Legal Aspects of Gender Assignment

Abstract

The birth of an intersex child presents difficult medical and ethical issues to the attending physicians. Recently, these issues have become the subject of debates among doctors, psychiatrists, ethicists, sociologists, historians, and intersex activists. Largely absent in these debates, however, is any discussion of the legal ramifications of the medical treatment of intersex infants. This paper explores the legal implications of early surgical intervention in the treatment of intersexuality. The first part of the paper provides a summary of the history of the management of intersexuality. It describes the dominant treatment protocol, an alternative model being proposed by intersex activists and a number of physicians, and a middle ground approach advocated by the Constitutional Court of Colombia. It then explores the legal implications of the dominant treatment protocol on the intersex person's ability to marry and the treating physician's liability for failure to obtain informed consent, sex discrimination and invasion of the patient's right to privacy. This paper concludes that the current dominant treatment protocol may impair the legal rights of the intersex child as well as lead to legal liability for the treating physicians.

Keywords: intersexuality, informed consent, privacy, marriage, medical ethics, physician liability, therapeutic privilege, health law, children