The Necessity of Sex Change: A Struggle for Intersex and Transsex Liberties

48 Pages Posted: 15 Sep 2008

See all articles by Noa Ben-Asher

Noa Ben-Asher

Elisabeth Haub School of Law at Pace University

Date Written: January 1, 2006


This article examines the struggle of two social movements to free subjects from gender subordination. It is commonly held that while biological sex is fixed, gender is social, environmental and flexible. However, this article shows that what is known as "biological sex" also involves a social-legal dimension. This article analyzes a process of translation of medical theories into legal rights narratives in current intersex and transsex advocacy. Two distinct advocacy goals are presently at stake: (1) a struggle to end normalizing genital surgeries on intersex infants and young children, and; (2) a struggle for Medicaid coverage of sex reassignment surgeries for transsex identified individuals. In these two struggles, the concepts "medical necessity," "cosmetic surgery," and "experimentation" produce distinctly different social-legal meanings. The article shows that paradoxically, a current state of crisis in scientific expertise regarding the distinction between sex and gender corresponds perfectly with the legal structure of the two social movements (intersex and transsex) whose determination turns on the sex-gender distinction. The article argues that the current legal struggles of the two movements are based on two sides of ongoing medical-scientific debates regarding the meaning of 'gender identity,' often referred to as the nature/nurture debates. Transsex advocacy for state financing of sex reassignment surgeries is mostly backed by medical theories and experts who focus on "nurture" narratives regarding 'gender identity' and psychological sex, while intersex efforts seeking the termination of unwanted normalizing genital surgeries are ordinarily supported by "nature" narratives that focus on a biological hormonal sexual brain. The article shows how these medical alliances locate the two movements in a state of disharmony. Finally, the article examines the legal claim against early intersex surgery as a traditional claim for 'negative liberty,' and the legal claim for transsex surgery, based on the Medicaid Statute, as a form of 'positive liberty.' In conclusion, the article calls for more reliance on liberal notions of choice and pluralism, and less reliance on medical expertise.

Keywords: Civil Rights, Human Rights Law, Law and Society, Medical Jurisprudence, Science and Technology, Sexuality and the Law, Women

Suggested Citation

Ben-Asher, Noa, The Necessity of Sex Change: A Struggle for Intersex and Transsex Liberties (January 1, 2006). Harvard Journal of Law and Gender, Vol. 29, No. 51, 2006, Available at SSRN:

Noa Ben-Asher (Contact Author)

Elisabeth Haub School of Law at Pace University ( email )

78 North Broadway
White Plains, NY 10603
United States

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