What is the legal standing of intersexuality?

Classification: FAQ

Below are answers to the frequently asked questions (FAQ) about intersexuality and the law. See other sections of the FAQ if you have questions about other aspects of ISNA or intersex conditions. Please understand that we are not lawyers and be advised that you should consult with your attorney if you have legal questions about a specific case.

Legal Questions about Intersexuality

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Can doctors be held liable for how they treat children with intersex conditions?



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Who can intersex people marry?



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Are intersex people protected from discrimination in the U.S.?



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What is the "Colombia case" and why is it so important?



Answers to Legal Questions about Intersexuality

Can doctors be held liable for how they treat children with intersex conditions?

The Summer 2000 issue of Michigan Journal of Gender and Law has a detailed discussion examining the legal liability of physicians who treat children with intersex conditions. Authors argue that, while physicians cannot be held liable for performing harmful treatment when such treatment is accepted as the standard among medical professionals, there is a greater possibility that the court will find physicians liable for failure to obtain proper informed consent, given how frequently parents of intersex children are misinformed about their children's conditions (read Alice Dreger's analysis about the lack of informed consent).

Can people with an intersex condition marry?

We do not know of any case that established the eligibility for a marriage license when one or both of the partners has an intersex condition. Since most intersex people live as unambiguously male or unambiguously female, we doubt that their legal standing is much different from that of non-intersex people who are unambiguously gendered. We do not know of any precedence regarding how the court would interpret the prohibition against same-sex marriage when the intersex person is also transgender or has transitioned genders. Eventually, it will take the lifting of restrictions on marriage to make sure that all intersex people are treated equally under the law.


Are intersex people protected from discrimination in the U.S.?

Intersexuality is not explicitly included in any of the federal laws against discrimination in employment, housing and public accommodation, and it is unclear whether or not Americans with Disabilities Act will cover it since there has been no ruling so far. In the 1987 case Wilma Wood v. C.G. Studio, a U.S. District Court ruled that discrimination on the basis of "gender corrective surgery" to treat "hermaphroditic condition" does not constitute a sex discrimination per se.

There are several municipalities that have explicitly included "intersex" in their civil rights ordinances, usually collapsed with transgender and transsexual people. While this is an improvement, prohibiting discrimination against intersex people in employment, housing and public accommodations does not sufficiently address the kind of civil rights violation intersex people typically suffer.


What is the "Colombia case" and why is it so important?

In October 1999, the High Court of Colombia (in South America) ruled that parents do not have the unrestricted rights to give "consent" for cosmetic genital surgeries performed on their intersex children, in effect severely restricting what can be done to children too young to give informed consent themselves. In addition, the ruling acknowledged people with intersex conditions as a protected minority group under the nation's constitution. While the ruling does not directly affect intersex people in other countries including the U.S., it shows that it is possible to change the medical practice through legal advocacy.