US: Anti-Trans Bills Also Harm Intersex Children

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People rally to end intersex surgeries in New York City, October 27, 2018. 
© 2018 Hunter Abrams

(New York) – The spate of anti-transgender legislative proposals across the United States in recent years also threatens to undermine the fundamental rights of intersex children, Human Rights Watch, interACT: Advocates for Intersex Youth, and the SOGIESC Human Rights Initiative of the University of North Carolina Human Rights Law Program said today.

On Intersex Awareness Day, observed annually on October 26th, the groups introduced an interactive map that highlights how lawmakers across the US have included clauses in their bills that allow or encourage human rights violations against children born with intersex variations. Dozens of bills with intersex exceptions have been proposed, and so far three have passed into state law.

“State legislation in the US that targets transgender youth is also harming intersex youth,” said Erika Lorshbough, executive director of interACT. “When lawmakers propose and pass explicit exceptions for surgeons to operate on intersex bodies before the patients themselves can consent, it makes it clear that these bills are about erasing bodily diversity, not protecting anyone.”

“Intersex” refers to the estimated 1.7 percent of the population with innate bodily traits that do not fit conventional expectations of female or male bodies. Also known as variations in sex characteristics, intersex traits cause a person’s chromosomes, gonads or other internal reproductive organs, genitals, and/or hormone function to differ from characteristics that are “typically” male or female.

Children with intersex variations are often subjected to “normalizing” surgeries that are irreversible, risky, and medically unnecessary. These surgeries are performed without the patient’s consent, most often taking place in infancy or early childhood. Surgeries include procedures to reduce the size of the clitoris, create or enlarge a vaginal opening, reroute a working urethra, or remove the gonads. These surgeries are justified by decision-makers on the grounds that they will reduce stigma and prevent gender dysphoria, but they often have the opposite effects, and also carry risks of scarring, loss of sensation, lifelong sexual dysfunction, urinary incontinence, psychological trauma, and permanent sterilization.

These surgeries have been deemed human rights violations by the United Nations High Commissioner for Human Rights, the World Health Organization, and other authorities, but there have been only modest efforts in the US to regulate these operations. Recent legislative proposals that primarily target transgender youth often include provisions that expressly permit and sometimes encourage medically unnecessary surgeries on intersex youth.

Over the last several years, state governments across the US have been waging assault on the basic rights of transgender children and their families. Dozens of bills targeting transgender youth have been introduced in state legislatures. One form of these discriminatory bills seeks to ban or restrict access to gender-affirming care for transgender young people. Some bills define gender-affirming care as unprofessional conduct, possibly affecting the licenses of physicians who offer such care, and others set criminal penalties for doctors as well as for parents who support their children in seeking the care that they need.

Many of these bills include an explicit exception for procedures performed on intersex children, usually described in these pieces of legislation as “children with a medically verifiable disorder of sex development” or “DSD,” which is a medicalized term for intersex variations widely viewed as pejorative. These provisions purport to ensure that doctors who perform genital and other surgeries on infants and young children with intersex traits are immune from prosecution and civil or professional penalties. These clauses are in the same laws that attempt to punish performing the exact same procedures on older transgender youth who are actively requesting such care.

“This map shows the cartography of legal attacks on intersex rights baked into anti-trans legislation across the US,” said Holning Lau, Willie Person Mangum distinguished professor of law at the University of North Carolina-Chapel Hill School of Law. “Intersex children’s rights to health, bodily integrity, and human dignity are all threatened by this legislation.”

Intersex advocacy groups, as well as a range of medical and human rights organizations, have been speaking out in support of intersex children. There is growing consensus that these medically unnecessary nonconsensual intersex surgeries should end, and some countries have banned them. Nevertheless, some parents in the US continue to face pressure from surgeons to choose these operations when their children are too young to participate in the decision.

“Bundling the unconscionable assault on transgender children’s access to health care with provisions allowing for medically unnecessary surgeries on intersex kids is just two human rights violations for the price of one,” said Kyle Knight, senior researcher on health and lesbian, gay, bisexual, and transgender rights at Human Rights Watch. “Transgender and intersex children are harmed when politicians use children’s bodies to uphold regressive ideas about gender and sexuality rather than protect everyone’s fundamental rights to bodily autonomy.”

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