Choosing Kids’ Genitalia May Be Unconstitutional, Court Says

A federal judge refused to dismiss a lawsuit brought by the adoptive parents of an intersex child who underwent an unnecessary sex-assignment surgery when the child was an infant in state care. The child, known as M.C., is now eight years old and identifies as a boy, despite the surgery that gave him female genitalia and the fact that his parents initially raised him as a girl.

The motion to dismiss the case was denied late last week by U.S. District Judge David C. Norton of the South Carolina Charleston Division after oral arguments on Aug. 22. The lawsuit was brought by the Southern Poverty Law Center back in May on behalf of M.C. and his adoptive parents.

From a press release from the Southern Poverty Law Center:

“We applaud the court’s decision and we are pleased that the court will have the opportunity to consider the deeply important constitutional issues at stake,” said Alesdair Ittelson, staff attorney for the SPLC. “By removing M.C.’s healthy body parts and trying to make him a girl absent any pressing reason, defendants violated M.C.’s constitutional rights. We look forward to the chance to make our case at trial and bring justice to M.C. and children like him.”

M.C. was identified as male at birth, but was later determined to have “ambiguous genitals,” including both male and female reproductive organs. In 2006, when M.C. was only 16 months old and in the care of the state of South Carolina, the state decided – without any medical need – to assign a sex. Before M.C. was able to make his gender determination for himself, the South Carolina tried to make it for him.

Not only did the state make the decision, they did so without an official determination of whether or not such a procedure was in the best interests of the child. Now M.C. is a healthy boy, except for the fact that his male genitalia was taken away.

As Care2 writer Steve Williams noted back in May, enforcing the gender binary on children has a long history:

Since the 1950s, various states in the U.S. have allowed surgeons to carry out gender assignment surgeries on intersex children or kids with ambiguous genitalia, usually on the assumption that this will benefit them in the long term.

The mistake in this is obvious: a child’s gender is not controlled or defined by the appearance of their sex organs but rather a complex interplay of hereditary characteristics, brain chemistry and the physiology of the brain.

The recent decision doesn’t spell the end of this case. In fact, this is only the beginning. As Ittelson, the staff attorney for the Southern Poverty Law Center noted, now the court can consider the constitutional issues at play.

It remains to be seen which way the legal system will rule in M.C.’s case. Hopefully this will force us to develop a more broad understanding of gender and more accepting of people who don’t fit neatly into the artificially rigid gender binary.


Photo Credit: Brian Turner


Lynn C.
Lynn C4 years ago


Sandra S.
Sandra S4 years ago

On the other hand, doing any surgery during childhood might be a really bad idea. Lots has been learned about gender identity in the last few decades, and sometimes it might change after puberty, so I'm not sure what the latest clinical information would be; just that once you start doing surgery on that part of the body, it is drastically difficult to reverse it, so be sure to make the decision correctly the first time

Sandra S.
Sandra S4 years ago

This is decidedly odd, since I went to Nursing School in the 80's and I learned about bad results of surgeries like these. Assigning a gender and constructing genitalia based on chromosomal structure isn't the answer, either! By school age, it should be clear if there's one gender that the child has identified with, and he or she will want the genitalia to match.

Berny p.
berny p4 years ago

Difficult problems of course but you cant let a child grow to maturity before asking ...IT...what IT wants to be!

What name do you give...where does he go to the you wait for mensturation without talking to it....this child is going to be so mix up that he will not know what he is!

It is difficult enough for a normal child to grow up knowing what sex it is so imagine the the trauma for this poor kid!

Of course help should be provided...IF possible but at some point the parent do make a choice and hopefully it will be the best one but in these cases there is NO good or bad way to make the choice as every case is different so you just do what you think is good for the child.

John S.
Past Member 4 years ago

I wonder how much of this has to do with the complications of waiting.

Lindsey O.
Lindsey O4 years ago

I'm not sure there's any easy answer to this problem. I think it would be psychologically hard on a child to be raised ambiguously in a world that in most cases is decidedly male/female (children always find ways to torment one another and a child who isn't raised either male or female is going to be a major target of hurtful teasing and namecalling.) And raising the child as one sex with the chance of the child later deciding he or she felt more like the other sex would cause its own problems. And while in some cases it might be better to have the surgery performed when the child is a baby so the child could grow up without the ambiguity there's still that chance that might be wrong for others. It's not a good situation, no matter what choices are made. I suppose the best we can do is look at each case individually.

Sheila D.
Sheila D4 years ago

When some adults don't know what gender they are until they are mature, how in the world is a doctor or, especially, the parents or a Judge supposed to know? Children who are raised with no bias as to who they are, gender or otherwise, are healthier mentally and physically than those who are raised with preconceived ideas. Which is why the LGBT community is so determined to be accepted for who they are, instead of what people wish they were. Then again, even heterosexual children have problems if their parents make it clear they wanted the "other" sex.
Thanks for the article. Looks like we still have a long way to go.

Phillipa W.
Phillipa W4 years ago

good. I fail to see how anyone can tell which genitalia of preference is the correct one, or how they can even know a baby will have a problem with hermaphrodite genitals and perform surgery. More than one intersex has "swapped" gender once puberty happened.

Janet Gibbon
Janet G4 years ago

This issue has come up several times of late. Nothing can change the past, but it can be learned from.
Each child will discover over time which gender they identify with. No decisions should be taken without the child's own input being the basis. A gender cannot be assigned any more than sexuality can.

Maureen Leibich
Maureen Leibich4 years ago

Leslea H.--I'm very sorry for the problems you have had, and, even before I read your post, I would have said the system was wrong to perform this surgery. A child is a child, after all, and until the point of puberty, they have no real interest in sex or sexuality. At that point, they should be able to tell you what sex they are, emotionally at least, and have whatever surgery they need. Of course, there will always be parents who make that decision when the child is an infant.

Perhaps MC's surgery can be reversed. I hope so, but I don't think the parents should have to pay for it. I hope they win a large settlement and, if MC wants the surgery, the state is ordered to pay for it.