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Journal of Bioethical Inquiry

, Volume 15, Issue 4, pp 557–568 | Cite as

Intersexual Births: The Epistemology of Sex and Ethics of Sex Assignment

  • Matteo Cresti
  • Elena Nave
  • Roberto Lala
Original Research
  • 111 Downloads

Abstract

This article aims to analyse a possible manner of approaching the birth of intersexual children. We start out by summing up what intersexuality is and how it is faced in the dominant clinical practice (the “treatment paradigm”). We then argue against this paradigm, in favour of a postponement of genital surgery. In the second part of this paper, we take into consideration the general question of whether only two existing sexes are to be recognized, arguing in favour of an expansion of sex categories. In the third part, we illustrate the reasons supporting provisional sex attribution: the child’s best interest and respect for their developing moral autonomy. This position aims to increase the child’s well-being and self-determination, limiting parents’ freedom to take decisions on behalf of others, in particular, those decisions concerning basic aspects of their children’s personal identity.

Keywords

Intersexuality Genital surgery Sex assignment Epistemology of sex Proxy consent Autonomy 

Introduction

Although intersex issues have been long discussed, a justification for the common health practice in response to these is still needed. Nowadays, in some countries, there is legislation protecting intersexual subjects, in others, there is the option for a third gender/sex label, and in a few others a prohibition of non-consensual medical intervention. Intersex activists have won several battles for recognition of their rights, and even the United Nations (2015) has recognized their efforts. Nevertheless, most of the practitioners in the field of intersexuality still embrace a traditional vision of the therapeutic treatment that includes sex and gender assignments and early cosmetic, unnecessary surgical and medical treatment grounded in a paternalistic view of the best interests of these children. This medical management of the bodies of people born intersex continues to be practised (Human Rights Watch 2017) and “have also been criticized as being unscientific, potentially harmful and contributing to stigma” (United Nations 2013, 18).

The efforts of intersex activists have been toward the achievement of practical results (see Dreger and Herndon 2009). In academic research, much of the work has been in sociology or the ethical discussion of early surgery, related to cultural, social, and religious pressures. With this paper, we want to present an analysis of what intersexuality is and, in virtue of this, a justification for an enlargement of sex categories. By this analysis, we want to provide some considerations on the ethics of the management of intersexual infants and children.

Firstly, we shall present the terms of discussion: what intersexuality is and in which form it appears. Secondly, we will exhibit the traditional medical approach to these conditions, going on to summarize the criticism moved against it. Thirdly, we will examine how intersexuality can be conceptualized, arguing in favour of the enlargement of sex categories. Lastly, we will propose an approach to receiving these kinds of birth which promotes sex and gender self-determination of each human individual starting from an early age: the provisional assignment of sex and gender and the abolition of unnecessary surgery until these individuals are able to decide for themselves.

Overview of Intersexual Definitions and Conditions

“Intersexual” is the term employed in this paper to denote individuals born with “atypical” sexual characteristics. The expression used synonymously in scientific medical literature is “disorders of sex development” (DSD), a formulation which was coined at the Chicago Consensus Conference and which “should be descriptive and reflect genetic aetiology when available” (Hughes et al. 2006, 554). By the definition provided by the Consensus Conference, DSD consists of a heterogeneous group of alterations of sexual characteristics, defined as congenital conditions with atypical development of chromosomal, gonadal, or anatomic sex (Lee et al. 2006).

Individuals coming into the world as intersex present a peculiar condition because their “congenital conditions of atypical genital and gonadal development are in the intersection of sexual biology, social gender determination, and personal identity” (Rosario 2009, 267).

The nomenclature with which these individuals are defined has a long and controversial history of changes; it is already itself problematic.1 The term intersex, for example, “was never formally adopted by physicians as a diagnostic term” (Feder 2009, 241). The new terminology, DSD, according to some authors is better than other alternatives because it is more current, useful, and “not pejorative” (Hughes 2008), but it has been considered stigmatizing by others. Additionally, the term “intersex,” from the perspective of some intersexed people and their parents, is considered a term that sexualizes them “by making the issue one of eroticism instead of biology; that it implies they have no clear sex or gender identity” (Dreger and Herndon 2009, 208). In addition to these two main expressions, others have coined some alternatives to refer to intersex individuals, such as “variations of sex development” (Diamond and Beh 2006).

In this paper, the choice of the term “intersex” instead of “DSD” stems from the acknowledgment of the performative and pathologizing connotations that the term “disorder” carries. We use the term “intersexual” because the intersexual subjects themselves use it (for example, by the extinct Intersexual Society of North America) and because it emphasizes their biological, value-free specificities as opposed to their failed homologation (e.g., Diamond and Beh 2006). We refer to “intersexual” individuals with regards to individuals whose sex is not so sharp and does not allow a categorization as exclusively male or female.

Nevertheless, a single, unique univocal condition called “intersexuality” does not exist; “intersexuality” is an umbrella term grasping different conditions, having in common sexual atypicality. In fact, upon further scrutiny of this expression or its medical formulation, “DSD,” one can uncover a high number of different conditions. These biological variations are context-specific, depending on local standards about female and male sexual anatomy and their relation with genetic factors: “how many variations (and thus people) are included in the category intersex depends on time and place” (Dreger and Herndon 2009, 200). In certain kinds of intersexual conditions, there is a discordance between genetic sex and anatomical-gonadal sex, for example, the case of congenital adrenal hyperplasia (CAH), in which the subject presents an XX genotype while presenting a masculine phenotype (looks like a boy) and meanwhile possesses ovaries. In other types of intersexual conditions, there is a certain kind of genetic mosaicism, for example, XX/XY individuals. Finally, there are individuals whose genotype does not coincide with the standard forms of either XX or XY (e.g., X0, XXY, XYY, and so on). It is considering the aforementioned cases that “intersexuality” is to be understood as an “umbrella term” which covers different conditions and aetiologies, ranging from life-threating conditions (as in the cases of CAH, in which the infant subject may die if not provided with the appropriate drugs) all the way to only aesthetic discordance with the sex/gender standard.

The global incidence of intersexuality is estimated to be one in 5,500 newborns, and it is classified as a “rare condition” by the medical community (Lee et al. 2006); nevertheless, it represents a consistent incidence across global populations.

We analyse intersexuality mostly in terms of sex and less in terms of gender. We adopt the standard distinction between sex and gender. The term “sex” refers to biological status, that is, physical and genetic attributes such as chromosomes, hormones, and genital anatomy. The term “gender” refers to socially constructed roles and behaviours considered appropriate to one’s sex (see American Psychological Association 2002; Mayer and McHugh 2016; Fausto-Sterling 2000a). As pointed out by Simone de Beauvoir: “one is not born but becomes a woman” (de Beauvoir 2011, 283). The main problems with intersexuality are whether an enlargement of sex categories is possible and justified and which sex to attribute to an intersexual child (if it is possible to attribute one). We will focus on these points. There are further issues concerning gender and intersex, including whether we should rear intersex children in one of the two genders and whether a third gender is possible to perform; these issues are of great importance but are not the central focus of our discussion here.

The Traditional Paradigm

Traditionally, medical management of intersex infants and young children consists in the so-called “treatment paradigm” (Karkazis 2014), which provides sex assignment, early sex assignment surgery, and hormonal therapies to homologate the subject’s body on the basis of the female or male attributed sex. As a result, the subject is also assigned to a heterosexually coherent gender role to be reinforced through education and environmental influences. The ambiguity of the sexual traits of the body is thus “normalized” through “corrective operations.” The normalization of infants and children intersex condition was the standard model of care until the 1950s (Dreger and Herndon 2009, 202; Money et al. 1957).

In accordance with this paradigm, the birth of intersexual children is perceived as a real “social emergency” (American Academy of Pediatrics 2000; Hester 2004; Chase 2003), since it is impossible to attribute one of the standard sexes to the individual, as the law of many states requires.2 Furthermore, there exists a social pressure pushing infants to belong to a specific sexual category and to ensure that their gender role is heterosexually coherent with the sexual category that they belong to (Feder 2006). According to health professionals, most parents of intersex infants interpret the physiological condition of their children as a “defect,” a “malformation” that should be corrected as soon as possible. These births, classified in the medical field as “disorders,” are accompanied by lack of social acceptance. The social non-acceptance of the unusual forms a body can take on does not just concern sexual characteristics but also applies to all parts of the human body. Nevertheless, there is a peculiar sense of shame, guilt, discomfort (Frader et al. 2004, 426; Parens 2006) secrecy, and scandal related to atypical genitalia (Lee et al. 2016; Lee and Houk 2016, Committee on the Rights of Persons with Disabilities 2016). The social non-acceptance also concerns the ambiguity in the definition of the sexual and gender role of each individual or the possible inconsistency of these two identities in the same individual.

Parents of intersexuals intend to enable their children to integrate as best as they can in a social environment. Indeed, they believe, in most cases, that living with an intersexual condition exposes their children to civil limitation, social blame, and potential psychological burden (see Schober et al. 2012; Houk et al. 2012). Other reasons supporting intervention is the attempt to avoid feelings of having abandoned children who need care and support and the hypothesis that children would not be able to recall surgery performed on their body at an early age (Karkazis 2014, 2910; Roen 2009, 29).

Some critical stances have been taken against this approach. Firstly, it could be argued that these surgical interventions do not take account of all the meanings—social, cultural, historical, and political—taken on by the body, its organs, attributes, and functions, meanings that go well beyond biological phenomena (Karkazis 2008, 287). It seems that human beings whose bodies are “atypical” when compared to the medical standard imposed by the dominant paradigm must necessarily be conformed, stabilized, repaired to ensure a decent life. It seems as though these treatments really “have been contrived solely to conform people to our narrow ideas of ‘normal’” (Reis 2013, 142; McCullough 2002). A reason for this is that human adults are afraid of “atypicality.” They possess specific ideas, culturally situated and socially built, about the kind of body human beings must have, and it is this normativity, imagined by adults, which is incised upon the body of intersexual children (Roen 2009, 22).

Secondly, another objection is that early surgery is “worthless mutilation” that causes damage to individuals who have not chosen to be subjected to those interventions. Indeed, those interventions reduce sexual pleasure in many cases (Morland 2009, 286), impose a sex that might not coincide with future gender identity, and in most cases are irreversible. Furthermore, outcome studies are scarce and surgical outcomes are uncertain (Mieszczak et al. 2009). According to some, infant genital surgery is a human rights issue which should be remedied through “a complete moratorium on all surgical and hormonal treatments that are not medically necessary” (Dreger 2006, 87; Mason 2013; Smith 2013; United Nations 2015). Furthermore, such interventions are defined as “torture” by the United Nations (United Nations 2013, 18–19).

Thirdly, in this field of paediatric treatments, the lack of the consent of individuals who undergo a definitive sex assignment raises difficult issues. On the one hand, they concern the exercise of the decision-making ownership of the parents or the guardian—that is, those who have the power and the responsibility to decide on individuals who cannot do it for themselves. The goal of the proxy consent is to arrive at the choice that better than others favours the best interest of the child. The balance of costs and benefits should, in this case, also take into account the possible side effects that the assignment of early surgical sex brings with it: pain, lifelong depression, incontinence, and scarring. On the other, there are the issues related to the child’s capacity and right to self-determination. We should protect the future autonomy of these children because their inability is temporary, and they will soon have a full decision-making capacity that distinguishes those who can sign an informed consent form. The ability of individuals to make decisions according to their values and beliefs should be able to be exercised before their bodies and their developing sexual and gender identity is irreversibly compromised. We will come back later to explore this aspect.

Finally, this approach is charged with heteronormativity to the extent that considers homosexuality and transgenderism as bad outcomes (Dreger and Herndon 2009, 202).

According to this perspective, all the clinical management of intersex newborns is judged controversial (Hester 2004; McCullough 2002, 150) and “maintains a morally and legally unacceptable paternalism” (Daaboul and Frader 2001, 1578). For these reasons it seems necessary to rethink the whole clinical management of intersex births, starting from the attribution of a new meaning to such births and the shapes of these newborns’ bodies.

Moreover, these critics argue in favour of the provisional attribution of a sex and gender role without resorting to surgical intervention on the child’s body, deferring final decisions to the time when intersex children can express their will and preferences. “Therefore, our society’s concept of gender diversity needs to be reconstructed to include persons whose Gender Assignment is provisional” (Ozar 2006, 30). We shall come back on these issues in the last part of the paper.

Now, if we look at intersexuality per se and not only to its management, the first issue to consider is how to “categorize” these people and what their birth represents. Rephrasing these articulated questions into only one: how many sexes are there?

Exploring the Concept of Sex

Whether we endorse an interventionist approach or whether we endorse an approach based on a provisional assignment of gender without carrying out early surgery, the common grounding view is that there are two sexes. Unreflective thinking of Western societies places items and beings in two different categories: male and female. Religious views often endorse this dichotomy. For example, the three monotheistic religions possess the myth of Noah, who is required by God to place in the ark a couple (or more) of each living being, a male and a female, to repopulate the Earth (see Genesis 7–9).3 However, this vision is grounded in a pre-scientific thought: not all living beings are male and female, some change their sex during their life, some have two sexes, some reproduce by parthenogenesis and other variations are present.

Taking the birth of intersexual children seriously imposes a rethinking of the concept of “sex.” How can intersexuality be categorized? The first way to put these children into our scheme is staying in line with the status quo of sexual categorization and thinking that they are strange, monstrous, or “against nature.” It is the traditional way of thinking. Nature is considered to be stable and considered to move forth schematically and with regularity, while whoever does not conform to this modus is deemed to be an outcast and an exception to the rule (as if one day the sun were blue). According to this way of conceiving intersexuality, we ought to readjust these births back to the standard, leading the exception back to the rule. To come into the world without sharply defined sex is akin to having a sixth finger. It is up to the physician to restore the standard condition: early surgery is thus considered to be the solution. It is anomalous to have a sixth finger just as it is to be of sex which is not well defined, and it is for this reason that one attempts to reinstate the rule of nature.

If we were to shift the focal point from nature to the well-being of the person, then we would deal with intersexuality differently. Balancing the pros and cons of surgery and its consequences, we can decide to not go through with surgery, but still to attribute intersexual children to one of two gender categories. If physicians were to recognize that intersexual children could grow up successfully even without surgery, they would not perform this action. They maintain the same categorization of the former thinkers: there exist only two sexes, male and female, but they shift the focus to the task of the physician, they do not operate to restore the law of nature, but they consider which is the well-being of the patient.

Starting from this point, some thinkers suggest going beyond this form of binarism. Indeed, if we believe that intersexed children can live an ordinary life with their genitalia, then it is feasible that intermediate genitalia are as normal as fully male and fully female genitalia. If we think that the pressure for surgery in infancy and childhood spreads the notion that bodies have to look a sure way to be acceptable (e.g., Holmes 2002), then we could think that a body that does not fully comply with the main sexual categories (male and female) belongs to another sex. Here the focus is again on the categorization of the world. Abandoning traditional procedure of classifying people, we may see some other sexual categories emerge.

Firstly, the world is not only male and female. In observing the world from a scientific point of view, one can discover various cases of sexual diversity. For example, there are some species of fish that change their sex during their lifetime, birds that can change it as well under certain conditions, some creatures (such as snails) that are both male and female, and a certain degree of sexual variability that can also be observed in mammals, for example spotted hyenas (Roughgarden 2004; Callahan 2009). These examples prove that the world of sex is too complex to be divided into only two categories which appeared late in the development of life on planet Earth, while for centuries and millennia life reproduced itself without sexual differentiation, which represents instead only a point of its evolution.

Secondly, some could agree with these claims yet nevertheless argue that for human beings the situation is sharper: one could accept that there is not a stable idea of masculinity and femininity in the world, that some species do not have a stable sex or can have no sex at all, yet approach the matter differently as far as human beings are concerned. The percentage of intersexuality in the spectrum of the human condition is tiny since in general sex is well defined as either male or female, while in other cases there are ambiguities that can be corrected with the right instruments.

Moreover, the power of sexual variance observation could be weakened questioning the relationship between humans and other species. Even though in other species sexes are not fixed, or present some variance inside, or are not two, in humans this binarism could be fixed and stable. For this reason, we should analyse the question independently.

The main first question we ought to ask ourselves is: how do we establish the sex of a newborn baby? In most cases, this is carried out by examining the genitalia, and this is sufficient to determine whether we are dealing with a boy or a girl. We have faith that the midwife will know the answer; however, she occasionally makes mistakes, as in the case of 5-alpha-reductase deficiency: the newborn baby appears to be a girl, but he has a crypto-penis, such as described in the novel Middlesex ( Eugenides 2002). Hence, it is clear that the appearance of the genitalia is not enough.

Human sex is multidimensional, meaning that multiple factors determine it. We have genetic (or genotypic) sex, gonadal sex, hormonal sex, phenotypic sex, and psychological sex (Kemp 2006; Fausto-Sterling 2012). For many of us, the various types of sexes coincide. For example, if one has an “average-sized” penis, two functional testes, a certain level of testosterone coupled with a low level of estrogen, and the presence of only one XY genotype in body cells, one can be proud and happy to be a male (the opposite for woman). However, this is not always the case, and intersexuals prove that sex is a much more complicated issue. There are people for whom the various types of sex (genetic, gonadal, hormonal, phenotypic, and psychological) do not blend in the “common manner.”

How can we classify these individuals? Collocating them within our standard binaristic classification is impossible, since they are in the middle of all or of certain sexual features, and unless we select a sexual characteristic which overrides the others, we cannot insert them into one of our categories. Intersexuals are not a male or a female hiding under a shell: we cannot classify them as male and female according to current criteria.

Each of these sexual factors (hormonal, gonadal, and so on) can be represented as a segment between two extremes: male and female. The points in this segment are infinite, and each of us has a place in this continuum. The position that we occupy in each of these continua is our sex. If we were to look closer, we would find that we hardly occupy the extreme of the continua, as expressed by Callahan (2009, 161–162):

No two of us is identical, even with regard to sex. And of course, the endpoints of this graph are hypotheticals, ideas, mental constructs, not real people. For some reason, we choose to call only the people who fall near the dead centre of this chart intersex. But the centre is just as essential as any part of the continuum—without the middle, neither end is possible. And the middle really has no obvious boundaries. In truth, we are all intersex, living somewhere in the infinite, but punctuated, stretch between man and woman.

In short, our sex is given by our position in a multidimensional graph (in which the axes represent genotypic sex, gonadal sex, phenotypic sex, and hormonal sex). If we place these values in a graph in which the ordinates represent the number of people (from 0 to infinite) and the abscissas represent the variability between male and female (from 0, for male, to 1, for female), we will probably find that the values form a U-shaped curve: most people are in the upper part of the curve nearest to the values of zero and one, and represent our idea of male and female; others, however, albeit less than the first two groups, are in the central part of the curve, or in the lower part of the curve. In short, there are no doubt individuals who fall in the middle of the curve. Nowadays, with our categories, only one transversal cut is made, which divides the curve into two symmetrical parts: a male part and a female part.

However, why do we not operate more than one cut? If we do not think that the only-two-sex division is written in Nature, or in God’s designs, and if we think that intersexual individuals can lead satisfying lives, why shouldn’t we recognize their sexual difference as an ulterior standard between male and female? We propose making two longitudinal cuts, which divide the curve into three parts; the first two (the highest) would represent a female and male component, and a third segment would hence represent what remains. It is not our intention to commit to a discussion on how many sexes exist therein this new label; regardless of whether there be one or many more, it must be recognized that there is something which is not reducible to male and female, (e.g., Fausto-Sterling1993; Ainsworth 2015).

Some could argue against this type of sex: the low incidence of intersex individuals indicates that it is they who have “problems,” who are outside the path of nature, who are freakish, strange, who are errors of biology (see Reis 2009, 70–71). There are two sides to this objection: a naturalistic objection (“they are biological errors”) and an epistemological objection (“there are too few: larger numbers bestow more importance”).

Against the former statement, one way to answer is saying that “Nature does not make mistakes.” The concept of “error” is human, not biological, and it is us human beings who make the mistake of being aware of what we ought to be doing this may be a form of the is–ought guillotine (e.g., Hudson 1969). Of course, we conceive some products of nature as intrinsically bad, as in the case of cancer. However, we could query if we should call them “errors.” The concept of “error” seems connected to the concept of “goal”: someone is in error if she has an aim to achieve and goes about it in the wrong way. For example, if someone wants to go to Sydney but catches the flight to New York, she is wrong, she is making an error. In this sense the concept of “error” attributed to nature is a personification, it is an attribution of will.

The objection could be rephrased: intersexuality can be seen not as an error but still as something terrible for the individuals carrying this condition. However, we have argued that a child can live without any problem with its intersexual condition (except in some cases when the condition is life-threatening, but mostly this is not the case).

Regarding the second part of the objection: can the number make the difference? Firstly, this point can be seen as a form of sorites paradox: when is the number significant enough to count? We cannot identify a precise point starting from which the number is sufficient. Suppose that in the world there are only sharp males and females, and suppose a virus begins to kill males up until the point where only one hundred of them remain alive. Are we justified to maintain that the “male sex category” still exists? So, what if there is only one male? Our intuition would drive us to consider that that person is not a “strange female,” but instead another different entity. The same could be said for intersexuals. As far as the definition of sexual categories is concerned, plain numbers seem to be irrelevant: from a neutral point of view, if only one person does not fulfil the condition of being male or female, this person is another “entity” for these categories.

If we were to accept that only number counts and recurrent events are important, we would be elevating “statistics” to a dignity of “natural law,” for example, in the case in which we observe certain recurring phenomena and events in nature and consider these happenings to be essential events only because of their frequent incidence in our world. What does not fall within the majority is “queer,” “strange,” or “illness.” Statistics suggest which events are more or less frequent and not which event is “normal,” or “good,” or “acceptable” nor which isn’t. If we were to admit that small numbers are an index of illness, then we would have to accept cold as a universally unpleasant condition and recognize that individuals with red hair have a terrible disease. We usually explicate our concept of “illness,” “normality,” and so on with the concept of “function” or “infection,” not with the concept of “greater number.” Intersexual individuals are a great starting point for a discussion on the epistemology of medicine since they are raising ethical as well as epistemological issues. The resolution of the problem is beyond the scope of this paper; nevertheless, it is important to underline that one of the issues that arises with intersexuality is the role of statistics in the process of constructing concepts. Statistics could be a good choice-criterion but a bad criterion for concept-justification.

A stricter objection could be that the third sex group is impossible to “perform,” that it is an abstract invention, where nobody would live or where it is impossible to live. We take this objection seriously.

Someone could say that the new sex is superfluous. It could be redundant because it only points out the genital shape, but nobody knows what we have under our garments: gender attribution is performed without seeing the genitalia (Kessler 1998). For example, a transgender person is recognized as belonging to the new gender because he/she performs the new gender, even if he/she has not had genital surgery. This is due to the fact that there is not a specific way to perform the new sexual category. This objection is a mixture of two parts.

Firstly, someone could affirm that everybody falls within the gender category of “man” or “woman,” without the possibility of exception. If this is true, then the new category is superfluous since all human beings externally appear as man or woman, and for our aim the shape of genitalia is irrelevant. However, someone that would be recognized as different than male and female exists (the most famous cases were individuals in Australia and in France, see Dow 2010; Pascual 2015). Some individuals represent themselves as something different. These people want to be recognized as different, and their behaviour is labelled as “(gender)queer” since they lie outside the boundaries set by the standard of cultures.

Secondly, someone could persist in this objection by stating that these behaviours are only “freakish,” they are merely a modification of the standard (like a fashion). This scholar may hold that a radically different way to perform one’s sexual diversity, a new gender category, is just impossible. This objection is historically false. There is no logical impossibility for the third gender. Some cultures have experienced it, for example, hijras in India and two-spirits in some indigenous people of North America and also in other places (Herdt 1996). Nevertheless, we must ask ourselves if its institution is possible nowadays, in Western society. Where can the third gender be established? It is difficult to answer this question.

There are movements in our society that show some interest in the issue. For example, genderqueer people try to destroy gender binarism while preferring to have a fluid identity or identify themselves as genderless people. They probably envision a genderless future, but we can use their experience to construct a new way to perform gender. An alternative could be that intersexual people follow their example to perform their diversity. A problematic issue is the language. In fact, there are three pronouns for the third singular person: one for men, one for women, and one for items; meanwhile there is no pronoun for “intersexuals.” However, we could follow the example of a genderqueer community who invented the new pronoun “zhe” (Corwin 2009) or the case of Swedish convention of the gender-neutral pronoun “hen,” which was introduced in the language to overtake the “hon”(she)/“han”(he) dichotomy. More, in general, we live in a time of cultural change which gives us the opportunity to radically modify gender-behaviour and pave the way to the institution of a third way of being. In the future, the boundaries of gender will be hazier, and it will be easier to accept diversity.

The institution of new sexes could have legal importance (as it has had where it is permitted by law, as in Malta, Australia, New Zealand, Germany, India, and France) because it could help physicians and families in cases where attribution is not possible. When an intersex baby is born, physicians and families may struggle to give them a name and may require some time to observe them to understand their sex; but at the same time bureaucracy requires an answer: it is essential to know if they are a he or a she. We would answer: neither a he nor a she, the baby belongs to another sexual category.

Moreover, the recognition of future possibilities could provide the appreciation of the particular situation of intersexual people. Many intersexuals affirm that they belong to neither male nor female groupings, that they do not acknowledge themselves as male or female, that they want their radical diversity acknowledged on a daily basis. Attributing non-traditional sex to a newborn baby could attract jokes and wariness, but this is every forerunner’s destiny and would likely diminish as society becomes more familiar with this change to traditional categories.

What we Ought to do

We have argued that intersexuality as a unique condition does not exist, that it is instead a collection of different conditions that may have some phenomenical similarities, making it more appropriate to refer to “intersexualities” or a specific condition. We then argued in favour of an extension of sexual categories beyond male and female, referring to “others” (we did not go on to consider exactly how many categories this “others” is comprised of). After analysing the clinical management of intersexual births (the so-called “treatment paradigm”) and the reasons that support the abolition of early sex assignment surgery, we go on to conclude by giving some indications on how to welcome these babies into the world.

Any choice one could make at birth represents an imposition upon the baby since the newborn cannot provide any form of consent nor participate in any choice; nevertheless, we make a decision. The question is: based on which principle do we make this choice?

The application of the conventional and presumptive criteria of legal age establishes by law that underage people, having not yet reached full maturity, are not regarded as autonomous individuals. They are judged, with some exceptions, incompetent to make decisions regarding their health. The law also establishes that, usually, their legal representatives—parents, or guardians in their absence—provide proxy consent for clinical treatment and surgeries to be carried out on children’s bodies.

In paediatric ethics studies, one of the main focuses of attention has been the topic of who, why, and within which boundaries decisions are made for those who are judged incapable of deciding for themselves, along with the issue of the exercise of minor’s self-determination regarding every personal aspects of their life, such as health and body.

In the case of intersex newborns, there is no doubt about their inability to make their own decisions. Some solid moral reasons justify the attribution of decision-making ownership to the parents of minors, compared to the other stakeholders involved in the lives of infants for purely professional reasons or related to them by less significant affective relationships.

Such parental decision-making ownership finds a limit in the obligation not to harm, and this harm can also include any impact on the ability of the individual to exercise their autonomy in future. Their interpretation of beneficence prevails on the other interpretations, but it cannot lead to the presumption of making personal and permanent decisions better than could the intersex person herself. Surgical sex assignment leads to irreversible body modifications, body perception, and functionality, and clinical and pathological reasons do not justify this. Only individuals whose body undergoes such treatments should give informed consent to these practices.

The ethical perspective proposed here is that the moral autonomy of individuals should be encouraged and safeguarded (e.g., see Faden and Beauchamp 1986; Grisso and Appelbaum 1998). Autonomy, in the precise context of intersex births, is the means to reach the well-being of these children, or at least it is the way that offers a greater chance of achieving such a goal. It is assumed that the individuals’ well-being is greater when their sexual and gender identity coincides with the shape of their body and with their desires about their self. Autonomy allows individuals to establish for themselves this aspect of personal life, that is, to integrate body and personal and social identity. The incompetence of these minors is constitutive, provisional, and destined to be replaced by full decision-making and self-determination capacities. Identity and bodily integrity of intersex infants must, therefore, be defended from surgical or other assaults until they can decide for themselves. This is because, even taking into consideration that parents are relatively in the best position in order to make right decisions for children who cannot choose for themselves (Wilfond et al. 2010), the children’s interest, their parent’s desires, and the physician’s “suggestions” may be in conflict (Hester 2004; Roen 2009, 24). Parents’ efforts to make the best choice for children may be misdirected by a distorted or incomplete understanding of the phenomenon of intersexuality and the benefits of early medical and surgical therapies.

When physicians say that surgery is “what parents want,” we should ask, specifically, what it is that parents ultimately want—that is, what they mean ultimately to achieve and whether surgery will satisfy these aims. If what “normal parents” want is the best chance for their children to flourish, we should not take for granted that normalized appearance guarantees flourishing. (Feder 2014, 90)

Postponing the choice is the most common way of dealing with “very personal” or “life-altering” choices, involving all aspects that could have a profound effect on the identity of the individuals or lead to irreversible changes to their bodies. A procedure of this kind is used when it is believed that neither the parents nor the physicians nor anyone else can decide on behalf of the individual whether or not to undergo bodily changes since these decisions are a fundamental tenet of individual freedom (Diamond and Beh 2006, 107; Diamond and Garland 2014). Freedom to manage their own lives and bodies following their values and personal beliefs is safeguarded by postponing the decisions to the moment in which these individuals—who will gradually become more capable over time—will be able to decide for themselves.

The main reason that justifies the protection of intersexual individuals’ autonomy is that there are many uncertainties associated with these surgical practices, as already mentioned above. A list of these can be observed as follows.
  • There is no certainty that the gender identity of the individuals who undergo surgery will coincide with the sex that has been surgically assigned to them. For some intersex conditions, there is a higher rate of “gender unpredictability,” so individuals do not quite feel comfortable with the sex they were assigned.

  • Gender dysphoria, which sometimes presents in non-intersexual people, is more probable among intersex individuals: this is due to the fact that surgery is often brought forth on the basis of suggestions and wishes of achieving cosmetically and functionally better outcomes, but not on the basis of future gender identity, which is at the moment impossible to foresee, and the formation process of which is still unknown.

  • Postponing interventions on the bodies of intersex individuals “is the only scientifically sound and ethical way to ensure that the surgery coincides with each child’s gender identity and interests in how his or her body might appear” (Diamond and Garland 2014, 3).

  • There is no certainty that surgery does not hinder the sexual satisfaction of the individuals, due to pain or compromise as a sexually functioning adult.

  • There is no certainty regarding the long-term effectiveness of early medical and surgical intervention.

  • There is no certainty that interventions of this kind will improve quality of life and satisfaction of operated individuals.

  • Finally, empirical data suggests that in some cases intersex “persons who have had this surgery during infancy report being unhappy with their surgical results” (Howe 2006, 117).

These uncertainties have led to a much-requested review of the practices of intersex medical care. Rather than modifying infants’ and children’s bodies to adjust to a conventional threshold of social acceptability, we should modify this threshold and acceptance “of the various forms, considered as individual variations of the expression of sex/gender of a species (like the shapes of the ears or nose)” (Howe 2006, 117).

However, it is observed that the practices of sex assignment through surgical and medical treatments and the practice of cultural assignment of one of the two traditional gender roles to intersex people emphasizes the social unacceptability of intersex human conditions and perpetuates the mechanism of denial and concealment of this finding of fact. Although postponing the choice regarding sex surgery confirms the inviolability of the bodily integrity of human beings without their consent—even when it concerns infants and children4—it also confirms the fact that intersexuality is not yet considered a mere possible anatomical deviation from the male and female types, that it is not yet socially acceptable, and thus it perpetuates the dichotomous view of human beings. In this perspective, people who have nonconforming genitals are considered to be socially acceptable, while people who are non-gender conforming cannot be left in an ambiguous and intermediate condition. In this case, a provisional choice that allows the possibility of an individual’s autonomous choice in the future should be achieved. However, which choice?

Let’s start with a trivial consideration. Experiences with transsexualism suggest that every gender attribution (even the simplest) could be provisional. Indeed, each newborn could potentially develop a feeling of dissatisfaction with their imposed gender or a form of gender dysphoria at some time throughout their infancy, childhood, or adolescence. In the “standard” case (when sharp sex is present), the decision of a gender attribution is made with the presupposition that the child in question will develop a coherent gender identity. Until we develop a method to foresee the future gender identity of the baby (if this will ever be possible), we provisionally make a choice on the basis of statistics: in the majority of cases, female newborns will develop a coherent gender identity. If this is the case, then we could decide upon the basis of statistics, although we have seen that statistics could be a good choice-method, not a good concept justification-method.

How about when sex is not clearly defined? Two alternatives remain: the first is not to assign any gender, leaving the “sex box” blank; the second is to attribute a provisional gender.

If we choose the first option, for the sake of coherence we mustn’t attribute a gender to newborns with a sharp sex either: in fact, if the reason for this missing attribution is the impossibility of foreseeing the gender identity of the intersexual child, the same impossibility must be admitted and recognized as far as standard male and female children are concerned.

The other possible strategy, probably more feasible, is that of attributing provisional sex and provisional gender to all newborns alike, a gender that a competent person can modify if she needs. In the case of intersexual children, we can use the same method of the sharp-sex children, that is to say, a statistical approach. There is a high probability that a genetic male-child with cloacal exstrophy will develop masculine gender identity (Maier-Bahlburg 2005), while there is a probability that a chimeric person develops an identity that it is identifiable neither with man nor woman. Parents could attribute provisional sex and rear their child provisionally within a gender, hoping that they have made the correct choice.

Conclusion

We have presented the traditional approach to the birth of intersexual children (sex assignment, coupled with early surgery and hormone treatment) and the reasons for which this approach should be refuted. We then proceeded to focus on the epistemology of sex, displaying the traditional basis on which the Western bisection into two separate sexes has been established and the non-existence of pertinent reasons to bolster this structure, since in some non-human animals the distinction is not as sharp and since the low numerical incidence of sexual indetermination in human beings is not proof that intersexuality is an illness or is “against nature.” We proposed a new method to conceptualize sex and gender, carrying out two (or more) cuttings instead of only one in the continuum line of sex.

Anthropology illustrates that in some non-Western cultures the diversity of sexes and genders is more readily accepted, that other gender categories (in addition to “male” and “female”) can exist, and that in Western societies there are certain movements (like “gender-queer”) that oppose sexual binarism. We go on to conclude in favour of an enlargement of sex categories. We argue in favour of a provisional sex and gender attribution without resorting to any cosmetic surgery, in order to achieve individual self-determination, bodily integrity, and reduction of unease in the case of gender dysphoria. Lastly, we propose that provisional gender attribution into sexual categories should be made resorting to statistical data.

Footnotes

  1. 1.

    In the past they were called “hermaphrodites” (see Dreger 1998), but for many reasons, this word is considered pejorative by intersex activists and scientific communities. The word comes from the name of a mythological character who hold feminine and masculine anatomical features.

  2. 2.

    In some states this is no longer required, for example, Germany, Australia, and New Zealand.

  3. 3.

    For a discussion of intersexuality from a religious perspective, see for example Cornwall (2009).

  4. 4.

    This instance was also supported by the United Nations Human Rights Council (United Nations 2013, 23), by the Europe Council Parliamentary Assembly, Resolution 1952 (Parliamentary Assembly of the Council of Europe 2013) and by the United Nations call against violations of the human rights of LGBTI people (United Nations 2015).

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Copyright information

© Journal of Bioethical Inquiry Pty Ltd. 2018

Authors and Affiliations

  1. 1.Department of Philosophy and Education ScienceUniversity of TurinTurinItaly
  2. 2.Pediatric PneumologyRegina Margherita Children’s Hospital, Città della Salute e della ScienzaTurinItaly
  3. 3.Pediatric EndocrinologyRegina Margherita Children’s Hospital, Città della Salute e della ScienzaTurinItaly

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