Sex Matters: Legal Strategies and Alliance Building in the Intersex Community

Intersexuality and the Law
Why Sex Matters
By: 
Julie A. Greenberg
February 9, 2012
BookTalk

By Julie A. Greenberg, a professor at Thomas Jefferson School of Law


The term "intersex" evokes diverse images, typically of people who are both male and female or neither male nor female. Neither vision is accurate. The millions of people with an intersex condition, or a DSD (difference of sex development), are men and women whose sex chromosomes, gonads, or sex anatomy do not fit clearly into the male/female binary norm. Until recently, intersex conditions were shrouded in shame and secrecy; many adults were unaware that they had been born with an intersex condition and those who did know were advised to hide the truth. Current medical protocols and societal treatment of people with a DSD are based on false stereotypes about sex, gender, sexual orientation, gender identity, and disability, which create unique challenges to framing effective legal claims and building a strong cohesive movement. (For some of my earlier work on this topic, see http://ssrn.com/author=252410.)

Intersexuality and the Law: Why Sex Matters examines the role that legal institutions can play in protecting the rights of people with a DSD. The first part of the book explains the sex, gender, and disability assumptions underlying the current medical protocol for the treatment of infants born with an intersex condition. Although most intersex conditions are not disabling, pose no physical risk, and require no medical intervention, infants with these conditions often are subjected to invasive cosmetic surgeries to alter their genitalia so that their bodies conform to a binary sex norm. These surgeries provide no medical benefit and have not been proven to enhance the child’s psychological well-being, but they can lead to a number of problems. They can render women incapable of experiencing an orgasm. They may also result in infection, scarring, incontinence, and other severe physical complications and emotional trauma.

The major goal of the intersex movement is to challenge these medical practices. In addition, the intersex movement is also concerned that people with an intersex condition whose gender identity does not match the sex assigned to them at birth will face the same legal obstacles confronting transgender people. Sometimes, government authorities refuse to recognize their self-identified gender as their legal sex for purposes of marriage, identity documents, and appropriate housing and restroom use.

The intersex movement is small and underfunded. Mounting effective legal challenges to these discriminatory practices will be difficult and will likely require support from other progressive movements sharing similar concerns. Given the gender, sexual orientation, and disability presumptions underlying current practices, the intersex movement could adopt a number of legal frameworks and form a variety of alliances with other social justice movements to accomplish its goals.

Thus far, alliance building efforts have not been as effective as they could be. Feminists, especially those who are concerned about female genital cutting as it is practiced in non-Western nations, have failed to acknowledge the similarities between these practices and cosmetic genital surgeries performed on infants with an intersex condition in Western nations. In addition, feminists have failed to incorporate concerns about these surgeries in their agendas despite the gender stereotypes that are relied upon to support the protocols.

LGBT organizations have supported intersex organizations financially and provided guidance to leaders of the nascent intersex movement. They have not, however, prioritized the issues facing the intersex community and sometimes they have failed to recognize that the rhetoric they use to advance rights for gays, lesbians, and especially transgender people may inadvertently harm members of the intersex community.

The critical disability movement could be a natural ally of the intersex movement. Disability laws could provide a useful framework for protecting people with an intersex condition. Some people with an intersex condition, however, have resisted joining forces with the critical disability movement. They have rejected terminology that refers to them as “disordered” and do not want to be identified with a disability movement.

Intersexuality and the Law: Why Sex Matters examines the struggles the intersex movement is facing in framing its legal arguments and building alliances. It discusses the coalition building problems encountered by a number of other progressive social justice movements and compares them to similar problems facing the intersex movement. It concludes by suggesting that activists concerned about ending subordination and marginalization of people whose bodies or activities do not fit societal norms work together to create more effective advocacy strategies.