice then focused on diagnosis not of the “true” sex but rather the most appropriate sex for adult life. A boy deemed to have a phallus too small to function adequately in adult life would be made into a girl. Central to this practice was the belief that a child was born gender neutral; they would develop either as a boy or a girl depending on how they were raised. This approach was advocated by John Money who argued that gender behaviour was a learned process not the result of a person’s biological makeup[9]. What is very surprising was that John Money based his whole hypothesis largely on his work with one patient. What is more surprising was that this patient was not born with intersex. The individual, who had been born male, had lost his penis due to a surgical accident. The surgeons felt he would not have a functioning penis as an adult and advised his parents to bring him up as a girl. He underwent surgery to reassign his sex as female. He was brought up unambiguously as female and began receiving female hormone treatment as an adolescent. The individual who became known as Joan/John reportedly grew up as a normal female and managed the transition to adulthood without problem. Money argued that if surgery and sex assignment were completed before the age of two and a half years the intersex individual would learn to be the gender assigned to them. This approach was adopted in Western medical practice from the 1960’s until the late 1990’s.

The outward appearance of the genitalia was made to match the assigned sex, in his view doctors should work to ensure that no doubts persisted regarding the child’s sex as this would result in serious psychological harm. Parents were told misleading (or incorrect) information about the child’s genitalia and it was recommended that the intersex individual was never told their medical history[10]. Clearly an approach which did not have as its central theme disclosure of all the facts and honesty to patients and families would not sit well with a modern medical profession. It is perhaps surprising that Money’s approach persisted for such a long time. There is research however which supports Money’s theory in relation to raising intersex children. These results support the belief that a person’s sexual identity is the result of social learning through differential responses of multiple individuals in the environment[11].

There were a number of criticisms of the medical approach advocated by Money, the first cause of doubt resulted from further research into the Joan/John case. It became apparent that Joan/John had become increasingly unhappy with her then female gender, finally rejecting it. She had then undergone gender reassignment surgery and was now living as a man John. Furthermore John had married a woman and adopted her children. Tragically John had later committed suicide following the breakup of his marriage. This prompted further research into the long term psychological outcomes of intersex children who had undergone early corrective surgery[12]. The results suggest that the majority do not reject their assigned sex, but as many as 13% may experience some degree of gender identity disorder[13]. Money’s approach clearly then produces a satisfactory result in the majority of cases, ethical questions still remain however. Another important question still remains as to the need for early surgery.

Research into intersexual people who did not have surgery suggests that the majority exhibited good levels of psychological health. This included individuals with micro-penis who if they had followed Money’s example would have had reassignment surgery and then brought up as female. All of the men studied felt male and were sexually functional[14]. This will call into question (in some cases at least) the need for surgery. I would suggest that if it cannot be clearly demonstrated that there is a benefit to the patient then it should not be ethically allowable. It is of interest then that a challenge to Money’s approach has come from adults who are objecting to surgery that had been performed on them as children.

One such group the Intersexual Society of North America (ISNA) have protested that although surgery had succeeded in producing male or female genitalia they had however experienced loss of sexual function, reduced sensation or even infertility. Others claim that decisions regarding surgery if any should have been left up to them to make in later life, some even suggest that they do not wish to be referred to as either male or female and prefer the term intersex[15]. Money has claimed these are militant groups who are not representative of most intersex people. The fact remains that in law a parent has the right to bring up their child how they please, this right would only be infringed if parent was deemed to be acting in a way that is harmful to the child. If it cannot be justified on the basis of the best interests of the child, then some of the complaints made by groups such as the ISNA may have a justifiable basis. I shall review this issue in more detail later.

 

The Modern Medical Practice

 

The arrival of a child with ambiguous genitalia is viewed as an emergency, parents are advised to delay registering the baby and avoid giving baby a name (or to choose an “ambiguous” name which can be assigned to either a male or female), counselling is offered as early as possible . The efforts are then made to make a determination of the sex of the newborn, as well as identifying any underlying genetic or medical condition contributing to the intersex state.

Modern medical practice as I have already stated would encourage correction of ambiguity in genitalia by the age of eighteen months. The surgical intervention is cosmetic, such as reduction of an enlarged clitoris. Some organisations have considered this surgery as unnecessary and a breach of the human rights of an intersex individual. My belief is that parents will wish their child to conform to the norm of male or female and that the ambiguity of the genitalia may cause considerable distress, which may then impact on their ability to bond and care for their child. Corrective surgery will impact on the child as relieving parents distress will allow them to function better as parents and is therapeutic on this basis. Parents are encouraged to bring up their child unambiguously as either male or female. I feel the ideal would be to encourage when possible a delay to such surgery until such a time when the intersex individual is able to contribute to the decision regarding sex determination. This would have the benefit of preventing the small number of cases in which the sex assigned in infancy is later rejected by the individual[16].

Some debate is now taking place in the medical profession regarding how best to treat individuals born with disorders of sexual development and who are considered to have an intersex state. Attempts are being made to improve understanding of these conditions and how best to manage them. The North American Task Force on Intersexuality first convened in 1999 to do just this. I plan now to look at the important issue of surgery in relation to timing and how this may affect an intersex individual. I shall try to use case law and statutes to discuss the possible approaches that could be considered. I shall concentrate on the ethical and legal basis for each approach and how it may affect the legal status of an intersexual later in life.

There are three main approaches to the timing of corrective surgery and gender assignment that have been considered

1. Early gender assignment and corrective surgery
2. Delay in gender assignment until child exhibits clear gender behaviour
3. Delay in gender assignment and corrective surgery until the individual is able to consent for themselves

Early Gender Assignment and Corrective Surgery

 

This is the traditional approach to treatment of a newborn with a disorder of sexual development advocated by John Money. I would like to describe a scenario of how a child born today may be treated. I would like to describe an enlightened couple, keen for their child to grow up with no restrictions. They wish for their children to make all the decisions regarding their future at a time when they are able to make these choices themselves. They are experienced parents who already have two children (one boy and one girl). On hearing that their third child has been born with a disorder of sexual development they are initially devastated, however after a short time they are able to regain composure and listen to the medical advice. They accept gratefully the offer of psychological support the information leaflets given by the hospital and are able to understand that further investigation is required to make a diagnosis of the cause of their child’s condition. They then ask questions about their child’s identity, they specifically would like to know is their baby a boy or a girl. The doctor tells them that analysis of baby’s genetic makeup will be urgently completed and they are advised to delay registration of baby’s birth until this information is available. They are also told that a specialist will come to examine baby and will give them guidance on how baby can be brought up, including what would be the most appropriate sex to assign to baby. Parents are upset but are determined not to make decisions which may restrict their child’s choices later in life. They decide to find out as much information as they can about disorders of sexual development.

The following day they are visited by the paediatric specialist, she informs them that their baby has congenital adrenal hyperplasia (CAH) and will require urgent treatment to prevent ill health. She informs them that their baby is unable to make steroids and furthermore this has resulted in high levels of male hormones. The paediatric specialist confirms that their baby’s genetic makeup is consistent with a girl and that investigations have confirmed that baby has ovaries and a uterus. The high level of male hormones however have caused enlargement of baby’s clitoris so that it resembles a penis and the vagina is small. The paediatric specialist reassures them that they can register their baby as a girl and give her an appropriate name. The paediatrician informs them that she will return later with a paediatric urologist who will explain what surgery will be required to reduce the size of the clitoris and the plan for surgery to the vagina later in life.

The family in the meantime have looked further into the condition CAH and understand that their baby is producing high levels of testosterone. They now understand that this may have had more far reaching effects on their baby and that some girls with CAH may later exhibit signs of gender identity disorder[17]. The parents resolve to ask the paediatric specialist more questions regarding the effect on their baby’s brain development. They also find out information about the planned surgery, they now know that surgery to baby’s clitoris will have no immediate benefit to their baby and may cause problems later in life. They also discover that vaginal surgery need not be carried out for many years.

The paediatric specialist returns with the paediatric urologist and together they confirm the diagnosis. They also set out their plan for early surgery and tell of possible complications which may arise. Parents then ask about the effects of androgens on their baby’s brain, to which the doctors respond by acknowledging the small risk but suggest early surgery is the best plan for baby in the long run. Parents respond by saying that they understand that a small number of girls with CAH exhibit gender identity disorder and ask about delaying surgery until their child is old enough to let them know which gender they believe themselves to be. Furthermore parents feel they are unable to consent to a procedure to be carried out on their baby when there will be no immediate benefit to their child and may limit their child’s choices later in life. The doctors inform the parents that this would be contrary to their normal practice; they resolve to leave parents to think further about their decision. They also agree to take legal advice and to ask the child safeguarding team to speak with parents.

The hospital psychologist speaks with family and counsels them about the diagnosis and treatment and how it may affect their child later in life. The safeguarding team asses the family and pronounce them to be a loving and caring family who look after their older children well and appear to care deeply for their newborn child.

After consultation with a legal advisor the paediatric specialist returns to the family and informs them that by law they must register their child, and she advises that the child is registered as a girl. She also informs the family that they cannot be compelled to consent to surgery but reiterates the medical belief that this would be their child’s best interest. The paediatrician also advises that their child is brought up unambiguously as a girl as this will prevent psychological problems later. Parents agree to register their child as a girl as choose the name Courtney. They however do not agree to bring her up exclusively as a girl. They intend to offer her opportunities to behave either as a girl or as a boy. They also refuse any surgery at this time.

Clearly the scenario described is not the usual one encountered in everyday practice; I hope it will however permit some detailed discussion regarding the legal and ethical questions I touched on in my introduction. I shall divide my discussion into three headings

• Welfare of the child
• Parental rights
• Legal status of the child

Welfare of the child

 

Clearly there is a dilemma here which will require careful consideration to resolve; at the heart of the case is a newborn child with intersex and she is unable to make a decision for herself. The traditional approach of early surgery and then to bring their child up unambiguously has been rejected by the family. The question of the baby’s welfare must be addressed by the team looking after her. Assessments of the family suggest that they have Courtney’s best interest at heart but is she at risk of significant harm. Would Courtney’s best interest be met by supporting family in their plan or would it be better to compel her family to follow the traditional medical approach to intersex.

The view of Courtney’s parents is that they wish her to be brought in a way that will not limit her choices later in life. This approach will leave as many options open for the child in later life. The family intend to bring their child up in a loving caring environment, and will try to find out from Courtney herself what her preferred gender is and obtain her views regarding surgery. This theory has been proposed by a number of legal scholars. John Eekelaar refers to an approach like this as “dynamic self-determinism”[18]. Eekalaar suggests that the majority of adults when asked how they would have liked to have been brought up, reply that they would have liked to decide for themselves when old enough how they would like to live their lives. It would require any decision regarding a child’s early life to be deferred to an age when they are able to contribute to the decision process. Decisions need not be deferred to adulthood but simply to a time when the child is old enough to give an opinion. An example of this can be parents’ decisions regarding the religion of their child. Some parents may opt to tell their child about religions available to them and leave it up to the child as an adult to decide if they believe in God. This approach would allow children the freedom to choose which religion if any to follow later in life. Some however may argue that if parents do not follow a specific religion and by example demonstrate the benefits of a religious life the child will not have sufficient information on which to base a decision. Others may say that it is fundamentally important to bring a child up as a Christian for example. An atheist would suggest that it was important to tell a child that religion and religious beliefs are false and encourage them not to follow this path. Within a society which allows religious freedom parents are able to follow whichever path they choose without fear or sanction. In a society which has strict rules governing behaviour and religion to choose not to follow the norms may lead to problems and in some cases danger of imprisonment or physical harm. The choices we make for our children must take into account the effect it will have on them, therefore parents should act in a way that promotes the best interests of the child. This positive approach of not simply avoiding bad choices, but actively seeking the best choice for a child is the cornerstone of the Children’s Act 1989 which I shall expand on further below. First however I would like to expand further my analogy drawn from religion. In the same way that some could argue a parent not giving adequate religious instruction to their child leaves that person unable to adequately appreciate how to follow a religious life. Could a child brought up ambiguously be later incapable of developing a clear gender identity?

Here the parents of Courtney wish to bring her up without a fixed gender and to later allow her to choose. Our society expects an individual to be either male or female; Money suggested that giving a child an ambiguous upbringing gave the risk of the child experiencing significant psychological harm. Parents plan is for Courtney to be registered as a girl, but leave choices regarding surgery and gender until later. It is clear that an older child of school age was presented the their classmates as being of indeterminate gender may experience teasing etc. However Courtney is a newborn baby and blissfully unaware of her genital appearance. I have already stated that research suggests that gender behaviour to a large extent is the result of social learning. If Courtney’s earliest interactions are ambiguous there is an increased risk that she will learn to behave ambiguously. Courtney’s parents are not attempting to produce a child without a gender identity; rather they intend to monitor Courtney’s behaviour and respond accordingly. Many parents choose to avoid gender stereotypical roles for their children, preferring to allow their boys to play with dolls or their daughters to play football if they wish. This would simply be a variation on this approach and would not necessarily lead to any harm. Beh and Diamond advocate that intersex children deserve an open future with regards to surgery and gender issues. They state that only surgery which a child requires to promote health should be undertaken in infancy[19]. They would support the parents’ view here that surgery could be postponed until later.

There may remain concern in the medical team that Courtney is at risk of significant harm. How then would Courtney’s welfare be protected? One option would be for the medical team to ask the court to rule on whether Courtney should undergo early surgery.

“Section 1 of the Children’s Act 1989 states that:

When the court determines any question with respect to:

1. The upbringing of a child; or
2. The administration of a child’s property or the application of any income arising from it,

The child’s welfare shall be the court’s paramount consideration”.

The Children’s Act is individualistic in its approach, Lord McDermott in the House of Lords explained the welfare principle in this way “it connotes a process whereby when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare”[20]. A court may decide that Courtney should undergo surgery as suggested by the medical team; this I feel is unlikely as there would be no benefit to the child now. The courts have viewed the welfare of the child to be intimately linked to that of their parents (more specifically the mother). The case of Re T (Wardship: Medical Treatment), a case in which the medical view to give possibly life saving treatment to a child was opposed by parents. The court decided it was not in the best interest of the child for the treatment to go ahead. Butler-Sloss LJ reasoned “the mother and this child are one for the purpose of this unusual case and the decision of the court to consent to the operation jointly affect the mother and son and so also affects the father. The welfare of the child depends upon his mother.”[21] Clearly Courtney’s parents have her best interest at heart and to go against their wishes is more likely to cause harm. If however parents had not appeared to be acting in Courtney’s best interest for example they had three previous children all girls and had expressed disappointment at having another girl. If when Courtney’s diagnosis was made known to them they had sought to reassign Courtney as a boy to gain the son they had craved. This would suggest that Courtney’s welfare was not the most important concern however this is not the case here. The approach of the Children’s Act is essentially utilitarian with the goal to promote the welfare of the child and how best to achieve this goal. The State would only need to intervene if risk of significant harm. The welfare principle is only loosely enforced with respect to parents, i.e. they would not expect every day to day aspect of Courtney’s upbringing to be closely scrutinised. They would largely be left to bring up their child in the manner they saw fit unless she was to show signs of distress later.

 

 

Parental Rights

 

The parent’s rights and the rights of other family members appear to be subordinated to that of the child by the Children’s Act 1989. I have mentioned above that the courts have protected parents’ rights by intimately linking them with their child. The Human Rights Act 1998 however protects the family’s right to bring up their children as they wish, unless there is a reason to infringe this right. The most important article concerning Courtney’s treatment is Article 8:

1. “Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Human Rights Act is directly enforceable against public authorities; the members of the medical team would need to prove that to interfere with the family’s decision was necessary in a democratic society. The burden of proof would lie with the medical authority to demonstrate that significant harm may befall Courtney if the present course of action is continued. Furthermore Section 3 of the Human Rights Acct 1998 states that all legislation if at all possible should be interpreted in line with the Human Rights Act unless specifically stated in the legislation. Therefore an order based on the Children’s Act 1989 could only infringe rights under the Human Rights Act if it is specifically stated in the Children’s Act 1989. The right to private and family life would support family’s decision.

It can also be argued that although Courtney has no specific rights as a child under the Human Rights Act, she does have the same rights as an individual. Article 8 then will protect her right to grow up as she sees fit. Therefore would support a decision which defers surgery on a minor if not medically needed at this time. Article 8 will also protect the right of another family who have a child born to them with intersex if they wish early surgery to go ahead. Here unlike the Children’s Act the welfare of children is not specifically protected.

How else can we resolve the issue of consent to genital surgery in a minor? In English Law it is only permitted to give consent for an operation on you. Unless the person requiring surgery is deemed incompetent to give consent, in such a circumstance a parent or guardian is able to give consent on their behalf. The parents claim that they do not feel they are able to consent as the procedure will offer no immediate benefit to their child. A number of commentators do not support this view, Sara Aliabadi argues that gender assignment surgery is trivialised by describing it as cosmetic. She feels such surgery can have a profound effect on the psychological makeup of an intersex individual. Her experience suggests that most intersexual adults who had surgery after birth are happy that they did so, and are happy with the results. She does concede however that there is a significant number who experience some side effects however[22]. The psychological benefits are undoubtedly true the question remains however if that benefit was experienced as a baby. I have mentioned that the psychological benefit may initially to other family members; however the baby may then receive the vicarious benefit on having a mother who feels happier now that her child has received gender assignment surgery. Other groups such as the ISNA continue to campaign that parents do not have the right to consent to a procedure which will afford not benefit at the time of surgery.

The way forward for the majority of parents with an intersex child may be to educate on the need for early surgery and for doctors to consider the wait until needed policy.

The possible conflicts between the utilitarian and rights based approach to welfare and rights must also be further explored. In the North American jurisdiction the substantive due process right to privacy has been used both as an argument for allowing early gender assignment surgery[23]. Here the parents right to privacy and the right to treat their family as they feel best should allow a parent to choose early surgery if felt appropriate. This law of privacy specifically forbids state interference in domestic matters. This substantive due process right to privacy extends to a person’s right to not have unsolicited invasion of their bodies. Some have advocated a moratorium on early gender assignment surgery in North America on this basis.

 

Legal status of Child

 

Every birth in England and Wales must registered, every newborn must be declared either male or female (Births and Deaths Registration Act 1953), the resultant birth certificate acts as proof of identity and must be provided for example when obtaining your first passport. The birth certificate of an individual cannot easily be amended; the gender can only be changed if proof can found that a mistake had been made on the original certificate. The Gender Recognition Act 2004 introduced a scheme whereby a person with a diagnosis of gender identity disorder can a apply to the Gender recognition Panel for a certificate which in effect can be used in place of a birth certificate in situations when a birth certificate would otherwise be needed. It does not however replace a birth certificate. This scheme is for persons who have undergone gender reassignment surgery as adults for treatment of gender identity disorder. In North America the American Psychiatric Association gives a definition of gender identity disorder which specifically excludes patients with physical intersex. The Gender Recognition Act 2004 does not specifically mention intersex. These are important considerations with relation to an intersex child as in the case of our hypothetical child Courtney. Our case is genetically female, has female gonads but has ambiguous genitalia. The medical view is that corrective surgery can make her external and internal genitalia concordant with her genetic and gonadal sex. She then be registered as female and as I have stated earlier the likelihood is that she will grow and develop normally. Her parents however are aware that some girls with her condition will experience some degree of gender identity disorder and wishing not to limit her choices in later life do not want to her to undergo gender assignment surgery now. Parents clearly believe that with the fullness of time she will declare her true gender and would like this to be registered as her gender. Unfortunately as I will try to demonstrate now if Courtney were to prefer to be a male she would not be able to alter her birth certificate and obtaining a gender recognition certificate may also be difficult.

First I wish to explore here the legal status of an intersex child with specific reference to their gender identity and to look at how the law may view the individual in the future. The position in United Kingdom and in North America (in fact much of the world) is that there is no statutory definition of what is male or what is female. Case law provides the answer to this conundrum.

The preeminent case in determining sex in the world is Corbett v Corbett (otherwise Ashley)[24]; here Ormrod J. Set out his criteria for determining the sex of an individual which had held that chromosomal, gonadal and genital criteria determined whether a person was a woman or a man in the context of marriage. He specifically rejected psychological sex as criteria for determining sex. If the three criteria were congruent then it was possible to determine the sex of an individual, he felt this was set at birth at the latest and could not be altered through surgical change or the acquisition of new organs. Though a case of first instance it has remained the test for determining sex of an individual. This test cannot resolve all cases as and Ormrod J suggested that if all the criteria for determining sex were not congruent then the genital sex should be given the greatest weight. He felt that the capacity for heterosexual sex was crucial for defining the sex of an individual. He also suggested that in the case of an intersex individual a more complex test may be required. In the case I have set out then the Corbett test is not appropriate. Also important is his assertion that the sex cannot later be changed. Courtney’s parents acknowledge that her true gender may not yet have become apparent. There are then two dilemmas here for the family what sex to register her and what to do if later if Courtney is later found to have a preference to be male. It is important also to mention that for many intersex children the matter can be very complex with no way of making the three criteria set out in Corbett congruent. In these cases the doctors involved will make an estimate as to which sex to assign the child. Later developments may see the appearance of sexual characteristics which may alter the sex of the individual. Moreover some intersexual states are not apparent at birth and again characteristics of the opposite sex may appear later in life such as at puberty.

Another case has allowed the legal status of intersexual people to be re-evaluated by Charles J in W v W (Nullity: Gender)[25] [26] , in this case the court was asked to consider the validity of a marriage between a male applicant and an intersexual respondent. A brief description of the facts in this case is helpful as it demonstrates what may happen to an intersexual as they develop. In this case the intersexual respondent was born of indeterminate sex. The child’s father decided to raise him as a boy. The respondent was later adopted, however with time the respondent shows feminine tendencies, preferring girls’ clothes and developing romantic attachment to boys. Later also developing female secondary sexual characteristics such as breasts. The adoptive father became alarmed at these developments and persuaded a doctor to give hormone treatment to counteract these changes. The respondent subsequently ran away from home. The respondent lived as a woman and later underwent gender reassignment surgery. The respondent later married and the question before the court was the marriage void. Charles J found that the Corbett test did not resolve the issue. He found the respondent was chromosomally male, gonadally intersex, genetically intersex, and psychologically female. To resolve this issue he set out six criteria for determining the sex of an individual. It is important to note first that these criteria are only applicable if the Corbett test is inconclusive. His six criteria were as follows:

1. Chromosomal factors
2. Gonadal factors
3. Genital factors
4. Psychological factors
5. Hormonal factors
6. Secondary sexual characteristics.[27]

He did not give clear guidance which of the six criteria should be given the most weight but hinted that psychological factors, i.e. behaviour and attachment to one gender would be the most important criteria. This judgement is important for our case in that Charles J appears to reject Ormrod J’s assertion that sex is fixed at birth and cannot be changed. It is clear that if Charles J had been asked to give the sex of the respondent as a child he would have pronounced him male. Charles J however found the respondent to be female. Courtney at present is not able to show any psychological attachment to a gender and following the other criteria can be considered female for the purposes of registration of her birth. If later she was to develop psychological factors which suggested a male gender the reapplication of the W v W test could then pronounce Courtney male.

Some further analysis of this case also raises another important question, was the respondent female from the outset but as was impossible to ascertain the brain gender of the individual at birth this could not be taken into account.

A further case in the Court of Appeal approved the judgement in W v W and also gives further useful information[28], in Bellinger v Bellinger analysis of the expert witness statements in the case is helpful. Two eminent medical experts Professor Green and Professor Gooren, referred to some research which suggested that parts of the brain of male to female transsexuals were a size in keeping with females and different to that of typical males. This raises the possibility that there is a male brain and a female brain and may offer a way of diagnosing gender at birth[29]. This clearly is not possible at the moment, however the fact remains that W v W and subsequently in Bellinger v Bellinger the courts have acknowledged that for intersex individuals sex cannot be fixed at birth, doctors make decisions on the most appropriate sex to assign a child, furthermore this sex may change as the intersex person develops. It is clear that only the sex of an individual can be decided at birth, their gender will develop with time this may be congruent with the original sex determined at birth but may differ. Some changes in legislation is required that reflects the difficult position some intersex individuals find themselves in.

The two areas which may be considered are the amendment of the Births and Deaths Registration Act 1953. This may be changed to allow the unusual status of the intersex person to be recognised. The change could allow the intersex child to be registered as intersex, with later ability to amend the sex when more information is available. An alternative approach could be that the sex entered on the birth certificate can be considered as a mistake and the birth certificate amended to indicate the true gender of the individual when it becomes apparent. This clearly would have been right for the respondent in the W v W case.

An alternate approach would be to amend the Gender recognition Act 2004 to allow intersexual people the ability to obtain a gender recognition certificate if their became different to that on their birth certificate. I suggest that an amendment of the Births and Deaths Registration Act 1953 would be more acceptable to an intersexual person, as I feel they would find this more appropriate. It is more accurate that their true gender has become clear, as they would not have had a gender change.

Summary of Early Surgery

 

I hope I have reviewed some of the issues associated with early gender assignment surgery. It is clear that there are a large number of ethical concerns not least the question of the validity of parental consent. It is likely for the time being that we will continue to defer to parents wishes regarding the timing of surgery, but it is my belief that encouraging parents to wait until child is older would be the most appropriate way to proceed. The right of the child for an open future with only essential decisions made early seems a more just approach.

 

Delay in gender assignment until child exhibits clear gender behaviour

 

I would now like to continue the scenario of Courtney to see how the future may develop. Let us consider if with time parents become aware that Courtney consistently rejects the dolls of her older sister preferring to play with her brother’s toys and to seek out the company of boys. By the age of five Courtney believes he is a boy. Parents then resolve to continue to call him Courtney as this name will be acceptable for a boy but are now ready to continue to bring him up as a boy.

Psychological evaluation finds him to be a happy child confident and secure within his family. When questions of his gender are discussed the psychologist reports that he is certain that he is a boy but has some understanding that he is different. He reports no problems at school and has many friends.

When parents are asked about gender assignment surgery they remark that in their opinion Courtney has clearly indicated a preference for the male gender. The paediatric urologist counsels the family that to reassign Courtney to the male gender would require the removal of Courtney’s ovaries and uterus and extensive surgery to fashion a penis. The family resolve to think further about this and continue to be monitored regularly.

They later report that Courtney’s conviction that he is male continues to grow with age. By the age of ten he has begun to form romantic attachments to girls and continues to exhibit male traits.

Shortly after his eleventh birthday mother reports signs of female puberty beginning with early breast developing as well as pubic and axillary hair growth. He becomes distressed at the possibility of female development. After discussion with the paediatric specialist a course of medication is prescribed to arrest puberty and a course of male hormone injections are started.

Competence to make decisions

 

Here I have tried to look at what may happen as Courtney matures. As Courtney possesses ovaries puberty may give rise to an increase in female hormones and changes which may lead to the development of female secondary sexual characteristics. A consequence of this may be a female phenotype as with the intersex respondent W in the W v W case. An alternative outcome may be the distress of a boy seeing his body changing to a female in front of their eyes. The possible options here are to allow nature to take its course or to intervene. Would Courtney be considered to be competent to be part of the decision making here. Who has the right to make decisions at this time?

Clearly at five parents feel he is able to decide that he is male they clearly do not feel he is able to decide on such matters as the timing of surgery yet. By eleven he is showing signs of a female puberty and this is causing him distress. Parents and doctors resolve to stop puberty and give testosterone. Is this appropriate as a person with gender identity disorder would be required to be at least eighteen years old before such procedures can be undertaken.

First if we look again at the judgement in W v W of the six criteria for assigning the sex (gender) of an intersex individual the psychological attachment and gender behaviour is considered the most important. In the case of intersex individual the courts have deferred to doctors to assign sex from birth. In this regard they can be considered to be a special case. The unpredictable nature of their development may give rise to unusual and possibly psychologically damaging situations. Furthermore to allow a doctor to assign a gender to a new born and then deny that right a few years later would appear to be absurd. At the age of eleven much more is known about Courtney and a decision can be made that more reflects his desires even if at this time he is still not deemed to be competent to make the decisions on his own. The welfare principle of the Children’s Act 1989 will still apply here clearly the distress caused by puberty for Courtney can be used to justify instigation of medical treatment. He also remains a minor and family retain the right to consent to medical treatment for him.

When a child such as Courtney would be considered to have capacity to consent to medical treatment? A brief look at the courts view regarding consent to medical treatment following Gillick[30] may be helpful here. The phrase Gillick competence has been used by commentators discussing the ability of a minor to make decisions usually regarding medical treatment and for these decisions to be upheld by the law. Lord Scarman commented that:

“ … the parental right yields to the child’s right to make his or her own decisions when he or she reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”

The exact age at which a child becomes Gillick competent is not stated rather that when sufficient maturity is reached then they can be part of the decision process and that they had the right to consent or to refuse medical treatment. Subsequent court judgements involving minors; have however appear to suggest that often this is not the case. For example in the case of Re R[31] which involved a troubled 15 year old girl with a history of manifested psychiatric disturbance including physically aggressive behaviour, who was refusing her antipsychotic medication. Assessments however at the time of the court case considered her to be Gillick competent. The judge did not agree, on the basis that such competence imported a notion of stability as part of the ability to make rational judgement. This is in contrast to how adults are treated where there decisions are respected no matter how irrational they appear. Lord Donaldson remarked that even if R had been competent, she had no authority to veto treatment as a Gillick competent minor. Lord Donaldson would remark at the end of the case that a child on becoming Gillick competent would become a “key holder” able to unlock access to treatment. The main point here is that a Gillick competent child giving consent to a procedure cannot be overruled by a parent. If a Gillick competent child refused treatment, then it is likely that an application to the High Court is required to override such a refusal.

The case of Re W[32] further illustrates this point; the case involved a sixteen year old girl suffering from anorexia nervosa. The local authority asked for guidance as to whether they could transfer her to a specialist unit for the purposes of force feeding her. At 16 she would have been able to consent to her treatment under section 8 of the Family Law Reform Act 1969, she however refused to do this. The court held that under section 8(3) of the Family Law Reform Act 1969 the law preserved the concurrent parental power to authorise treatment and it should exercise this inherent power to protect the welfare of a minor. On this occasion Lord Donaldson likened consent in a Gillick competent child to that of a “flak jacket” indicating that consent would offer protection from prosecution, presumably he felt his earlier analogy of the “key holder” was incorrect as this would imply both the opening and closing of the door to consent.

Notwithstanding these above cases another important issue should be mentioned here, the Gender Recognition Act 2004 requires a person suffering from gender identity disorder to be at least eighteen years old before gender reassignment surgery is allowed. It suggests that Parliament considered gender reassignment was sufficiently complex to require a greater degree of protection. Clearly however gender assignment and reassignment take place on minors in the field of intersex; I would suggest that again the medical requirement to treat would make intersex individuals a special case. The complex nature of procedures and the fact that treatment will affect the whole family should mean careful consideration is taken before any procedure is carried out. Consider this that if gender assignment surgery is carried out on a new born it is done with the consent of parents. Those parents are acting without knowledge of all the facts concerning their intersex child’s future development. With time more information regarding gender behaviour and later the wishes of the child can be taken in. In the field of gender assignment surgery the partnership between the intersex child, their family and the medical team can be considered to be a continuum; with the intersex individual assuming more control of the situation as they grow.

Brazier and Bridge[33] suggest we should embrace to idea of an evolving autonomy, in which a patient in partnership with parents and doctors assumes an increasingly important position in regards to decision making. I think this best describes the situation in paediatric practice.

Part of the problem with Gillick is that part of the process is that the minor must understand fully the implications of the medical intervention; secondly the courts are unwilling to act in a way that is not in the best interests of the minor. For example in the case of Re E[34] an intelligent boy with strong religious beliefs as a Jehovah’s Witness refused a blood transfusion. It was clear that he was of good understanding but the judge ruled that he was unable to fully understand death he was therefore made a ward of court and the transfusion given. Clearly again here an adult may have had no greater understanding of death but their view would have been respected. In the arena of intersex the complex nature of treatment would make decision making for anyone very difficult. Clearly whenever possible delay until a greater understanding of issues such as gender and the nature and implication of procedures such as removal of gonads etc should be the goal.

 

Delay in gender assignment and corrective surgery until the individual is able to consent for themselves

 

Continuing our scenario possible options for Courtney as he grows older are to continue with treatment to suppress female puberty and to take testosterone to promote a male development. He will require removal of ovaries and uterus and closure of vagina, also the fashioning of a penis if he is to be made to conform to a male phenotype.

His legal status as female will remain as at present there will be no legal way that his birth certificate can be changed.

Decisions regarding his future can be made by him alone once he reaches eighteen.

The equalisation of the status of men and women mean that there few areas were his status as a man may be challenged it is unlikely that then that a court will be asked to rule on his gender. He may however wish to apply to the court for a ruling on his gender perhaps to allow him to marry the spouse of his choice.

Other areas which may be of importance concern for example at what age to begin to draw a state pension.

Clearly however delaying into adulthood any possible decisions would confer a greater degree of legitimacy. Also if Courtney were to decide that he preferred to remain with ambiguous genitalia, in effect refusing further treatment this decision is more likely to be respected if made by an adult.

 

Summary

 

I have attempted to look at some of the key issues faced by paediatricians regarding intersex individuals as minors. I hoped to illustrate that the complex interaction between the medical team, the intersex individual and their family can be difficult. Most patients’ families are not as enlightened as Courtney’s family but I hoped they illustrated the possibilities. Educating them to the possibilities such as the concept of an open future for their children may allow them to have the confidence to wait before deciding on surgery. This would reduce the concerns expressed by some about the ethics of early gender assignment surgery for intersex.

I hope I have also highlighted the concerns regarding the legal status of intersex individuals. It appears that doctors play a key role in assigning the most appropriate sex for a newborn with intersex and as such their legal status is secure, provided that there is not a rejection of the assigned gender later.

The Judgement of Charles J in W v W both calls into question much of the judgement in Corbett v Corbett (otherwise Ashley) and the Corbett test itself. More importantly it calls for the law to acknowledge the inherent instability that may exist with regards to gender in an intersex individual. Parliament should seek to amend existing legislation such the Births and Deaths Registration Act 1953 to allow intersex individuals the ability to amend their birth certificates to reflect their true gender. Consideration as to whether the law should also be changed to recognise intersex as a third gender.

Further evaluation of the relationship between rights based and a utilitarian approach to children’s rights in this area is also required. Especially important is exploring the concept of informed consent for sex assignment surgery. I hope I have demonstrated that without all the facts it can be suggested that the criteria for informed consent is seldom if ever achieved in early gender assignment surgery.

 

 

 

 

 

 

 

Bibliography

 

Aliabadi, S., (2004-2005) You make me feel like a natural woman. William and Mary journal of Women and Law. 459

Aliabadi, S.A. (2004) Gender Assignment Surgery for intersexed infants: How the substantive due process right to privacy both supports and opposes a moratorium. Virginia journal of Social policy and law. Vol 12.1 170-196.

 

Beh, H., Diamond, M. (2000) An emerging ethical and medical dilemma: Should physicians perform sex assignment surgery on infants with ambiguous genitalia? Michigan Journal of Gender and Law 1-63.

 

Berenbaum, S.A., Bailey, J.M., (2003) Effects on gender identity of prenatal androgens and genital appearance: Evidence from girls with congenital adrenal hyperplasia. The Journal of clinical endocrinology and metabolism 88(3); 1102-1106.

 

 

Brazier, M., Bridge,C., (1996) Coercion or caring: Analysing adolescent autonomy. 16 Legal Studies 160 at pp. 10

 

Births and Deaths Registration Act 1953

 

Chau, P.L., Herring, J. (2002) Defining, Assigning and Designing Sex, International Journal of Law, Policy and The Family 16 (327).

 

Colspinto, J. (2000) As Nature Made Him: The Boy who was Raised as a Girl, New York: Quartet Books.

 

Diamond, M., Sigmundson, H.K. (1997) Sex reassignment at birth: Long term review and clinical implication, Archives of Pediatric and Adolescent Medicine 151 298-304

 

Eekelaar, J. (1994) The best interest of the child and children’s wishes: The role of dynamic self-determinism, 8 International Journal of Law Policy and Family 42-64.

 

Fausto-Sterling, A. (1993) The five sexes, March /April The Sciences.

 

Fausto-Sterling, A., (2000) Sexing the Body, New York: Basic Books

 

Herdt, G. (ed) (1996) The Third Sex, Third Gender: Beyond Sexual Dismorphism in Culture and History, New York: Zone Books.

 

Migeon, C.J. et al. (2002) Ambiguous Genitalia With Periscrotal Hypospadias in 46XY Individuals: Long Term Medical, Surgical and Psychosexual Outcome. Pediatrics 110;e31.

 

Money, J. (1975). Ablatio penis: Normal male infant sex-reassignment as a girl. Archives of Sexual Behaviour, 4, 65-71

 

Money, J. (1968) Sex errors of the Body, Baltimore: John Hopkins University Press.

 

Slijpe, F.M.E., Drop, S.L.S et al, (1998) Long Term Psychological Evaluation of Intersex Children. Archives of Sexual Behaviour; vol. 27, No. 2, 125-144.

 

Valdes, F. (1994) Queers, sissies, dykes, and tomboys: deconstructing the conflation of “sex”, “gender”, and “sexual orientation” in Euro-American law and society, California Law Review 3-128.

 

 

 

Cases

 

Bellinger v Bellinger [2001] EWCA Civ 1140, [2002] 1 All ER 311

 

Corbett v Corbett (otherwise Ashley) [1970] 2 All ER 33, [1971] P83, [1970] 2 WLR 1306.

 

Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112 (HL)

 

Re E (a minor) (wardship: medical treatment) [1993] 1 FLR 386

 

Re KD (A Minor) ( Wardship: Termination of Access) [1970] AC 668, at pp 710-711

 

Re R (a minor) (wardship: consent to medical treatment) [1991] 4 All ER 177 111

 

Re T (Wardship: Medical Treatment) [1997] 1 FLR 502

Re W (a minor) (wardship: Consent to medical treatment) [1992] 4 All ER 627 CA 221n60

 

W v W (Nullity: Gender) [2001] Fam 111, [2001] 1 FLR 324.

 

[1] Slijpe, F.M.E., Drop, S.L.S et al, (1998) Long Term Psychological Evaluation of Intersex Children. Archives of Sexual Behaviour; vol. 27, No. 2, 125-144.

[2] Births and Deaths Registration Act 1953

[3] Corbett v Corbett (otherwise Ashley)- [1971] p83.

[4] W v W (Nullity: Gender) [2001] Fam 111, [2001] 1 FLR 324.

[5] Valdes, F. (1994) Queers, sissies, dykes, and tomboys: deconstructing the conflation of “sex”, “gender”, and “sexual orientation” in Euro-American law and society, California Law Review 3-128.

[6] Chau, P.L., Herring, J. (2002) Defining, Assigning and Designing Sex, International Journal of Law, Policy and The Family 16 (327).

[7] Herdt, G. (ed) (1996) The Third Sex, Third Gender: Beyond Sexual Dismorphism in Culture and History, New York: Zone Books.

[8] Fausto-Sterling, A. (1993) The five sexes, March /April The Sciences.

[9] Money, J. (1968) Sex errors of the Body, Baltimore: John Hopkins University Press.

[10] Beh, H., Diamond, M. (2000) An emerging ethical and medical dilemma: Should physicians perform sex assignment surgery on infants with ambiguous genitalia? Michigan Journal of Gender and Law 1-63.

[11] Colspinto, J. (2000) As Nature Made Him: The Boy who was Raised as a Girl, New York: Quartet Books.

[12] Migeon, C.J. et al. (2002) Ambiguous Genitalia With Periscrotal Hypospadias in 46XY Individuals: Long Term Medical, Surgical and Psychosexual Outcome. Pediatrics 110;e31.

[13] Slijpe, F.M.E., Drop, S.L.S et al, (1998) Long Term Psychological Evaluation of Intersex Children. Archives of Sexual Behaviour; vol. 27, No. 2, 125-144.

[14] Diamond, M., Sigmundson, H.K. (1997) Sex reassignment at birth: Long term review and clinical implication, Archives of Pediatric and Adolescent Medicine 151 298-304

[15] Fausto-Sterling, A., (2000) Sexing the Body, New York: Basic Books

[16] Money, J. (1975). Ablatio penis: Normal male infant sex-reassignment as a girl. Archives of Sexual Behaviour, 4, 65-71

[17] Berenbaum, S.A., Bailey, J.M., (2003) Effects on gender identity of prenatal androgens and genital appearance: Evidence from girls with congenital adrenal hyperplasia. The Journal of clinical endocrinology and metabolism 88(3); 1102-1106.

[18] Eekelaar, J. (1994) The best interest of the child and children’s wishes: The role of dynamic self-determinism, 8 International Journal of Law Policy and Family 42-64.

[19] Beh, H., Diamond, M. (2000) An emerging ethical and medical dilemma: Should physicians perform sex assignment surgery on infants with ambiguous genitalia? Michigan Journal of Gender and Law 1-63.

[20] Re KD (A Minor) ( Wardship: Termination of Access) [1970] AC 668, at pp 710-711

[21] Re T (Wardship: Medical Treatment) [1997] 1 FLR 502

[22] Aliabadi, S., (2004-2005) You make me feel like a natural woman. William and Mary journal of Women and Law. 459

[23] Aliabadi, S.A. (2004) Gender Assignment Surgery for intersexed infants: How the substantive due process right to privacy both supports and opposes a moratorium. Virginia journal of Social policy and law. Vol 12.1 170-196.

[24] Corbett v Corbett (otherwise Ashley) [1970] 2 All ER 33, [1971] P83, [1970] 2 WLR 1306.

[25] W v W (Nullity: Gender) [2001] Fam 111, [2001] 1 FLR 324,

[26] Chau, P.L., Herring, J. (2002) Defining, Assigning and Designing Sex, International Journal of Law, Policy and The Family 16 (327).

[27] W v W (Nullity: Gender) [2001] Fam 111, [2001] 1 FLR 324, at 363

[28] Bellinger v Bellinger [2001] EWCA Civ 1140, [2002] 1 All ER 311

[29] At [32]

[30] Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112 (HL)

[31] Re R (a minor) (wardship: consent to medical treatment) [1991] 4 All ER 177 111

[32] Re W (a minor) (wardship: Consent to medical treatment) [1992] 4 All ER 627 CA 221n60

[33] Brazier, M., Bridge,C., (1996) Coercion or caring: Analysing adolescent autonomy. 16 Legal Studies 160 at pp. 10

[34] Re E (a minor) (wardship: medical treatment) [1993] 1 FLR 386