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U.S. laws struggle to keep up with gender advances
From children born with DSDs to transgender adults, the legal issues confronting certain groups can be challenging.
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Whether renewing a driver’s license, applying for a credit card or even getting married, there is always a space on the form to specify one’s gender. Generally speaking, we are only given two options: male or female. In recent years, however, the medical community has moved toward thinking of gender as more of a continuum than a stark dichotomy, with numerous children born with various disorders of sex development and increasing numbers of transgender adults.
The question has become more important then, as our understanding of gender has improved: which box to check on those forms? This question is only meant to be an easy analogy for how the rest of society in America, and particularly U.S. law, has been slow to catch up with the changing notions of gender. The legal problems faced by gender minorities are many, and they range from the mundane to the extremely critical: Which bathroom to use? What can I wear to work? Can I get married? For infants, what is the most ethical and legal way to treat certain conditions?
Although the legal world needs to answer some of these and other questions, the medical professionals who treat both children with disorders of sex development (DSDs, formerly referred to as intersex disorders) and transgender adults should be aware of the challenges their patients face on a daily basis.
Recent estimates indicate that about one in 4,500 children are born with some type of genital anomaly. Conditions that can cause this occurrence, or DSDs, are divided into several main categories: 46,XX DSD (female pseudohermaphrodite), 46,XY DSD (male pseudohermaphrodite), ovotesticular DSD (true hermaphrodite), 46,XX testicular DSD and 46,XY complete gonadal dysgenesis. All of these conditions are in turn associated with underlying causes such as congenital adrenal hyperplasia or 5-alpha-reductase deficiency.
All also can lead to the need for difficult decisions for parents and physicians as to how to treat the child; the legal and ethical implications of these decisions are many. In previous generations, the decisions were made primarily by physicians, and in one case the result shaped the views on gender for years.
In 1966, a botched circumcision on a male infant led to John Money, PhD, reassigning the infant to the female gender with a series of surgeries. The child, who was not told of this medical history until his teenage years, consistently identified as a male despite being reared as female. Eventually, he underwent reassignment to become male again. He suffered from severe psychological problems through much of his life, and committed suicide at the age of 38. This well-known case led many to question the idea that gender is a learned trait and that newborns do not possess any inherent gender identity.
Informed consent
The case also brought up the legal implications involved in assigning gender to an infant. Informed consent laws in medicine are based on battery statutes, in that it is considered a civil liability to violate an individual’s body without their consent. By providing parents with all available information on the options for treating the various DSDs, liability may be avoided.
William Reiner, MD, director of the psychosexual development clinic and professor of pediatric urology at the University of Oklahoma Health Sciences Center in Oklahoma City, gave an example of the legal risks involved in treating children with DSDs when informed consent is not properly given.
 William Reiner |
“For certain children with gonadal problems, it is often recommended that their gonads be removed because of a fairly high risk of malignant transformation,” he said. “When you remove the gonads, you are rendering that child sterile, and there are very strict laws in most states about sterilizing people without their consent. Those laws, however, do not directly address infants, and it does pose a dilemma. You can get stuck a sharp stick whichever path you take, if you do or do not remove the gonads. The legal aspects are very tricky.”
Reiner added that as knowledge grows in terms of ideal treatment for children with DSDs, providing full information to parents will become more and more difficult.
“We try to do that, but in some cases you would dwarf the patient’s ability to understand anything, they then understand nothing, and your informed consent becomes the most uninformed in the world,” he told Endocrine Today. “When you deal with a patient who has an obvious condition, like, say, breast cancer, you don’t tell them everything because there isn’t time and you would confuse them. You tell them those things that are important for them to make a real decision that makes sense to them. But in these cases [of DSDs], today we try to tell the parents just about everything.”
Changes in treatment for DSDs
Although in earlier generations there may have been significant risk that the chosen treatment for a child with a DSD might legally constitute battery, there have been substantial advances in the treatments and thinking behind those treatments. Research has started to explain the correlation between specific DSDs and gender identity later in life. For example, more than 90% of patients with 46,XX congenital adrenal hyperplasia who are assigned female in infancy later identify as females. Other conditions are less concrete: among those patients with partial androgen insensitivity syndrome, androgen biosynthetic defects and incomplete gonadal dysgenesis, approximately 25% go on to suffer dissatisfaction with their assigned gender.
Following the guidelines set forth in a consensus statement by the International Consensus Conference on Intersex will allow physicians to utilize the best known medical practices. Julie A. Greenberg, JD, a professor at the Thomas Jefferson School of Law in San Diego who specializes in gender and sexuality discrimination, said that the consensus statement reflects the great progress physicians have recently made in this field. If physicians obtain proper informed consent and follow accepted medical protocols, which the Consensus Statement can help establish, then they are unlikely to be held liable, according to Greenberg.
“If a physician fails to adhere to currently accepted medical practices or fails to obtain a full informed consent, a court would potentially impose liability for medical malpractice,” she said. “But if physicians provide full information to the parents about all alternatives, obtain a fully informed consent and adhere to medically accepted norms, I don’t foresee future liability.”
Transgender discrimination
All gender and sex minorities face certain cultural and legal challenges. Transgender adults, however, may have a few more hurdles to overcome than individuals born with DSDs.
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Photo by Doug Burton |
“Very few intersex people suffer from employment discrimination, because their intersex status isn’t known,” Greenberg said. “Similarly, when intersex persons marry, their status as a legal male or female typically is not questioned as long as they marry in the same gender role as the sex indicated on their birth certificates. In two cases, however, courts were asked to determine the legal sex for purposes of marriage of a person born with a DSD. Transgender people have been subjected to more legal challenges to their right to marry in their self-identified gender.”
Aside from such uncomfortable issues as forms at a doctor’s office, transgender individuals have been fired from jobs, thrown out of restrooms and been prevented from marrying. Although there have been advances regarding discrimination against this community in recent years, such a movement has not yet gained a strong foothold.
“There is some progress, but it is very episodic, sporadic and geographically distinct,” said L. J. Deftos, MD, JD, LLM,a professor of medicine at the University of California at San Diego and a professor of law at California School of Law. “It has been disappointingly slow,” added Deftos, who is a member of the Endocrine Today editorial board.
Marriage has been the most publicized of issues surrounding gender, although it has focused more on homosexual marriages rather than transgender rights. Greenberg said that the recent California Supreme Court decision that held that banning same-sex marriage affects the transgender community because their marriages can no longer be invalidated based upon a sex determination finding that two individuals of the same sex have married.
“The California Supreme Court has declared that state discrimination based upon sexual orientation is highly suspect. This ruling may lead courts to a more nuanced understanding of gender identity and sexual orientation,” she said. “As legal institutions come to accept more nontraditional notions of sex, gender and sexual orientation, we will start to see greater acceptance of all sexual minorities as well, including intersex and transgender.”
Courts or community action?
Michael Silverman, JD, said that changing the legal environment for transgender individuals requires action in other areas before the courts get involved.
“Despite what people think about landmark decisions, it is rarely the legal system leading the way. The legal system tends to reflect what is happening already in the culture at large,” said Silverman, who is executive director of the Transgender Legal Defense and Education Fund and an adjunct professor of law at Drexel University Law School in Philadelphia.
Silverman discussed the health care arena with regard to transgender individuals, and how many simply choose not to access care when confronted with a lack of understanding.
“There may not be legal remedies to all the problems, but there are laws that protect people from discrimination in public accommodations; doctors’ offices can qualify as public places. To change this sort of problem, it takes providers of good will as well as transgender community participation. [Discrimination against transgender individuals] will change eventually, but it will mean making the right arguments and the right cases at the right time,” he said.
One of the problems for courts with regard to gender is the lack of a uniform test to determine legal sex. In the last several decades, courts were asked to determine the legal gender of claimants numerous times and used different methods. For example, the Kansas Supreme Court in 2002 held that a postoperative male-to-female transsexual was legally male, using dictionary definitions of sex and gender in the decision; the court held that the sex designated at birth remains the legal sex, regardless of what happens after.
 Michael Silverman |
Similarly, the Texas Court of Appeals rejected “man-made” sex attributes in a male-to-female transsexual and relied exclusively on chromosomes to determine gender. This, of course, could create problems for children with DSDs who do not fit cleanly into XX or XY molds.
A California trial court in 1997, however, held that the post-transition gender was legally valid with regard to a child custody decision. A Florida trial court came to a similar conclusion in 2002.
Overall, the list of cases that determined gender used everything from dictionaries to chromosomes to birth certificates to gender of rearing and external genitalia to determine gender. Deftos said that there is one unlikely method that could fix this problem.
“Legislation would be a way to address the issue, but it is not going to happen, at least within my lifetime. There are too many prejudices in our society, even against less problematic issues,” he said.
How the medical world can help
As notions of gender continue to evolve, the legal world is far from following that evolution.
Endocrinologists and other medical professionals who see both children with DSDs and transgender adults, however, can help in a number of ways.
“Endocrinologists and psychiatrists are often the expert witnesses that testify before a legal body, be it administrative or judicial, to give opinions,” Deftos said. “They can also take public positions in trying to publicize this relatively overlooked area of endocrinology.”
Even with help from the medical community, there is a long way to go before gender minorities can overcome discrimination in all its forms, and before children are treated in the best possible way to ensure happiness and satisfaction later in life.
“This will be like many battles for great social issues that we have seen, like contraception or abortion,” Deftos said. “It will be a very slow and painful process.” – by Dave Levitan