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March 31, 2004
Hello MGMBill.org,
My name is Emi Koyama and I am the director of Intersex Initiative, a Portland, Oregon based patient advocacy group for people born with intersex conditions.
Recently I've seen several press releases from your organization that address both circumcision for males and cosmetic genital surgeries for intersex children. I appreciate your advocacy of intersex children's right to be free of harmful cutting of their genitals without consent, but I have a couple of requests regarding your work in regards to intersex.
First, I've noticed that in several occasions you use phrases like "male, female and intersex" or "boys and intersex children." Perhaps it is not how you intend it, but it seems to imply that intersex children are neither boys or girls--which is NOT the position of the intersex movement. If you are going to mention intersex surgeries along with female genital mutilation and male circumcision, you will need to be careful not to make it sound like intersex is a distinctive sex category like "male" and "female."
This confusion is evident also in the text of the Georgia version of the bill you are proposing also. It states: "For intersex individuals (those born with ambiguous or hermaphroditic genitalia), genital mutilation typically occurs in hospitals shortly after birth, when the attending physician performs 'sex assignment' surgery to make the child fit into the category of boy or girl, rather than intersex."
This statement gives the impression that intersex children should be assigned to the category of "intersex" rather than "boy" or "girl"--which is not what we are advocating for. We support the social assignment of gender categories on intersex children as a boy or a girl so long as our society operates under the two gender system (in other words, we do not support the transformation into three-gender system, which we find no better than the current one); it is the surgeries that we oppose.
Second, I do not believe that it is wise nor effective to attempt to amend the Female Genital Mutilation Act to address intersex surgeries. The FGM law was meant to be largely symbolic--which is why even the most conservative politicians voted for it--and nobody had ever been prosecuted under it until very recently even though it's been in the books for eight years. A federal intersex ban, if enacted, would not be symbolic because it would have immediate impact on the medical practice, and for that reason it would never ever pass. There is simply no chance whatsoever politicians would put doctors in prison for commonly practiced medical procedure that is endorsed by all major medical associations.
And if intersex surgeries could be prohibited through the criminal law, it would set the precedence that the Congress could outlaw a standard medical practice--which may negatively affect the rights of women seeking reproductive health care or transgender people seeking medical help in transitioning to a different gender.
Instead of criminalizing intersex cosmetic surgeries, we believe in reforming civil liability laws. Two possible approaches are enhancing informed consent standard for the parents of intersex children, and statutorily limiting parental authority to consent.
Currently, medical community endorses non-disclosure of information and deception in the case involving intersex children under the legal theory of "therapeutic privilege." Under therapeutic privilege principle, physicians may withhold pertinent information from the patient if they believe that the disclosure of information would cause undue distress and harm on the patient. Obviously, therapeutic privilege was meant to be applied on a case-by-case basis under an extraneous circumstances and not as a routine, standard practice, but there has been no court case challenging this point. We are documenting medical journal articles which endorse non-disclosure as a standard as a way to prove that the medical profession has perverted the concept of therapeutic privilege and that a legislative remedy is necessary to restore true informed consent.
The second approach on the other hand mandates that parents receive permission from a judge before an intersex cosmetic surgery can be performed. For the surgery to happen, the judge must be convinced that the procedure is in the best interest of the child, and not that of the parents (often it's parents' anxieties that doctors are trying to address by cutting on the genitals of the child). Again, this is a civil limitation, so no one would be sent to prison for violating it; it's just that physicians who operate on the child without proper clearance from the judge would be held civilly liable.
We have two lawyers who are helping with drafting such legislation right now, and we are having a law student intern this summer to help with the research. We think that these approaches are much more likely to result in the significant reduction of intersex cosmetic surgeries than loudly demanding the criminalization.
I appreciate your desire to help end intersex surgeries along with male circumcision, but unfortunately your approach is not very helpful. So long as you are addressing male circumcision only, whatever strategy you take is your prerogative; however, if you plan to advocate on behalf of intersex children, you need to coordinate your effort with us. We would never propose any bills that affect circumcision or send out press release about it without first consulting with anti-circumcision activists; you should consult with intersex activists about any intersex-related actions too.
Thanks,
Emi Koyama
Director, Intersex Initiative
http://www.intersexinitiative.org/