Legal Regulation of Genital 'Normalising' Surgery on Intersex Children

Abstract

'Intersex' is an umbrella term used to describe a range of conditions whereby a person may have the biological attributes of both sexes or lack some of the biological attributes considered necessary to be defined as one or the other sex. A percentage of intersex people are born with genitals which are 'ambiguous' - which cannot be clearly assigned as male or female. From the 1950s until the mid 1990s, the medical treatment protocol for intersex which produced ambiguous genitalia was to perform surgery before the child was 2 years old, in order to make the genitals appear more unambiguously male or female. Current treatment protocols continue to recommend genital 'normalising' surgery, though with less enthusiasm and more caution. In 'Marion's Case' in 1993 the High Court established a category of special medical treatment for children which only a court can authorise. Special medical treatment has not been exhaustively defined, but the factors which the court considered significant in 'Marion's Case' were that the procedure was invasive and irreversible; that there was a significant risk of making the wrong decision; and the consequences of a wrong decision would be grave and serious. Family Court-issued guidelines also state that ethically sensitive or disputed procedures should be authorised by a court. This paper will argue that genital normalising surgery on intersex children should not be performed without court authorisation. Since 1993 there have been 4 applications to the Family Court for special medical treatment of intersex children but none of these applications relate to genital normalising surgery. This paper discusses possible reasons for this absence and argues that such surgery has been and may continue to be performed without proper legal authority.