Gender, the endocrinologist and the law — boy or girl?

Issue: April 2006

ByL.J. Deftos, MD, JD, LLM

L.J. Deftos, MD, JD, LLM [photo]
L.J. Deftos

Is it a boy or a girl? As an inquiry by family and friends, this question, expressly or impliedly, accompanies the birth of every baby and serves to elicit the gender of the newborn infant.

In the vast majority of births, the parents’ response is uncomplicated and joyful. However, when the newborn has ambiguous genitalia, of special importance to the endocrinologist, the parents’ response is difficult, often embarrassing and usually distressful.

While in the majority of births the attending physician can readily identify and assign gender through the appearance of the external genitalia, awkwardness arises when the external genitalia are ambiguous.

Although gender can usually be readily assigned through the external genitalia, it is important to recall that gender can be defined in several ways, both objective and subjective. The objective criteria include genetic/chromosomal gender, internal morphological gender (the uterus and prostate and their respective appendages), external morphological gender (penis, vagina, testes), hormonal gender (androgens and estrogens), and phenotypic gender based on secondary sexual features such as body shape, hair geography and breast development.

While even these seemingly objective criteria can be problematic, even more difficulty can arise for the parents, patient and physician when subjective criteria are used to identify gender. These can include arbitrarily assigned gender, usually by a physician; the gender of rearing; and, most complex, the gender of self-identity.

Attributed gender

As will be developed in these articles, attributed gender can have profound effects on the subsequent life of the infant, especially when gender confronts the laws regulating marriage, divorce, annulment, inheritance, health insurance, disability, discrimination and other legal proceedings.

The attributes that have been used to assign gender to a given individual in the modern social and legal context have not been constant.

Until the 1950s, external genitalia were the indicia of sexual identity — a penis, and it was a boy; a vagina, and it was a girl. In cases of ambiguous genitalia, physicians made the gender assignment that seemed most anatomically appropriate, and there were few attempts to alter gender either surgically or hormonally. This simple view began to devolve in the mid-1950s when the gender of rearing began to obtain importance over the gender of biology.

This evolution developed under the impetus of influential Johns Hopkins University, notably in the person of John Money, a psychologist. The view was based on the assumption that children were born as a blank gender slate without an inherent sense of sexuality. Consequently, surgery, hormonal treatment, rearing, and secrecy became policy for a gender identity that was most consistent with the external genitalia.

Since surgical technology could more readily create an adequate vagina than an adequate penis, physicians were more likely to turn an XY infant with a small or ambiguous penis into a girl. Infants with a phallus that looked more like a clitoris than a penis would have it surgically altered to be more like a clitoris. So “optimal sex policy” replaced “true sex policy.”

This view was promulgated by popular press coverage of an “experiment” at Johns Hopkins on identical male twins. At circumcision, the penis of one of the twins was accidentally ablated. The parents acceded to Money’s recommendation that the infant’s testicles be removed, his genitalia be reconstructed to appear female, estrogens be given at puberty, and that the child be raised as a girl without knowledge of this medical history.

The doctors involved in the case proclaimed the experiment successful and in support of their view that traditional patterns of male and female behavior can be altered by rearing. Despite the fact that this was not a patient with ambiguous genitalia, the case served to promote the similar treatment of intersex infants.

But a serious problem had evolved, and it took almost 50 years to publicly reveal that the boy who had been turned into a girl was living as a married man after remasculinization. It was also revealed that, as a child, he preferred boys’ toys, urinating in a standing position despite the absence of a penis, and other behaviors classically ascribed to males. The dissonance of his genetic gender and upbringing caused him severe mental symptoms and ultimately suicide.

Genetic, hormonal gender

The publication of this gender evolution and the reevaluation in the 1990s of the Hopkins experience led some authorities to discredit the view that gender identity is malleable. And although the Hopkins model of treatment is still prevalent, alternative approaches have appeared. These approaches have been fostered by the evolving appreciation of the complexity of sexual identity and the importance of even intrauterine influences on gender.

While it became appreciated that the intrauterine hormonal influences on the brain play an important role in determining gender self-identity, these views needed the impetus of active intersex groups to come to the fore and to lead to the reconsideration that is now underway, at least in some quarters, of the appropriate policy and management protocols for ambiguous genitalia, approaches that subscribe to the importance of genetic and hormonal gender.

The spectrum of intersex is wide. It ranges from well-defined endocrine disorders like congenital adrenal hyperplasia and androgen insensitivity to the psychiatric category of gender dysphoria.

Legal definitions of male and female have also varied with time, and they have not been concordant with medical definitions, especially in U.S. courts.

While the angst of intersex is reaching the public forum with films like Transamerica and popular medical melodramas on television, the impact of the legal issues is also being felt in the wider contemporary society.

Consider the successfully treated pseudohermaphrodite who applies for a marriage license in a state that does not allow same sex marriages. Consider the implementation of a will that leaves all to a son who under goes gender reassignment surgery. What definition of gender prevails, and who decides?

Questions like these will be addressed in subsequent articles in this series. They will illustrate how conservative political principles collide with a growing appreciation of the complexity of gender identity.

This is the first in a series of articles about gender law. Here I will provide background information about gender identity. In future articles, I will detail the legal implications of gender assignment and its unforeseen consequences, often occurring in adulthood and beyond the horizon of the attending physician.

For more information:

L.J. Deftos, MD, JD, LLM, is a Professor of Medicine at the University of California, San Diego, and a member of Endocrine Today’s Editorial Board.

Greenberg, Julie. Legal aspects of gender assignment. The Endocrinologist . 2004;13:277-286.

Cohen-Kettenis, Peggy. Psychological long-term outcome in intersex conditions. Hormone Research. 2005;64:27-30.