Self-determination of the intersex child

The book Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook by the International Commission of Jurists is really a fascinating read (ICJ 2011). And it is such a learning experience. Today I read the section on intersex conditions. As we may or may not know, "intersex" refers to a range of anatomical conditions that do not fall within standard male and female categories. They may be the result of variations in an individual's chromosomes, hormones, gonads, or genitalia. For example, having one ovary and one testis, or gonads that contain both ovarian and testicular tissue.

Chromosomal patterns that are XXY or XO instead of XX or XY are also intersex conditions. And while intersex is often not considered by many people as a medical condition but rather a label, by contrast the Intersex Initiative website states that "…majority of people born with intersex conditions do not view "intersex" as part of their identity (or)... do not even describe their condition as "intersex", as they feel that they simply have a medical condition.... and not intersex status."(ICJ 2011).

Irrespective of how the intersex condition is viewed, it is often accompanied by discrimination and stigma from the larger population. That having been said one of the problems facing intersex children is genital normalizing by the medical establishment with the support of the parents. Many medical professionals seek to ensure, through surgery, that all babies or children fit neatly into the standard categories of male and female based on clearly identifiable genitalia. Their argument is that gender ambiguity can be traumatic and frustrating both for the parents and the child and that the child could have serious problems adjusting to ambiguous gender identity (ICJ 2011).

However psychologists will confirm that gender identity starts forming pretty early and by the age of five intersex children usually have a clear idea of who they are (presumably irrespective of their ambiguous genitalia). Therefore after the age of five, the urgency to perform surgery on the intersex child diminishes and the right of the child to personal development supersedes the right of the parent to make decisions for that child on the area of gender and sexual identity.

Now even though there is lack of consensus in some countries on the most appropriate approach for intersex conditions, the increasing school of thought, supported by court decisions around the world, is to let the intersex child be as he/she is until the age of majority - the age at which the individual, now an adult, can make informed decisions for him or herself.

Many cases have shown how detrimental it is for parents and doctors to choose to perform surgery on the child before it is able to make this important decision for itself. A good example is the story of David Reimer, who as an infant was a boy but tragically lost his penis during a circumcision gone wrong. His parents, on the advice of psychologist John Maney, then had his genitals surgically altered to fit the female gender and was raised as a girl, named Joan. Later in life he rejected his female assignment and lived as a man in adulthood, even getting married to a woman and raising three step children. He underwent female-to-male sex reassignment surgery but eventually committed suicide in 2004.

Another tragic case is the Christiane Volling story. Volling was raised as a male but was found to have a uterus, fallopian tubes and ovaries but no testis during a routine appendectomy. At the age of eighteen doctors had all her intra-abdominal female sexual organs removed without her consent. No male organs were found. Rather than “corrective surgery” to adapt and maintain one of two present sexes, the surgery caused a complete removal of organs from the only present and organic sex (ICJ 2011).

A number of courts have thus ruled that sex reassignment surgery may only be offered to intersex children with his informed consent. By “informed” here we mean that the child is made completely aware of 'the invasiveness of the medical procedure, the patient's level of understanding, the degree of medical qualification in relation to the risk, and the ability of the patient to accept the risk with an objective and critical self- awareness' (ICJ 2011).

Pending this, the child will have to wait until the age of majority to make this important decision. Therefore if an intersex child can be allowed to live as intersex until age of majority or self-determination, it follows that a homosexual or bisexual child should also be allowed to live as a homosexual or bisexual person into adulthood. Often a child will begin to feel attracted to others between the age of 8 and 15 or thereabout.

Since homosexuality is not considered by the World Health Organization as a mental disorder-but rather as a natural part of human sexuality- any attempts to change a child will only have a traumatic affect on his/her psychological and emotional well-being. It is also relatively difficult, if not impossible, to change a person's sexual orientation. Allowing the child to be as he/she is until early adulthood makes provision for the individual to explore his/her freedoms as stipulated in the International Convention on Civil and Political Rights (ICCPR).

Article 12 of the ICCPR assures the child the right to express his or her own views. The child also has the right to free development of personality. Upon reaching the age of maturity he/she can decide what to live as (heterosexual, bisexual, or homosexual). This makes sense, since growing children need to live and experience their sex and gender assignment, as well as sexual orientation to be able to decide what feels best for them.

No one else can do that for them, nor be allowed to try to impose their preferred orientation “ideals” on them. If the young adult finds that a homosexual or bisexual orientation is what comes naturally to them, they should be allowed to live so freely. The implication then is that the right to self-determination must continue throughout adulthood. The state cannot just withdraw his/her right to privacy, dignity and protection because of what others in the population feel about it, which often are irrational feelings or perceptions, shrouded in a cloak called morality. It is after-all a deeply personal journey that is no one else's business other than of that particular individual.

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* Akinyi Ocholla is Executive Director of Minority Women in Action, a Kenyan LBT women's organization.
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REFERENCE

International Commission of Jurists, 2011: Sexual orientation, Gender Identity and Justice: A comparative Law Casebook. Pp. 137-152.