Gender Markers Still Miss the Mark

Posted: October 6th, 2016 by

Jennifer Dumin, The Legal Intelligencer (online)

On Aug. 8, Pennsylvania became the 12th state to update its birth certificate policy by removing the requirement of proof of surgery to change an individual’s gender marker. The revised policy was part of the settlement of a lawsuit filed by two transgender plaintiffs in Doe v. Romberger, 2:16-cv-02337, against the Pennsylvania Department of Health in the U.S. District Court for the Eastern District of Pennsylvania. This is an important and long overdue modification for many members of the transgender community who can now update the gender marker on their birth certificate by submitting a letter from a physician simply stating they have undergone appropriate clinical treatment for gender transition; information about specific treatment is not required. Up until now, gender confirmation surgery had been the “golden ticket” in Pennsylvania to achieving legal recognition of a person’s desired gender marker based upon the legal fiction that a person can become the “opposite” sex via medical intervention.

We live in a country where the law has steadfastly denied the incontrovertible evidence of the existence of sex variations that do not fit neatly into the categories of female or male. The medical community collectively refers to individuals with these variations as being intersex. For example, a medical condition identified as Congenital Adrenal Hyperplasia (CAH) in individuals with XX genetic female chromosomes results in prenatal exposure to androgen, the steroid that triggers male development, and thus, such individuals may appear male. Androgen Insensitivity Syndrome (AIS) in individuals with XY genetic male chromosomes causes resistance to androgen’s masculinizing effects during development, and thus, such individuals may appear female. Additionally, a host of other conditions may result in ambiguous genitalia because of the timing of exposure to androgens in the uterus.

A comprehensive review and synthesis of the medical literature from 1955 to 2000 concluded that approximately one or two in 100 newborns do not conform to all of the physical characteristics of either a male or a female, and as many as one in 1,000 newborns actually has visually ambiguous genitalia at birth. Even though such variation has been well documented and is not particularly rare, the law requires individuals to inhabit only one sex. As illustrated by Pennsylvania’s policy and also by the handful of cases where the legal sex of intersex individuals has been litigated, the law will only recognize intersex individuals as female or male despite a genetic makeup that includes characteristics of both.
The erasure of intersexuality under the law pales in comparison to the accepted treatment of intersex individuals by the medical establishment. Intersex individuals are habitually assigned a medico-legal sex of female or male at birth, or shortly thereafter, and physicians surgically intervene during infancy in an attempt to conform the intersex person’s anatomy, at least superficially, to fit the prevailing paradigm of female or male. The model developed in the late 1950s at Johns Hopkins University advocates surgical intervention for genetic males with no penis or a micropenis, including “surgically removing the testes, constructing female external genitals, and prescribing female hormones—then sending the child home to be brought up as Sally.”

These surgical interventions raise legal and ethical questions and often have an irreversible effect on the nonconforming individual. The stated rationale is to spare the child the pain of difference. However, the price paid for visual conformity is often a life of sexual dysfunction, a loss of all procreative power and, of equal importance, a loss of the choice of sex with which that individual identifies, whether male, female or something else. When the cost to the individual is so high, we have to ask whether the accepted medical response to an intersex infant is an invasion of human rights. The change in Pennsylvania’s policy is a step in the right direction, recognizing that when a person’s gender identity does not match the gender the individual is assigned at birth, that person should be able to self-select gender markers without expensive, highly invasive and potentially dangerous surgeries that can result in sexual dysfunction and loss of procreative ability. But it raises another question that has yet to be addressed: Why does the law only allow the gender markers “male” or “female” when there are, in fact, several variations of sex and even more variations of gender? The legal recognition of intersex clients—and intersex children—is an issue that should be embraced by all family law practitioners who value human rights and body integrity, and therefore, it is important to know and understand the following acceptable terms to use when talking about these issues:

• Sex is the anatomy of an individual’s reproductive system and secondary sex characteristics;

• Sex assignment, sometimes referred to as gender assignment, is the determination of an infant’s sex at birth or prior to birth through prenatal sex discernment;

• Gender identity is an individual’s internal sense of being male, female or something else;

• Transgender is a broad term for people whose gender identity, expression or behavior is different from those typically associated with their assigned sex at birth;

• Trans is acceptable shorthand for “transgender;”

• Intersex is a term used for people who are born with a reproductive or sexual anatomy and/or chromosome pattern that does not fit typical definitions of male or female. Intersex conditions are also known as differences of sex development (DSD);

• Gender expression is how a person represents or expresses one’s gender identity, often through behavior, clothing and physical appearance;

• Genderqueer is a term used by some individuals who identify as neither entirely male nor entirely female; and

• Gender nonconforming is a term used by some individuals whose gender expression is different from societal expectations related to gender.

Transgender individuals are also locked into identifying as either male or female. In a handful of states, no manner of surgical or hormonal intervention will allow people to change the gender marker assigned to them at birth; other states will grant requests to change gender markers where the individual can prove irreversible gender confirmation surgery; and 12 states, including Pennsylvania, now allow a change in gender marker with a letter from a physician. But in all states, transsexual individuals must still be adjudicated as irrefutably female or male. There is no room for variation or ambiguity, even for those who are literally “born this way,” e.g., genderqueer, gender nonconforming, or intersex. Again, because the law will only recognize individuals as female or male, as many as one in 50 people were or will be born with an anatomy that is invisible under the law. A court in Wyoming has even held that intersexuality, unlike sex, is not a quasi-suspect category in DiMarco v. Wyoming Department of Corrections, 300 F. Supp. 2d 1197 (2004). So, intersexuality is not a recognized legal sex, but every individual must have a legal sex?

It’s time for the law to catch up to the facts and recognize that there are people who are born outside the categories of male or female. We should change our policies to match those of other countries, such as Germany and Australia, where individuals are given the option to select M-male, F-female or X-indeterminate/intersex/unspecified when sex and/or gender information is collected and recorded.
As practitioners, we must recognize that intersexuality is more than just a theoretical construct; whether we’ve known it or not, we all most likely have or have had intersex clients. The right of intersex clients to be recognized by the law for who they actually are is ultimately a question of fundamental human rights and a basic question of body integrity. Intersex individuals should have the option of choosing to be legally identified as intersex. However, as with trans individuals under the new Pennsylvania policy, intersex individuals should also be permitted to select a male or female gender marker—living outside of the binary can certainly be dangerous in our society, and individuals should be able to choose whether to be gender warriors. Regardless, the ability to choose legal adoption of a particular sex marker does not eliminate the biological fact of intersexuality; the current practice of requiring every individual to be categorized by either a male or female gender marker still misses the mark.


Reprinted with permission from the OCTOBER 6, 2016 issue of THE LEGAL INTELLIGENCER (online). © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.

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