NewYorkUniversity
LawReview
Current Issue

Volume 82, Number 2

May 2007

A Child’s Expertise: Establishing Statutory Protection for Intersexed Children Who Reject Their Gender Assignment

Emily A. Bishop

Intersexed children are born with genitalia and/or reproductive organs that do not look like those of most biological males or females. Doctors and parents usually assign an intersexed child a gender at birth or during early childhood. Occasionally, an individual will reject his or her gender of assignment and will want to take on a different gender role. Some clinicians and intersex advocates instruct parents to accept an intersexed child’s expressions of gender identity and to support the child’s gender role change. There is a risk, however, that parents may resist or prevent a child’s gender transition due to their own discomfort with the idea or based on a physician’s recommendation. A statutory framework that allowed intersexed minors to complete a “social gender transition,” coupled with a provision equating parental interference with this transition with actionable neglect, would protect intersexed children’s autonomy and prevent the trauma that can result from a forced existence in a gender role with which a child does not identify. The proposed framework would likely survive a constitutional challenge by the parents of an intersexed child because the harm caused by the parental decision to interfere with a child’s gender expression removes such interference from the realm of constitutionally protected parental decisionmaking.