News Law and Policy

Suit Claiming Doctors Performed Sex-Assignment Surgery Without Consent Can Move Forward

Jessica Mason Pieklo

The suit, filed on behalf of a child born with an intersex condition, claims social workers and doctors violated his constitutional rights by assigning him a biological sex shortly after birth.

A South Carolina judge has ruled that a historic lawsuit can move forward alleging that the South Carolina Department of Social Services and two hospitals performed medically unnecessary sex-assignment surgery on a 16-month-old child.

The case involves a child referred to in court filings as M.C. who was born with an intersex condition in which 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. According to the complaint, the child, now 8 years old, has shown signs of developing a male gender and identifies himself as a boy.

In May 2013, 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 filed a lawsuit on behalf of M.C.’s adoptive parents, Mark and Pam Crawford, alleging 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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Attorneys representing the defendants moved to dismiss the federal case, but a court denied that motion. The defendants then tried to delay the state court medical malpractice claims while they appeal the denial of the motion to dismiss; the state court denied that request as well.

“Our young client was profoundly harmed when doctors and state agents decided to remove his penis and testicle,” said Anne Tamar-Mattis, co-counsel and executive director of Advocates for Informed Choice, a nonprofit advocacy organization that specializes in advocating for the rights of intersex children, in a statement. “We look forward to continuing the fight on M.C.’s behalf and to ensuring that no child ever has to undergo such life-altering surgeries without informed consent.”

According to Tamar-Mattis in an interview with Rewire last May, approximately one in 2,000 children are born with an intersex condition. Many children with these conditions develop as a boy or girl as they grow. But, according to Tamar-Mattis, since the 1950s doctors have performed this type of sex-assignment surgery on infants, even when the child’s ultimate gender remains unknown and despite the fact that 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 participate in making medical decisions about their own bodies.

That medical recommendation is in line with the heart of M.C.’s legal complaint, which is that he was not given a voice and therefore had no ability to consent to the procedure doctors performed on him. “The court’s decision moves M.C. a step closer to justice,” said Kristi Graunke, SPLC senior supervising attorney, in a statement. “This ruling holds doctors accountable when they recommend such drastic and irreversible procedures for infants but fail to ensure caregivers are fully informed about the risks and options.”

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