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A Case of Sexual Reassignment Without Consent

Justice for M.C.

by LEE HALL

A South Carolina hospital is being sued for irreparable harm caused by surgery on a toddler’s genitals.

M.C. was 16 months old, in the care of South Carolina’s Department of Social Services, when doctors and department officials determined the child had an intersex condition—a difference in anatomy that resists typical definitions of female or male—and took it upon themselves to make M.C. a girl.

M.C.’s adoptive parents, Mark Crawford and Pam Crawford, have sued. They assert that South Carolina violated M.C.’s substantive and procedural due process rights by excising M.C.’s healthy genital tissue.  The child, now 8, faced surgery about three months before the adoption was final.

“They disfigured him because they could not accept him for who he was—not because he needed any surgery,” said Pam Crawford.

For indeed M.C. is a male child; that’s because M.C. gets to decide.

The doctors committed medical malpractice, say M.C.’s parents, who are suing the Greenville Hospital System and the Medical University of South Carolina as well as Social Services. Attorney Alesdair H. Ittelson said: “No one advocated for M.C.’s right to be free from unnecessary medical intervention at a time when the state was entrusted with his safety and well-being.”

Now, the doctors and officials will be called to answer for their decision, and its irreversible impacts on a child’s life.  M.C. v. Medical University of South Carolina is pending in County of Richland Court of Common Pleas. M.C. v. Aaronson is pending in the U.S. District Court for the District of South Carolina. The legal work comes from Advocates for Informed Choice as well as the Southern Poverty Law Center, and pro bono counsel for the law firms of Janet, Jenner & Suggs and Steptoe & Johnson LLP.

Why Does the Child Have to Be Ordered?

Curtis Hinkle, founder of the Organisation Intersex International (OII), calls M.C.’s parents “great” in the way they’re standing up for M.C.  The goal of OII is equality for intersex people, and the end of human-rights violations including non-consensual genital surgeries.

“I personally feel that the tragic mutilation of M.C. reveals the violence perpetrated on all of us, to some degree—by the very act of assigning a gender,” says Hinkle.

“The legal separation of all humans into just two genders is rooted in a desperate need to impose stereotypical identities on all of us. I have met countless people who have been emotionally mutilated as a result of this socially sanctioned act.”

Acknowledging that people will hold various views, Organisation Intersex International respects an individual’s self-defined identity. Thus, OII supports children who make the decision for intervention, once they have a real voice.  Yet the group’s ethos considers sexual identifications socially and medically constructed. For OII, human being is the fundamental identity of a child.  The group asserts that male and female are not absolute terms, and an official binary stigmatizes and marginalizes those who don’t fit.

Intersex advocates recommend that medically unnecessary genital surgery be postponed until the child is old enough to self-identify with a particular gender—or find satisfaction just being a mix of female and male. For intersex is not a disorder, says Hinkle–who asks, “Why does the child have to be ordered?”

Changing Norms

M.C.’s case highlights the reality that operations on intersex kids cause medical problems—pain, scars, diminished sexual sensation, lengthy dependence on hormones and doctors—accompanied by the struggle to come to terms with irreversible decisions they weren’t allowed to make for themselves.  Intersex kids have long been expected to appreciate such decisions, and adults have doubtless believed their decisions advanced the children’s interests. Frequently, though, adults conceal the medical history from the child. OII is working to open communication channels between intersex people and their parents by providing an online support system.  As Hinkle explains, “It is important not to make parents feel guilty, nor to demonize doctors. We are all part of this system. Working peacefully to create more respect and love for the diversity that nature has given us is more productive.”

What happens in M.C.’s case will help decide whether being intersex is understood as a natural variation in human biological sex, as well as who has the legal right to consent to medically unnecessary procedures. And the case follows this year’s release of  a United Nations statement which expressly names intersex persons as it “calls upon all States to repeal any law allowing intrusive and irreversible treatments, including forced genital-normalizing surgery”—indicating that people should have social equality without having to agree to be male or female.

The government and doctors “told M.C. that he was not acceptable or loveable the way he was born,” said Pam Crawford.  But global norms are changing. And in the United States, thanks to M.C.’s case, these surgeries will never again be business as usual.

“M.C. is a charming, enchanting and resilient kid,” Pam Crawford said in a Southern Poverty Law Center press release. “We will not stop until we get justice for our son.”

And the online momentum (hashtag: #justice4mc) will challenge social assumptions that have long constrained all human beings.

Lee Hall is Legal VP for Friends of Animals, a candidate for Vermont Law School’s LL.M. in environmental law (2014); and the author of On Their Own Terms: Bringing Animal Rights Philosophy Down to Earth (2010). Lee presented work at the nexus of intersex and animal-rights activism at the University of North Carolina Asheville Spring 2013 Queering Spaces – Queering Borders Conference.