Founded in 2006 through an Equal Justice Works Fellowship, Advocates for Informed Choice is the first organization in the country to undertake a coordinated strategy of legal advocacy for the rights of children with intersex conditions.
Media Briefing at American Association for Advancement of Science Symposium on Biology, the Law, and Definitions of Sex (February 18)
Eric Vilain, M.D., Ph.D.
Associate Professor of Human Genetics, Pediatrics and Urology
Chief, Medical Genetics, Department of Pediatrics
Director, Laboratory of Sexual Medicine, Department of Urology
David Geffen School of Medicine at UCLA
- Recent advances in the genetics of sexual development have shown the extreme complexity of defining males and females from a biological standpoint. There is no one biological parameter that clearly defines sex.
The Constitutional Court of Colombia has issued three decisions which establish important protections of the human rights of intersex people and restrict the authority of parents and physicians to authorize medically unnecessary genital plastic surgery. Read an English summary of the decisions, or the complete decisions in Spanish, online.
Frankle, R. E. (2003). "Does a marriage really need sex? A critical analysis of the gender restriction on marriage." Fordham Urban Law Journal XXX: 2007-37.
"Limitations on marriage affect a greater number of people than is first evident. That is, an apparently heterosexual marriage could be successfully challenged if one person is unknowingly intersex. Confining marriage to between two people of the opposite sex leads to problems deciding what an opposite sex couple is and who defines an opposite sex couple."
28 September 1999 For Immediate Release
"Defining Male and Female: Intersexuality and the Collision Between Law and Biology," published in the Arizona Law Review's Summer 1999 number, is a broad examination of the law's treatment of persons of ambiguous sex. Author Julie Greenberg, of San Diego's Thomas Jefferson School of Law, examines binary assumptions in the law and offers a brief discussion of how biology confounds those assumptions.
Greenberg then examines cases which have produced legal definitions of the terms "male," "female," and "sex," and analyzes the legislative intent underlying laws which differentiate based upon sex in order to determine to what extent presumed legislative goals are actually accomplished. Finally, she uses the lens of therapeutic jurisprudence to examine the negative impact which the current legal approach has on individuals and on our society.
In 1987, Wilma Wood was fired. She brought suit against her employer, claiming that she had been fired after the employer learned that she was intersexed and had undergone genital surgery. The U.S. District Court in Pennsylvania found that the Pennsylvania Human Relations Act protects women because of their status as females and discrimination against males because of their status as males, but employers are not legally prohibited from terminating employees on the basis of intersex status. The Court cited caselaw arising under Title VII as "persuasive authority."
63 Fair Empl.Prac.Cas. (BNA) 677, 44 Empl. Prac. Dec. P 37,314
In what may be the first U.S. court decision to consider the constitutional rights of intersexuals, U.S. District Judge Clarence A. Brimmer ruled on February 18 in DiMarco v. Wyoming Department of Corrections, 2004 WL 307421 (D. Wyoming), that state prison officials violated the 14th Amendment Due Process rights of Miki Ann DiMarco when they consigned her to 14 months in a dungeon-like high security lock-up without affording any kind of hearing process for her to challenge that decision.
In re Estate of Gardiner, 42 P.3d 120 (Kan. 2002), was a challenge to J'Noel Gardiner's claim, as a widow, for letters of administration and inheritance from Marshall Gardiner's estate. The Kansas Supreme Court refused to recognize J'Noel, a post-operative male-to-female transsexual, as female for purposes of marriage, instead finding that the law contemplates "a biological man and a biological woman" for a valid marriage. This ruling reverses the court of appeals' more flexible approach, which relied on Professor Julie Greenberg's article in the Arizona Law Review article and said courts should consider multiple factors to determine sex. The court of appeals opinion appears at 22 P.3d 1086 (Kan. Ct. App. 2001).
GENERAL DISCUSSION OF LEGAL
ISSUES AFFECTING SEXUAL ASSIGNMENT OF INTERSEX INFANTS BORN WITH AMBIGIOUS
Glenn M. Burton, Esquire
Florida Board Certified Trial Attorney
Burton, Schulte, Weekley, Hoeler, Robbins & Beytin,
Greenberg, Julie. 2003. Legal Aspects of Gender Assignment. The Endocrinologist 13 (3):277-86.
The Casper Wyoming Star Tribune is carrying an article about Miki Ann Dimarco. Early this year, a U.S. District Court judge found that 438 days of confinement in Pod Three, a maximum security four-cell segregated area that is used to house the Wyoming Women’s Center worst inmates, was not cruel an unusual punishment. Dimarco was found guilty of passing six bad checks, totalling $742.85. That’s not why she was confined all alone for over a year. Rather, prison officials decided to segregate her when they discovered that she was intersexed.
Dusen, Matthew Van. 2004. Separate and Unequal. Casper Star Tribune, December 8. Available online.
Two women -- one of them a male-to-female transexual -- have obtained a marriage license in San Antonio Texas. The women had previously been denied a marriage license on the basis that they are a same-sex couple. However, they successfully argued that the Texas 4th Court of Appeals Littleton v. Prange decision guaranteed them the right to marry, based upon their inferred chromosomes.
These legal developments have the potential to invalidate the
The Summer issue of Michigan Journal of Gender and Law has published "An emerging ethical and medical dilemma: should physicians perform sex assignment surgery on infants with ambiguous genitalia?" by Milton Diamond and Hazel Beh. The article breaks new ground in examining the legal liability of physicians who treat sexual ambiguity in infants with genital surgery. See the full citation at the bottom of this page.
The authors note, "This article discusses the development of a surgical approach to treating intersex infants and others with genital anomalies that began in the late 1950s and becamse standard in the 1970s. Although professional literature has recently questioned the surgical approach to the treatment of infants, controversy surrounding treatment persists and the medical community now is divided. How sex reassignment for intersex infants became a routine recommendation of practitioners and how parents were persuaded to consent to such radical surgeries provide a cautionary tale that is relevant to both medicine and law."
When Christie Littleton's husband died under medical care, she filed a wrongful death suit against the physician. When the opposing side realized that Littleton was a transsexual, they asked the court to dismiss her suit on the basis that legal change of sex is impossible, so her marriage was invalid, and she thus lacked legal standing to sue. This case sets a precedent that could render many people with atypical genes ineligible for marriage. The decision's author noted, but dodged, the complexity of legal sex of intersex people: "I express no opinion as to how the law would view [intersex people] with regard to marriage.
From the article's conclusion: "Surgeons who perform genetic normalizing surgery, whether on an emergency basis or at the behest of the intersexed infant's parents, should be aware that, because genital-normalizing surgery is not necessary nor proven beneficial for the infant with clitoromegaly or micropenis, the required elements of legal informed consent are likely to have not been met. In light of the questionable scientific basis behind its use, the lack of follow-up data on its benefits, and the overwhelming evidence of its negative physical and psychological results for many intersexuals, a moratorium should be declared on the use of defenseless infants as the experimental subjects of genital-normalizing surgery."
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