41 Pages Posted: 19 Oct 2005
Male? Female? Simply, starkly, the law mandates an answer on each child's Birth Certificate. The need to meet this requirement marks the point at which the perfect healthy child the parents see becomes the medical anomaly and problem the physicians see as in need of correction before the birth can be registered appropriately. With that forced assignment, law tags each of us with a sexual identity and renders the intersexed invisible. In the process, the law removes its own power to serve as a source of solutions to injustices it can neither recognize nor remedy.
Law operates as an obstacle to change through nearly invisible mechanisms such as using sex identification on birth certificates and drivers licenses, with no flexibility in the categories male and female, and limited-to-no ability to define one's own sexual identity in conformity with its actual nature. We are all legally subject to having a sexual identity assigned by someone else's best guess within a few moments or days of birth.
This paper proposes to cure that lack of imagination by suggesting a small, but sensible, change in our legal record-keeping. We will collect data on sex with a method that incorporates biological reality with shared and deeply held assumptions about sex identity. The change will also bring visibility to the realities of the intersexual experience. That change can provide a foundation for other legal changes recognizing, protecting and facilitating inclusiveness for intersexuals. The simple change this paper recommends is thus not only easily accomplished, but one that a legitimate and moral system should move to implement immediately.
Keywords: intersex, gender identity, gender theory, birth certificate
JEL Classification: I18
Suggested Citation: Suggested Citation
Reilly, Elizabeth A., Radical Tweak: Relocating the Power to Assign Sex from Enforcer of Differentiation to Facilitator of Inclusiveness: Revising the Legal Response to Intersexuality. Cardozo Women's Law Journal, Vol. 12, 2005; U of Akron Legal Studies Research Paper No. 05-20. Available at SSRN: https://ssrn.com/abstract=820186