Intersex is defined as a congenital anomaly of the reproductive and sexual system. An estimate about the birth prevalence of intersex is difficult to make because there are no concrete parameters to the definition of intersex. The Intersex Initiative, a North-American based organization, estimates that one in 2,000 children, or five children per day in the United States, are born visibly intersex. (36) This estimate sits within range; from genital anomalies, such as hypospadias, with a birth prevalence of around 1:300 to complex genital anomalies in which sex assignment is difficult, with a birth prevalence of about 1:4500. (37) Many intersex children have undergone medical intervention for health reasons as well as for sociological and ideological reasons. An important consideration with respect to sex assignment is the ethics of surgically altering the genitalia of intersex children to “normalize” them.
Clitoral surgery for intersex conditions was promoted by Hugh Hampton Young in the United States in the late 1930s. Subsequently, a standardized intersex management strategy was developed by psychologists at Johns Hopkins University (USA) based on the idea that infants are gender neutral at birth. (38) Minto et al. note that “the theory of psychosexual neutrality at birth has now been replaced by a model of complex interaction between prenatal and postnatal factors that lead to the development of gender and, later, sexual identity”. (39) However, currently in the United States and many Western European countries, the most likely clinical recommendation to the parents of intersex infants is to raise them as females, often involving surgery to feminize the appearance of the genitalia. (40)
Minto et al. conducted a study aiming to assess the effects of feminizing intersex surgery on adult sexual function in individuals with ambiguous genitalia. As part of this study, they noted a number of ethical issues in relation to this surgery, including that:
- there is no evidence that feminizing genital surgery leads to improved psychosocial outcomes;
- feminizing genital surgery cannot guarantee that adult gender identity will develop as female; and that
- adult sexual function might be altered by removal of clitoral or phallic tissue. (41)
Developmental biology suggests that a strict belief in absolute sexual dimorphism is incorrect. (42) Instead, Blackless et al. suggest two overlapping bell-shaped curves to conceptualize sexual variations across populations. Qualitative variation in chromosome complement, genital morphology and hormonal activity falls under the area of overlap. (43) Such an opinion challenges the need for medical intervention in cases of intersexuality.
An example of the implications of legal definitions of sexual affiliation
In addition to social implications, sex and gender categorization has important political and legal implications as well. The identification of an individual as either biologically male or female can have legal ramifications for marriage licenses, spousal support and eligibility for parenthood. The issue of sexual classification, however, is complicated by factors such as chromosomal complement, external genitalia, gender identification and surgical alteration.
In the United States, as in most countries, there is an absence of controlling legislation that defines exactly how a person’s gender is determined. (44) The following example demonstrates some of the complexities this may raise. In 1999, the Texas Court of Appeals considered the validity of a marriage between a man and a person born genetically as a man, but surgically altered to have the physical characteristics of a woman. (45) As in most American states, Texas family law prohibits same-sex marriages, and the United States Congress has passed the Defense of Marriage Act that, for federal purposes, defines marriage as a “legal union between one man and one woman”. (46)
Despite the fact that medical experts gave testimony to the effect that the individual in question was psychologically and psychiatrically female before and after the sex reassignment surgery, the court held that chromosome complement, and not sex reassignment surgery, outward gender characteristics, nor psychosocial self-identification, determine a person’s gender. The court invalidated the marriage on the grounds that the transsexual woman was legally a man. (47)
This case is one example of how the legal system in one country has dealt with the complexities of defining sex and gender and the implications of defining gender and sex. Clearly, there are many other potential legal implications of such definitions and the complicated issues they raise are many.
