1 ANNE FAUSTO-STERLING, SEXING THE BODY: GENDER POLITICS AND THE CONSTRUCTION OF SEXUALITY 51 (2000) (reporting that 1.7% of the population may be intersexed); Greenberg, Julie A., Defining Male and Female: Intersexuality and the Collision Between Law and Biology, 41 ARIZ. L. REV. 265, 267 (1999)Google Scholar (reporting that Johns Hopkins sex researcher John Money estimates the number of people born with ambiguous genitals at 4%). Historically, people with intersex conditions were referred to as “hermaphrodites” but this word has been rejected as embodying many of the misperceptions and mistreatment of intersexed people. Raven Kaldera, American Boyz Intersexuality Flyer, at http://www.amboyz.org/intersection/flyerprint.html (last visited Mar. 27, 2004).

2 Beh, Hazel Glenn & Diamond, Milton, An Emerging Ethical and Medical Dilemma: Should Physicians Perform Sex Assignment Surgery on Infants with Ambiguous Genitalia?, 7 MICH. J. GENDER & L. 1, 3 (2000)Google ScholarPubMed; FAUSTO-STERLING, supra note 1, at 45; see infra note 4.

3 Emi Koyama, Suggested Guidelines for Non-Intersex Individuals Writing About Intersexuality and Intersex People, at http://isna.org/faq/writing-guidelines.html (last visited Mar. 27, 2004). But see Beh & Diamond, supra note 2, at 17 (estimating the number of sex reassignments in the United States at 100 to 200 annually).

4 Ford, Kishka-Kamari, “First Do No Harm”—The Fiction of Legal Parental Consent to Genital-Normalizing Surgery on Intersexed Infants, 19 YALE L. & POL’Y REV. 469, 471 (2001).Google ScholarPubMed

5 FAUSTO-STERLING, supra note 1, at 61-63.

6 Id. at 45; Ford, supra note 4, at 471; Sentencia No. SU-337/99 (Colom.), available at http://www.isna.org/Colombia/case1-part1.html (last visited Mar. 27, 2004) [hereinafter Ramos]. There are currently no published English translations of the three Colombian cases referred to in this Article. E-mail from Cheryl Chase, founding director of Intersex Society of North America (“ISNA”) (Mar. 19, 2002) (on file with the author).

7 FAUSTO-STERLING, supra note 1, at 62, 84-85.

8 Id. at 84. Fausto-Sterling recounts the story of a twelve-year-old intersexed girl named Angela Moreno who lost her ability to orgasm after having her enlarged clitoris removed without her consent. She was told that she had ovarian cancer and was going to have a hysterectomy performed. Later she discovered she never had ovaries. Instead, she had testes that were also removed during the procedure. Id.

9 Id. at 63-65; Ford, supra note 4, at 476-77.

10 FAUSTO-STERLING, supra note 1, at 63-65; Ford, supra note 4, at 476-77. According to Ford, “medical professionals admit that it is the psychosocial problem of intersex that makes it an emergency.” Id.

11 FAUSTO-STERLING, supra note 1, at 64-65; Beh & Diamond, supra note 2, at 51.

12 See FAUSTO-STERLING, supra note 1, at 84; Beh & Diamond, supra note 2, at 2; JOHN COLAPINTO, AS NATURE MADE HIM: THE BOY WHO WAS RAISED AS A GIRL 143-50, 212-13 (2000). In his book, Colapinto vividly describes the gender dysphoria and sexual confusion of David Reimer, a boy raised as a girl after his penis was destroyed during a botched circumcision. Id. at 143-50. This biographical account of Reimer's life was written with the cooperation and participation of Reimer himself who sat for more than 100 hours of interviews and allowed the author access to all of his confidential files and medical records. Id. at xvii. Colapinto also discusses other children who have suffered extreme gender dysphoria growing up without being informed of their condition. One fourteen-year-old girl described in the book dropped out of high school and threatened suicide if she could not have reconstructive surgery to make her a boy. Testing revealed that she was intersexed, having male chromosomes and female external genitalia. Id. at 212.

13 COLAPINTO, supra note 12, at 32; FAUSTO-STERLING, supra note 1, at 46. Fausto-Sterling cites Johns Hopkins researcher John Money, “From the sum total of hermaphroditic evidence, the conclusion that emerges is that sexual behavior and orientation as male or female does not have an innate, instinctive basis.” Id.

14 FAUSTO-STERLING, supra note 1, at 85-87.

15 Id. at 58, 80, 85-87.

16 Id. at 57-58. Doctors consider a penis adequate if, as a child is able to stand while urinating and, as an adult is able to engage in vaginal intercourse. Id. See also Ford, supra note 4, at 471 (stating the “penis will be deemed ‘adequate’ at birth if it is no less than 2.5 centimeters long when stretched”).

17 Ford, supra note 4, at 474.

18 Julie A. Greenberg & Cheryl Chase, Colombia's Highest Court Restricts Surgery on Intersex Children, at http://www.isna.org/colombia/background.html (last visited Mar. 27, 2004) (synthesizing in English the three Colombian cases to which this Article will refer).

19 E-mail from Alyson Meiselman, Liaison Representative of NLGLA (Aug. 19, 2002) (on file with author). The American Bar Association (“ABA”) resolution was proposed by the International Law and Practice Section regarding surgical alteration of intersexed infants. The memorandum was drafted for the ABA Commission on Women in the Profession. Id. The resolution will be voted on by the House of Delegates at the August 2003 ABA meeting in San Francisco, California. E-mail from Alyson Meiselman, Liaison Representative of NLGLA (April 29, 2003) (on file with author). A draft of the proposed resolution is available at http://www.kindredspiritlakeside.homestead.com/P_ABA.html (last visited Mar. 27, 2004).

20 FAUSTO-STERLING, supra note 1, at 36-39, 48-54.

21 Id.

22 Id. at 48-54. The most common forms of intersexuality are: Congenital Adrenal Hyperplasia, which affects children with XX chromosomes and is otherwise referred to as “female pseudo-hermaphrodite”; Androgen Insensitivity Syndrome, which affects children with XY chromosomes and is also referred to as “male pseudo-hermaphrodite”; Gonadal Dysgenesis, which predominantly affects children with XX chromosomes; Hypospadias, which affects children with XX chomosomes; Turner Syndrome, which affects children with XO chromosomes and causes these children to lack some feminine characteristics such as breast growth and menstruation; and Klinefelter Syndrome, which affects children with XXY chromosomes and causes these children to lack some external male characteristics. Id.

23 Id. at 66.

24 Beh & Diamond, supra note 2, at 3; see COLAPINTO, supra note 12, at 32.

25 FAUSTO-STERLING, supra note 1, at 51.

26 Id. at 56-63; Beh & Diamond, supra note 2, at 3.

27 FAUSTO-STERLING, supra note 1, at 40.

28 Id.

29 Id.

30 Id. at 44-45.

31 Id. at 40.

32 Id. at 33.

33 Id. at 109. For example, the Dominican Republic and Papua New Guinea acknowledge a “third type of child,” however, they still recognize only two gender roles. Id.

34 Id.

35 Id.

36 Id.

37 Id.

38 Id.

39 Id.

40 COLAPINTO, supra note 12, at 39. Colopinto quotes Dr. Benjamin Rosenberg, a leading psychologist specialized in sexual identity, as saying, “Money was ‘the leader—the front-runner on everything having to do with mixed sex and hermaphrodites ….” Id.

41 Id. at 32-35; Ford, supra note 4, at 471.

42 COLAPINTO, supra note 12, at 32.

43 Id. at 32-35.

44 Id. at 50, 67-68, 70.

45 Id. at 65. John Money presented the case at the annual meeting of the American Association for the Advancement of Science on December 28, 1972.

46 Id. at 16.

47 Id. at 131.

48 Id. at 50. Money envisioned Brenda marrying a man and engaging in vaginal intercourse. Id.

49 Id. at 65-71.

50 Id. “The twins case was quickly enshrined in myriad textbooks ranging from the social sciences to pediatric urology and endocrinology.” Id. at 70.

51 Ford, supra note 4, at 471-73; Beh & Diamond, supra note 2, at 3.

52 Ford, supra note 4, at 471; Beh & Diamond, supra note 2, at 3.

53 COLAPINTO, supra note 12, at 75.

54 Summary of Sentencia No. SU-337/99 (Colom.), at 4 [hereinafter Ramos Summary] (on file with author). The Colombian Court asked for follow-up studies on intersexed children and was not able to obtain any. Id.; COLAPINTO, supra note 12, at 233-35. There have been several cases of genetic males raised as females that were not followed until recently. Id. at 273-75; see also FAUSTO-STERLING, supra note 1, at 80-91 (providing statistics and personal accounts of intersexuals who received surgery during childhood).

55 Ramos Summary, supra note 54, at 4.

56 COLAPINTO, supra note 12, at 208-09. Milton Diamond, an outspoken opponent of John Money put out an advertisement searching for Brenda in the 1980s. With the help of Keith Sigmundson, he tracked down the subject of Money's famous study. Id. at 199, 208-09.

57 Id. at 208.

58 Id. at 214. The article was published in the Archives of Pediatrics and Adolescent Medicine in March 1997. Id.

59 Id. at 216.

60 Id. at 60-63, 145-50.

61 Id.

62 Id. at 60-63.

63 Id. Due to Reimer's negative behavior at school, she was referred to a guidance counselor in the first grade. Brenda's parents then allowed her doctor to speak with her guidance counselor and her teacher about her condition. Id. at 63-64.

64 Id. at 87.

65 Id. at 92.

66 Id. at 80.

67 Ramos Summary, supra, note 54, at 9; Kaldera, supra note 1.

68 Kaldera, supra note 1.

69 COLAPINTO, supra note 12, at 190-95.

70 Id. at 180-85.

71 Id. at 184.

72 Id. at 267. The Reimer family moved after Brenda's sex change operation and her parents created stories about other parts of their family history in order to hide the truth from her. Id. at 100-01, 106, 267.

73 Id. at 188.

74 Id. at 195.

75 Id. at 218-20; Alice Dreger, Why Do We Need ISNA?, ISNA NEWS, May 2001, at http://isna.org/newsletter/may2001/may2001.html. Because of the private nature of the topic many intersexed adults are hesitant about talking of their experiences. Id.; FAUSTO-STERLING, supra note 1, at 85. The ISNA website provides links to personal accounts written by intersexed adults, press releases, medical information, and other resources.

76 FAUSTO-STERLING, supra note 1, at 45-50.

77 Id. at 84.

78 Id. at 80; Intersex Society of North America, ISNA NEWS, Feb. 2001, at http://isna.org/newsletter/feb2001/feb2001.html.

79 FAUSTO-STERLING, supra note 1, at 80.

80 Id.

81 See id. at 81; ABCNews.com, Intersex Babies: Controversy Over Operating to Change Ambiguous Genitalia, Apr. 19, 2002, at http://abcnews.go.com/sections/2020/DailyNews/2020_intersex_020419.html; COLAPINTO, supra note 12, at 217-18.

82 COLAPINTO, supra note 12, at 220.

83 Id. at 218.

84 Id. at 220; Intersex Society of North America, ISNA's Amicus Brief on Intersex Genital Surgery, Feb. 7, 1998, available at http://isna.org/colombia/brief.html.

85 COLAPINTO, supra note 12, at 233-34; FAUSTO-STERLING, supra note 1, at 94-95.

86 COLAPINTO, supra note 12, at 233-35.

87 Id. at 234. The study included interviews with ten intersexed adults who had not been operated on as infants. The study found that genital appearance only plays a small part in a person's formation of gender identity.

88 Id.

89 Ramos Summary, supra note 54, at 10.

90 Greenberg & Chase, supra note 18.

91 Id.

92 Id.

93 Id.

94 Id. The first intersex case was heard by the Constitutional Court of Colombia in 1995. This case is available at the Intersex Society of North America website, at http://www.isna.org/colombia/t-477-95.html (last visited Mar. 27, 2004). Although the case has not been officially translated, the original Spanish text of this decision and the two subsequent decisions can be found on the website. E-Mail from Cheryl Chase, founding director of ISNA (March 19, 2002) (on file with author). For purposes of this Article, I referred to my own translation as well as to summaries of the cases forwarded in an e-mail by Cheryl Chase, written by Sydney Levy, ISNA Board of Directors (March 19, 2002) (on file with author). The names in all three decisions were changed by the Colombian court to maintain the privacy of the individuals involved. Ramos Summary, supra note 54, at 2. The court refers to the cases by number and initials. This Article will refer to each case with a fictitious surname to avoid confusion.

95 Translation of Sentencia No. T-477/95 (Colom.), at 11-12 [hereinafter Gonzalez Translation] (on file with author).

96 Id at 7.

97 Id at 14-16.

98 Id. at 4-5, 14-15. CONSTITUCION POLITICA DE COLOMBIA, translated in CONSTITUTIONS OF THE WORLD (1998).

99 Gonzalez Translation, supra note 95, at 15; see Greenberg & Chase, supra note 18.

100 Ramos Summary, supra note 54, at 1; Translation of Sentencia No. T-551/99 (Colom.), at 1 [hereinafter Cruz Translation] (on file with author).

101 Ramos Summary, supra note 54, at 1; Cruz Translation, supra note 100, at 1.

102 Ramos Summary, supra note 54, at 2.

103 Id. at 1; Cruz Translation, supra note 100, at 1, 6.

104 Ramos, supra note 6. Throughout the case, the court refers to Ramos with female pronouns and so I will also refer to her as female.

105 Ramos Summary, supra note 54, at 1, 3.

106 Id. at 1.

107 Id.

108 Id.

109 Id.

110 Id. at 4.

111 Id. at 1.

112 Id. at 1.

113 Id. at 2. The Constitutional Court quotes directly from the trial court opinion.

114 Id.

115 Id.

116 Id. at 9.

117 Id. The court examined the nature and frequency of cases of intersexuality, the various medical procedures considered acceptable by the medical community, the urgency and necessity of the procedures, and the optimal age at which surgery should be performed. Id. at 2. Finally, the court looked at whether there were any studies showing the beneficial or detrimental effects of surgery. Id. The court stated that in response to its request for information it had received numerous documents, most of which concurred. Id. at 3. In the United States, Germany, and Colombia (up until this point), surgery on the external genitalia is performed as soon as possible after the birth of the infant, usually within the first week. Id. at 4. The internal gonads are generally removed during adolescence. Id. According to medical experts, the surgery is done immediately so that the parents will not raise their child without a clear gender role. Id. Doctors also hope to prevent the child from becoming confused about their gender and deciding to change their assigned sex in the future. Id. When the ambiguity is not discovered at birth, such as in the case of Ramos, the child is usually assigned the gender that the parents have raised him or her with thus far. Id. Proponents of the surgery argue that if the child's genitals do not conform to their social sex, their parents may feel uncomfortable with the child's ambiguity. Id. at 5. In addition, the child may be teased by their peers and develop low self-esteem or other psychological problems. Id. In opposition to the surgery, the court received an amicus brief from ISNA to which it often references in its opinion. Id. See Intersex Society of North America, ISNA's Amicus Brief on Intersex Genital Surgery, Nov. 7, 1998, available at http://isna.org/colombia/brief.html. Critiques of the surgery include lack of informed consent by parents, lack of long-term studies, and random choice of sex assignment by doctors and parents. Ramos Summary, supra note 54, at 4. The court was not able to locate any follow-up studies that had been done on the effectiveness of these medical procedures. Id. The court referred to the Nuremberg Code that prohibits research and experimentation on human subjects without the individual's consent. Id. at 6-7.

118 See The International Covenant on Civil and Political Rights, Article 7, G.A. res. 2200A.(XXI), 21 U.N. GAOR Supp. (No.16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, available at http://www.umn.edu/humanrts/instree/b3ccpr.htm. “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” Id. art. 7. In Ramos, the Colombian Constitutional Court explores the legal dilemma created by the doctor's mandate to help the patient in whatever way possible stemming from the benevolence principle in Articles 44 and 49 of the Colombian Constitution; the patient's right to have access to science and technology from Articles 13 and 49 of the Constitution; versus the patient's right to autonomy and physical integrity, from Articles 1, 12, 16 and 44. Ramos Summary, supra note 54, at 6. The court also mentions the advancement of science that is encouraged by allowing doctors to develop new techniques through experimentation without strict judicial control. Id. The court states that these constitutional principles may often be in contradiction. Id. The court's decision is controlled by the principles of autonomy in Article 1, and the preservation of the life and health of the people in Articles 2 and 46. Id. at 7. Thus, the court concludes that people must have more autonomy to consent to procedures that are risky to their life and health. Id.; see also Levy, supra note 94; CONSTITUCION POLITICA DE COLOMBIA, supra note 98, arts. 1, 2, 12, 13, 16, 44, 46, 49.

119 Ramos Summary, supra note 54, at 9.

120 Id.

121 Sentencia No. T-551/99 (Colom.), available at http://www.isna.org/colombia/case2.html (last visited Mar. 27, 2004) [hereinafter Cruz].

122 Id.

123 Cruz Translation, supra note 100.

124 Id. at 16, 24; see Levy, supra note 94, at 6.

125 Cruz Translation, supra note 100, at 1-2.

126 Id.

127 Id. at 1; see Levy, supra note 94, at 6.

128 Cruz Translation, supra note 100, at 3.

129 Id. at 1-2, 21.

130 Id. at 18, 22.

131 Id. at 21; see Levy, supra note 94, at 6.

132 Cruz Translation, supra note 100, at 21; see Levy, supra note 94, at 6.

133 Cruz Translation, supra note 100, at 22-23, 26.

134 Id. at 9.

135 Id. at 15-16.

136 Id.at 13,15, 23.

137 Id. at 14, 17-18.

138 Id.

139 See id.

140 Id. at 17-18.

141 Id. at 18-20.

142 Id. at 15.

143 Id. at 15-16, 24.

144 Id. at 18.

145 Id. at 19-20.

146 Id. at 21, 25.

147 Ramos Summary, supra note 54, at 4.

148 Id. at 9.

149 Id. at 7-8.

150 Cruz Translation, supra note 100, at 23.

151 Beh & Diamond, supra note 2, at 38-39.

152 RamosSummary, supra note 54, at 4.

153 Glenn M. Burton, General Discussion of Legal Issues Affecting Sexual Assignment of Intersex Infants Born with Ambiguous Genitalia, § IIG, at http://www.isna.org/library/burton2002.html (last visited Mar. 27, 2004).

154 Beh & Diamond, supra note 2, at 2.

155 See Helling v. Carey, 519 P.2d 981, 983 (Wash. 1974). A physician may be negligent even if they follow customary medical practice. Id.; see Burton, supra note 153, § IIA. Burton writes that the American Board of Pediatrics added an addendum to their 1996 recommendation for early surgical intervention acknowledging the recent debate over infant genital reconstruction surgery. Id.

156 Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding that the right to marry is fundamental); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (holding that the right to reproduce is fundamental); Rochin v. California, 342 U.S. 165, 172-73 (1952) (holding that the right to bodily integrity is fundamental).

157 See Parham v. J.R., 442 U.S. 584, 606-07 (1979) (holding that a parent can involuntarily commit a minor child for mental health treatment as long as the treatment is determined to be in the child's best interest by an independent medical determination). The Court stated that there should be an independent examination to determine that parents were not using the hospital as a “dumping ground.” Id. at 598. See also In re Rosebush, 491 N.W.2d 633, 640 (1992) (recognizing the best interest standard applies for determining whether life saving treatment should be provided for a minor child against the parent's wishes).

158 E.g., 18 U.S.C. § 116 (2000).

159 U.S. CONST. amend. XIV, § 1.

160 Gideon v. Wainwright, 372 U.S. 335, 342 (1963).

161 Washington v. Glucksberg, 521 U.S. 702, 720 (1997); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1994) (“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” (citing Carey v. Population Services International, 431 U.S. 678 (1977))).

162 Washington, 521 U.S. at 721 (“The 14^th Amendment ‘forbids the government to infringe … ‘fundamental’ interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’” (quoting Reno v. Flores, 507 U.S. 292, 302 (1993))).

163 Casey, 505 U.S. at 899. Although the Court reaffirmed that women have a constitutional right to seek an abortion without undue burden, a state may require minors to seek a parent's consent for an abortion provided that there is an adequate judicial bypass procedure. Id. In an earlier case, the Supreme Court stated “our cases show that although children generally are protected by the same constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust its legal system to account for children's vulnerability and their needs for ‘concern, … sympathy, and … paternal attention.’” Bellotti v. Baird, 443 U.S. 622, 635 (1979).

164 Lassiter v. Dep't of Social Services of Durham County 452 U.S. 18, 39 (1981); see Wisconsin v. Yoder, 406 U.S. 205, 232-34 (1972); Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

165 Parham v. J.R., 442 U.S. 584, 602-04 (1979) (“The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents’ authority to decide what is best for the child.”).

166 Id. “The court is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.” Id. at 603. “The parent's interests in a child must be balanced against the State's long-recognized interests as parens patriae.” Troxel v. Granville, 530 U.S. 57, 88 (2000). See also Prince v. Massachusetts, 321 U.S. 158 (1944). In Prince, the Supreme Court examines the parents’ right to have their child distribute religious material on the street. Id. The Court allowed the state to limit parent's power in this regard stating, “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” Id. at 170.

167 Sher, Elizabeth J., Choosing for Children: Adjudicating Medical Care Disputes Between Parents and the State, 58 N.Y.U. L. REV. 157, 169-70, 170 n.57 (1983)Google Scholar; Trahan, Jennifer, Constitutional Law: Parental Denial of a Child's Medical Treatment for Religious Reasons, 1989 ANN. SURV. AM. L. 307, 309 (1990)Google Scholar. Trahan has divided the medical neglect cases into three categories: those where the child's death is imminent; those where there is no imminent harm; and those where the child is endangered but death is not imminent. Id. at 314-15. In most cases, courts will interfere when death is imminent and where the child is endangered even where death is not imminent. However, when there is no risk of imminent death, the parent's religious rights and privacy rights are weighed against the state's parens patriae rights. Id. See also In re Richardson, 284 So.2d 185, 187 (1973) (denying parents’ request to consent to son's kidney donation for the benefit of his sister where it was not found to be in the son's own best interest).

168 Child Abuse Prevention and Treatment Act of 1996, Pub. L. No. 93-247, 88 Stat. 4 (codified in sections of 42 U.S.C. §§ 5101-5116i (2000)); Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2117 (1997); see Lassiter, 452 U.S. at 34 (citing various statutes in support of decision to uphold a termination of parental rights).

169 U.S. CONST. amend. XIV, § 1 (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”); Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (“[A]ction inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” (citing the Civil Rights Cases, 109 U.S. 3 (1883))); see also Moose Lodge No. 107 v. Irvis, 407 US. 163, 173 (1972).

170 See Shelley, 334 U.S. at 14.

171 Id. (“That the action of state courts and of judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court.”); see also Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922, 942 (1982).

172 Estate of CW, 640 A.2d 427 (Pa. Super. Ct. 1994); Matter of Guardianship of Hayes, 608 P.2d 635 (Wash. 1980); Scott, Elizabeth S., Sterilization of Mentally Retarded Persons:Reproductive Rights and Family Privacy, 1986 DUKE L.J. 806, 818 (1986).CrossRefGoogle ScholarPubMed

173 Estate of CW, 640 A.2d at 428; Matter of Guardianship of Hayes, 608 P.2d at 641.

174 Rochin v. California, 342 U.S. 165, 172-73 (1952).

175 Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261 (1990).

176 Parham v. J.R., 442 U.S. 584, 603 (1979); Schlam, Lawrence & Wood, Joseph P., Informed Consent to the Medical Treatment of Minors: Law & Practice, 10 HEALTH MATRIX 141, 142 (2000)Google ScholarPubMed; see Popper, Andrew, Averting Malpractice by Information: Informed Consent in the Pediatric Treatment Environment, 47 DEPAUL L. REV. 819 (1998).Google Scholar

177 Schlam & Wood, supra note 176, at 147-49.

178 Id. at 151.

179 Id. at 143.

180 Id. at 166-68.

181 Id. at 167.

182 FAUSTO-STERLING, supra note 1, at 81.

183 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). The Court stated that it is the right of the individual to decide “whether to bear or beget children.” Id.

184 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 899-901 (1994).

185 Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 443 U.S. 622 (1979).

186 Casey, 505 U.S. at 833 (abortion); Carey v. Population Serv. Int’l, 431 U.S. 678 (1977) (contraception); see also Schlam & Wood, supra note 176, at 166.

187 Estate of CW, 640 A.2d 427 (Pa. Super. Ct. 1994).

188 Id.; see In re Guardianship of Hayes, 608 P.2d 635 (Wash. 1980). In limited circumstances, parents can consent for their incompetent children to be sterilized to protect them from harmful pregnancies. Id. at 638. However, there are strict procedural guidelines that the court follows before allowing parental consent. Id. at 639. The following guidelines must be followed: (1) the child must be represented by a disinterested guardian ad litem; (2) the child must be incapable of making her own decision about sterilization; and (3) the child must be unlikely to develop sufficiently to make an informed judgment about sterilization in the foreseeable future. Id. at 641. Even after the court establishes the listed criteria, the parent or guardian seeking an incompetent's sterilization must prove by clear, cogent, and convincing evidence that there is a need for contraception. Id. First the judge must find that the individual is physically capable of procreation. Id. Second the judge must find that she is likely to engage in sexual activity at the present or in the near future under circumstances likely to result in pregnancy. Id. Finally the judge must determine that the nature and extent of the individual's disability, as determined by empirical evidence and not solely on the basis of standardized tests, renders him or her permanently incapable of caring for a child, even with reasonable assistance. Id.

189 Reproductive rights will not be infringed for those intersexed children who are incapable of producing sperm or eggs or who do not have a functional uterus.

190 Reproductive rights will also not be infringed for intersexed children who have clitoral reduction surgery and do not have their gonads or uterus removed.

191 Estate of CW, 640 A.2d at 427.

192 However, in Vermont, same-sex couples may seek a civil union, pursuant to Vt. St T.15 § 1201. These civil unions may not be recognized by other states. See Duncan, William C., Civil Unions in Vermont: Where to Go From Here?, 11 WIDENER J. PUB. L. 361, 373-76 (2002).Google Scholar In addition, the Massachusetts Supreme Judicial Court held in Goodridge v. Dep't of Public Health, that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution and stayed the judgment for 180 days to permit the Legislature to take action. 798 N.E.2d 941 (Mass. 2003).

193 Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); Baehr v. Miike, No. 91-1394, 1996 WL 694235 (Haw. Cir. Ct. Dec. 3, 1996).

194 Lewin, 852 P.2d at 67.

195 HAW. CONST. art. 1, § 23; see also Baehr v. Miike, No. 91-1394, 1996 WL 694235 (Cir. Ct. Haw. Dec. 3, 1996). The Hawaii Constitution was amended by voter referendum shortly before the decision was rendered in Baehr v. Miike. Coolidge, David Orgon, The Hawai’i Marriage Amendment: Its Origins, Meaning and Fate, 22 U. HAW. L. REV. 19, 82, 101 (2000).Google Scholar

196 Defense of Marriage Act, 28 U.S.C. § 1738C (1996).

197 Lynn E. Harris, Born True Hermaphrodite, at http://www.angelfire.com/ca2/BornHermaphrodite (last visited Mar. 27, 2004). The Superior Court, County of Los Angeles, granted the two-part request of Lynn Elizabeth Harris, Case No. 437625, changing the name and legal sex on her birth certificate from Lynn Elizabeth Harris to Lynn Edward Harris, and from female to male, respectively. Id.

198 See In re Estate of Gardiner, 22 P.3d 1086 (Kan. Ct. App. 2001). Most court cases discussing the legality of changing birth certificates, names or gender identification only consider chromosomes as one factor in determining a person's legal gender. Id. The main factor that courts consider is the genitalia of the individual requesting a legal change of status. Id. In this case involving a male to female transsexual, the court discusses intersex conditions extensively in explaining the difficulty in determining legal gender. Id.

199 Burton, supra note 153, § IIIC. Burton cites Littleton v. Prange, 9 S.W.3d 223 (Tex. App. 1999). In Littleton v. Prange, a male to female transsexual legally changed her birth certificate to female and married. 9 S.W.3d at 224-25. However, the court found that she was not a legal spouse because she was born male and thus was unable to sue for the wrongful death of her husband. Id. at 225-26.

200 Cruzan v. Mo. Dep't of Health, 497 U.S. 261, 269 (1990). “This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cordozo, while on the Court of Appeals of New York, aptly described this doctrine: Every Human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.” Id.

201 Id.

202 See id. at 279.

203 See Washington v. Glucksberg, 521 U.S. 702, 725 (1997).

204 Cruz Translation, supra note 100, at 18-21.

205 Beh & Diamond, supra note 2, at 47-48.

206 FAUSTO-STERLING, supra note 1, at 64-65.

207 Beh & Diamond, supra note 2, at 47; Ford, supra note 4, at 483-84.

208 Ford, supra note 4, at 483.

209 FAUSTO-STERLING, supra note 1, at 86.

210 Ford, supra note 4, at 485.

211 Id. at 484.

212 Id.

213 See Beh & Diamond, supra note 2, at 48-52.

214 Burton, supra note 153, § IIF; Ford, supra note 4, at 475-76; see also Canterbury v. Spence, 464 F.2d 772, 788-89 (1972).

215 Ford, supra note 4, at 476.

216 Intersex Society of North America, ISNA's Recommendations for Treatment, 1994, at http://isna.org/library/recommendations.html (1994). Although not always medical emergencies, some conditions can be painful and require early surgery. Id. Intersex activists opposing genital reconstruction surgery generally do not oppose surgery for these cases which may include “severe second or third degree hypospadias (with extensive exposed mucosal tissue vulnerable to infection), chordee (extensive enough to cause pain), bladder exstrophy, and imperforate anus.” Id.

217 Ramos Summary, supra note 54, at 3. See Beh & Diamond, supra note 2, at 44.

218 Beh & Diamond, supra note 2, at 45.

219 See id. at 11-12.

220 FAUSTO-STERLING, supra note 1, at 84.

221 American Medical Association, Code of Medical Ethics § E-8.08, available at http://www.ama-assn.org/ama/pub/category/2503.html (last updated Dec. 22, 2003). The American Medical Association defines informed consent as “a basic social policy for which exceptions are permitted: (1) where the patient is unconscious or otherwise incapable of consenting and harm from failure to treat is imminent; or (2) when risk disclosure poses such a serious psychological threat of detriment to the patient as to be medically contraindicated. Social policy does not accept the paternalistic view that the physician may remain silent because divulgence might prompt the patient to forego needed therapy. Rational, informed patients should not be expected to act uniformly, even under similar circumstances, in agreeing to or refusing treatment.” Id.

222 Beh & Diamond, supra note 2, at 36.

223 See id. at 48.

224 Id. at 47-50.

225 Ramos Summary, supra note 54, at 4. See Beh & Diamond, supra note 2, at 48, 53.

226 Beh & Diamond, supra note 2, at 37-38.

227 18 U.S.C. § 116 (2000).

228 Id.

229 Bruce A. Robinson, Female Genital Mutilation in North America & Europe, at http://www.religioustolerance.org/fem_cira.htm (last updated Jan. 22, 2004). “FGM has … been criminalized at the state level in California, Minnesota, North Dakota, Rhode Island, and Tennessee.” Id.

230 18 U.S.C. § 116.

231 Id.

232 Id.

233 Id. § 116(c).

234 Id. § 116.

235 Id. § 116(b)(1).

236 See Beh & Diamond, supra note 2, at 46; FAUSTO-STERLING, supra note 1, at 58.

237 FAUSTO-STERLING, supra note 1, at 48, 51.

238 Id. at 109.

239 Id. at 52, 55, 58. Intersexed children with Congenital Adrenal Hyperplasia may develop problems with salt metabolism, which could be life threatening if not treated with cortisone. Id. at 52. Some intersexed babies may have an increased rate of urinary tract infections possibly leading to kidney damage. Id at 58.

240 Beh & Diamond, supra note 2, at 46; FAUSTO-STERLING, supra note 1, at 58.

241 Ramos Summary, supra note 54, at 4; Kaldera, supra note 1, at 4.

242 COLAPINTO, supra note 12, at 218.

243 Ramos, supra note 6.

244 18 U.S.C. § 116.

245 Pub. L. No. 104-208, div. C, § 645(a), 110 Stat. 3009-709 (1996) (codified as amended at 18 U.S.C. § 116 (2000)). “The Congress finds that—(1) The practice of female genital mutilation is carried out by members of certain cultural and religious groups within the United States; (2) the practice of female genital mutilation often results in the occurrence of physical and psychological health effects that harm the women involved; (3) such mutilation infringes upon the guarantees of rights secured by Federal and State law, both statutory and constitutional; (4) the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control; (5) the practice of female genital mutilation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law; and (6) Congress has the affirmative power under section 8 of Article I, the necessary and proper clause, section 5 of the fourteenth Amendment, as well as under the treaty clause, to the Constitution to enact such legislation.” Id.

246 FAUSTO-STERLING, supra note 1, at 85-86.

247 See 18 U.S.C. § 116.

248 Id.

249 Craig v. Boren, 429 U.S. 190, 197-98 (1976). Equal protection claims brought on the basis of gender must meet intermediate scrutiny; thus, the government must show that there is a legitimate state interest in treating the sexes differently, and that this statute is substantially related to a legitimate government interest. Id.

250 Convention on the Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (1989), available at http://www.un.org/documents/ga/res/44/a44r025.htm

251 Id. The other country that did not sign the convention was Somalia. See Office of the United Nations High Commissioner for Human Rights, Status of the Ratification of the Convention on the Rights of the Child (Nov. 4, 2003), available at http://www.unhchr.ch/html/menu2/6/crc/treaties/status-crc.htm.

252 Convention on the Rights of the Child, supra note 250.

253 Id.

254 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1946-1949) [Nuremberg Code], available at http://www1.umn.edu/humanrts/instree/nuremberg.html [hereinafter Nuremberg Code]; Grimes v. Kennedy Krieger Institute, Inc. 782 A.2d 807 (2001). This case discusses experimental research on children in the United States without informed consent. Id. at 811. The court in that case stated, “The Nuremberg Code is the most complete and authoritative statement of the law of informed consent to human experimentation. It is also part of international common law and may be applied, in both civil and criminal cases, by state, federal and municipal courts in the United States.” Id. at 835 [internal quotations omitted]. The court refers to the text of the Nuremberg Code to support its conclusion that the consent to the research was invalid, “The voluntary consent of the human subject is absolutely essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.” Id.

255 Nuremberg Code, supra note 254.

256 In Ramos, the court explores the experimental nature of the surgery and its possible violation of the Nuremberg Code. Ramos Summary, supra note 54, at 6.

257 COLAPINTO, supra note 12, at 75.

258 Cruz Translation, supra note 100, at 25.

259 Id.; see Greenberg & Chase, supra note 18.

260 Cf. Grattet, Ryken & Jenness, Valerie, Examining the Boundaries of Hate Crime Law: Disabilities and the ‘Dilemma of Difference,’ 91 J. CRIM. L. & CRIMINOLOGY 653 (2001)CrossRefGoogle Scholar (exploring the susceptibility of minority groups to hate crimes).

261 Americans with Disabilties Act of 1990 [ADA], 42 U.S.C. § 12101, (2000). The ADA was enacted in the face of discrimination against individuals with disabilities in all areas of life. Id. The purpose of the ADA is to ensure inclusion of individuals with disabilities in employment, education, public accommodations, and government services. Id.

262 FAUSTO-STERLING, supra note 1.