Fixed at Birth: Medical and Legal Erasures of Intersex Variations

Abstract

The term 'intersex' describes variations in sex development whereby a person's biological sex traits are not exclusively male or female. Intersex variations occur in many species, including humans. Intersex variations are always congenital, but their aetiology varies greatly, as does the impact on an individual's anatomy. There are a great number of different circumstances which may result in a person being born with intersex variations. Many variations are apparent at birth - often because the genitals do not present as unambiguously male or female. When that occurs, the medical establishment marshals its forces to provide a range of medical interventions aimed at assigning the child to a particular sex and bolstering that assignment. How law and medicine respond to intersex provides insight into our cultural, political and social constructions of sex and the 'natural' body. The very existence of anomalous bodies challenges the security of the natural status of binary sex. Literature over the centuries reflects profound unease with the possibilities of gender fluidity, transformation and ambiguity that the intersex body poses. Epstein describes the tension inherent in the 'vexed relation between scientific recognition of hermaphroditism as a natural biological possibility and cultural investments in sexual difference as an absolute and invariable binary opposition'. This article will interrogate the legal and medical regulation of intersex people, focusing on the legal status of intersex people and issues of consent to medical interventions performed on minors with intersex variations under Australian law. While American scholarship on both the medical and legal constructs of intersex is relatively well developed, very little has been written with a focus on Australian law.