When M.C. was only 16 months old and in the care of the South Carolina Department of Social Services, state officials made a decision that would forever change the child’s life. Those officials determined M.C. would be biologically female.
M.C. was born with an intersex condition where reproductive or sexual anatomy does not fit typical definitions of male or female. Doctors referred to M.C. as a “true hermaphrodite,” and while the child was in the care of the South Carolina Department of Social Services, doctors, in cooperation with social services employees, decided to surgically remove M.C.’s male genitalia. Now, at 8 years old, M.C. has shown signs of developing a male gender and clearly identifies himself as a boy.
Filed by the Southern Poverty Law Center (SPLC), Advocates for Informed Choice (AIC), and pro bono counsel for the private law firms of Janet, Jenner & Suggs and Steptoe & Johnson LLP on behalf of M.C.’s adoptive parents Mark and Pam Crawford, a first-of-its-kind lawsuit charges that the decision to medically assign M.C. a biological sex amounted to medical malpractice and a violation of M.C.’s constitutional rights. According to the lawsuit, filed in both state and federal court, the state of South Carolina violated M.C.’s constitutional rights when doctors surgically removed his phallus while he was in foster care, potentially sterilizing him and greatly reducing, if not eliminating, his sexual function. The lawsuit describes how the defendants violated M.C.’s substantive and procedural due process rights, outlined in the 14th Amendment, by subjecting M.C. to the unnecessary surgery “without notice or a hearing to determine whether the procedure was in M.C.’s best interest.”
The lawsuit also charges that the doctors committed medical malpractice by failing to obtain adequate informed consent before proceeding. The plaintiffs allege that the defendants told M.C.’s guardians to allow the sex assignment surgery but failed to provide information regarding the surgery’s significant medical risks. Most important, the Crawfords contend, state officials and doctors did not disclose that the procedure was medically unnecessary.
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According to Anne Tamar-Mattis, executive director of Advocates for Informed Choice, which specializes in advocating for the rights of intersex children, about 1 in 2,000 children is born with an intersex condition. Although children with these conditions typically develop as a boy or girl as they grow, since the 1950s doctors have performed this type of sex assignment surgery on infants, even when the child’s ultimate gender remains unknown. “It used to be something that was kept very quiet,” Tamar-Mattis told Rewire. “Surgeons would do the surgery and tell the parents never to tell the kids. But that’s changing. Intersex is becoming more public over the last 20 years, and this case is about ensuring the safety of all children who do not have a voice.”
Although long-term outcomes of today’s genital surgeries in children have not been well-studied, Tamar-Mattis says many doctors and advocates recommend that children with intersex conditions be assigned a gender at birth but postpone any unnecessary surgery until they are old enough to self-identify with a gender and make their own decisions about their bodies.
The lawsuit places surgeries like the one M.C. endured alongside others instances in which reproductive and bodily decisions were made without patient consent. Indeed, M.C.’s case joins a long line of SPLC cases brought on behalf of individuals harmed by medical recklessness, including a 1973 case on behalf of young African-American women who were sterilized against their will. M.C.’s adoptive parents hope the lawsuit will bring an end this practice altogether. “By performing this needless surgery, the state and the doctors told M.C. that he was not acceptable or loveable the way he was born,” Pam Crawford said in a statement. “They disfigured him because they could not accept him for who he was—not because he needed any surgery. M.C. is a charming, enchanting and resilient kid. We will not stop until we get justice for our son.”
The lawsuit, M.C. v. Medical University of South Carolina, was filed in the County of Richland Court of Common Pleas. M.C. v. Aaronson was filed in the U.S. District Court for the District of South Carolina.