Intersexuality and the Law: Why Sex Matters

By Knouse, Jessica | Law & Society Review, December 1, 2012 | Go to article overview
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Intersexuality and the Law: Why Sex Matters


Knouse, Jessica, Law & Society Review


Intersexuality and the Law: Why Sex Matters. By Julie A. Greenberg. New York: New York University Press, 2012. 169 pp. $32.00 cloth.

For nearly fifteen years, Julie Greenberg's scholarship has illuminated the complex legal and social issues faced by intersex individuals. Her new book, Intersexuality and the Law, synthesizes and develops upon her previous scholarship. It not only provides a comprehensive review of the law's past and present treatment of intersexuality, but also offers strategic suggestions for the future and, perhaps most importantly, democratizes the debate by making it accessible to those without legal training. Greenberg uses (and I have used) the term "intersex" to refer to individuals "with a congenital condition whose sex chromosomes, gonads, or internal or external sexual anatomy do not fit clearly into the binary male/ female norm" (p. 1). She, however, acknowledges and discusses the fact that some have advocated replacing the term "intersex" with "disorders of sex development" ("DSD").

The book is divided into three parts. Part I describes the historical perception of intersex individuals as " 'freaks' " (p. 11), as well as the historical treatment of intersex infants through genitalnormalizing surgeries. Greenberg's descriptions illustrate the stereotyping inherent in doctors' sex-selection processes: For infants with XY chromosomes, the size of the penis was generally determinative, whereas for infants with XX chromosomes, the focus was on reproductive capacity. While practices have improved and the feminization of XY infants is now less common, Greenberg reports that many doctors continue to perform surgeries, without regard for the possibility that they may be destroying the ability to experience sexual satisfaction. Recognizing that intersex individuals are not monolithic in their views of the surgeries, Greenberg carefully assesses the circumstances under which doctors should legally be able to operate. She explains that informed consent doctrine is designed to protect patient autonomy, but that when minors are involved parents often have substantial latitude to make decisions. After exploring the competing rights and potentially conflicting interests of intersex infants and their parents, Greenberg makes two recommendations: first, that judicial approval be required prior to any surgery that will result in sterility and, second, that some type of safeguard be implemented prior to other surgeries.

Part II assesses the legal mechanisms for sex determination in three contexts: marriage, official documentation, and housing and bathroom use. Beginning with marriage, Greenberg situates the issues faced by intersex individuals within the broader context of social opposition to same-sex marriage-which, she explains, is the driving force behind the law's strict adherence to sex-based distinctions.

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