Hacking the Gender Binary Myth: Recognizing Fundamental Rights for the Intersexed

Abstract:     
Currently, children who are born intersexed (having some characteristics of both males and females, either genetically or physically) have no constitutional right to choose whether to remain intersexed or to "become" male or female. The current practice allows parents to "choose" to set their child's physical sex at birth. Assuming that by raising a child in a specific gender that child will grow up "normal," parents make the tragic decision to create a vagina, shorten a clitoris that is "too large," remove gonads, or change a penis that is "too small" to function into a clitoris.

This Article will transform the typical arena for the intersex rights debate by focusing attention on the fundamental rights of the intersexed. By infusing constitutional law principles into the informed consent doctrine, the rights of the intersexed (and not their parents) can be formulated and protected. Through its protection of fundamental rights, the informed consent doctrine is given the capacity to protect the only party that can give truly informed consent for genital mutilation/reconstruction surgery on an intersexed child: not the parents, not the doctors, not the judges, and not society, but the intersexed individual him/herself.

Keywords: fundamental, right, constitutional, intersex

JEL Classifications: Z00

Accepted Paper Series