A new paper from Julie Greenberg of the Thomas Jefferson School of Law in San Deigo argues that disability law is a potential avenue for protecting people with an intersex condition from unnecessary medical procedures.
“People with an intersex condition who suffer discrimination in the provision of health care could assert that they have been subjected to differential treatment because of their perceived disability,” the paper states. “Intersex activists could use disability laws and join the battle with others in the critical disability movement who are working to end the shame and stigma associated with disabilities and disorders.”
Greenberg documents the history of gender stereotypes in medical decision making regarding people with intersex conditions and the use of certain medical procedures on infants, both males and females, to correct alleged abnormalities in their sexual development.
Citing a host of research studies and Disability Rights Washington’s 2007 report on the Ashley Treatment, the paper calls for a new framework requiring court oversight for all “cosmetic genital surgeries,” and other unnecessary medical procedures.
For Greenberg, the traditional deference to parental decision making in medical procedural matters affecting a child’s reproductive ability – or other procedures that are by their nature “invasive and irreversible” – violates the child’s constitutionally protected fundamental rights to liberty and privacy, as well as their rights to autonomy and bodily integrity.
“The law recognizes that people whose bodies, behaviors, and identities are different require protection from societal discrimination,”the paper states. “Feminists and LGBT advocates have helped courts understand how discrimination based on sex, gender, and sexual orientation stereotypes constitutes unlawful sex discrimination. Similarly, disability advocates have educated society and legal institutions about the need to modify societal norms to fit the needs of all people.”