Anti-Transgender Legislation Affects Intersex Kids, Too!

State legislatures across the country are introducing bills that would criminalize or restrict providing healthcare to transgender minors. What many don’t realize is that in the rush to control transgender minors’ bodies, many of these bills also include specific exemptions allowing “corrective” procedures on intersex traits.

These bills attempt to set a standard for how individuals can feel good in their bodies, and what a “normal” body should look like, in regards to sex and gender.

Here at interACT, we support our transgender peers in their fight to access lifesaving, necessary care. It’s all about individuals leading decisions about their own bodies.

Tap each section to learn more. You can download this page as a PDF here.

Intersex and transgender flags crossing, with text that reads Bodily Autonomy is a Human Right
Illustration by Alex Yoon for Transgender Education Network of Texas, Intersex Awareness Day 2019

Transgender means having a gender that is different than what adults presumed based on visible anatomy at birth. Cisgender means an individual’s gender is the same as what was presumed at birth. Intersex is an umbrella term for many different variations in sex characteristics that can cause an individual not to fit the two usual paths of human sex development. Intersex traits can affect chromosomes, gonads and other internal reproductive organs, genitals, and hormone production and response. Some intersex traits, such as having a large clitoris, are obvious at birth, while others may not be discovered until puberty or later in adulthood—or not at all.

Some common intersex variations include Androgen Insensitivity Syndrome (where an individual is born with XY chromosomes, internal testes, a vulva and vagina, and a hormonal response that converts testosterone into estrogen) and Congenital Adrenal Hyperplasia (where an individual is born with XX chromosomes, ovaries and a uterus, and genitals that may look more like a vulva, a small penis, or appear between the two). A person can be both intersex and transgender.

Intersex and transgender youth have a shared interest in autonomy around their medical decisions, and bills like these deny it to them both. For transgender youth, the ability to access affirming care, including puberty blockers and hormones, is crucial to their well-being. These bills criminalize a basic human right. For intersex youth, autonomy means preserving choices about alterations to their sex traits so that they can decide for themselves how they want their bodies to look and function. These bills go out of their way to take that decision from them.

ection 3. That a NEW SECTION be added: 26-10-38. Perception of minor’s sex--Prohibited practices--Exceptions. Section 26-10-37 does not apply to the good faith medical decision of a parent or guardian of a minor born with a medically-verifiable genetic disorder of sex development, including: (1) A minor with external biological sex characteristics that are irresolvably ambiguous, such as a minor born having 46, XX chromosomes with virilization, 46, XY chromosomes with undervirilization, or having both ovarian and testicular tissue; or (2) When a physician has otherwise diagnosed a disorder of sexual development, in which the physician has determined through genetic testing that the minor does not have the normal sex chromosome structure for a male or female.
Screenshot of South Dakota’s HB 1057’s intersex exemption—banning necessary care for transgender youth while encouraging “normalizing” surgery on intersex traits. The bill failed on February 10th, 2020.

Medical experiences within transgender and intersex communities may look different: transgender youth often proactively seek out medical care to affirm their gender and alleviate dysphoria, while intersex youth are told there is something wrong with them when it is discovered they have natural variations in their sex traits. Intersex youth may be subjected to medical interventions to “normalize” their bodies without their consent–including surgeries that create a vaginal opening, reduce the size of a clitoris, and remove hormone-producing gonads–often before the age of 2. In the vast majority of cases, these procedures are not urgently necessary and could safely be delayed until the intersex individual could make their own decision about what (if any) procedures are right for them. Instead, doctors can offer irreversible surgeries to parents with no opportunity for the patient to consent or refuse. Many, many intersex people grow up to wish they could have participated in the decision making around these procedures, which come with risks like chronic pain, scarring, loss of sexual function, urinary incontinence, sterilization, PTSD, and a surgically enforced sex assignment that does not match their gender.

Banning patient-initiated care that reduces the risk of depression and suicide for trans teens while encouraging the continuation of non-consensual surgeries on intersex infants–which have been denounced as a human rights violation by the United Nations, the World Health Organization, the American Academy of Family Physicians, and more–is exactly the opposite of legislation to protect vulnerable children.

We urge all of those involved in the discussion around these harmful bills not to forget that they directly impact intersex youth as well as transgender youth. It may be tempting to focus only on the group under direct attack and to gloss over smaller clauses for intersex exception–but intersex youth have been the “exception” in medicine for far too long already, occupying a space where basic ethics and “do no harm” don’t always seem to apply. Bills that restrict gender-affirming care for trans minors also promote non-consensual “normalizing” procedures on intersex children. Denying both groups control over their bodies upholds a very narrow and fear-based definition of “normal”–one that looks like a “typical” (binary and cisgender) body, at whatever cost to the individual.

In practice, this would mean that transgender people must be prevented from changing their bodies, while intersex people must be prevented from keeping theirs.

Additionally, many organizations fighting these bills have taken the approach of defending medical authority–in essence, saying these bills are wrong because they restrict doctors’ practice or don’t defer to the medical community’s judgment about what the best treatment options are for their patients.

We urge you to consider that the medical model has been the source of ongoing harm to intersex people. To this day, advocacy for intersex human rights often is stalled by decision makers who would rather “defer to the medical experts” than to the people whose lives have been affected by the practices in question. While most doctors certainly want what is best for their patients, unfortunately medical practices do not always line up with patients’ rights and well-being. Let’s not make the mistake of implying that no medical practices may ever be in need of regulation.

The reason these bills are wrong is that they deny the autonomy of two vulnerable groups of individuals.  

The ACLU keeps an up-to-date list on anti-LGBTQ legislation nationwide. Freedom for All Americans keeps a list of anti-transgender state legislation.

On January 14, 2020, South Dakota Representative Fred Deutsch introduced HB 1057 – called the “Vulnerable Child Protection Act” – which would make it a felony to provide consensual gender-affirming care to the state’s minors. The bill defines sex as “the biological state of being female or male, based on sex organs, chromosomes, and endogenous hormone profiles,” and prohibits certain surgical procedures as well as puberty blockers and the provision of hormones “for the purpose of attempting to change or affirm the minor’s perception of the minor’s sex, if that perception is inconsistent with the minor’s sex.” Notably, the bill contains an explicit exception for non-consensual and medically unnecessary interventions on intersex minors.

We have templates! Feel free to use and edit these letters to write to your state officials, or paste them into email comment boxes on their websites. See this guide for how to find and contact your elected officials.

Letter Template: Bills Restricting Transgender Healthcare Access / Encouraging Intersex Surgeries

[Date]
Re: Opposition to [bill number here]

To Whom It May Concern:

I write to express my strong opposition to [bill number]. Not only does this bill disregard the basic rights, bodily autonomy, and lived experience of transgender youth, it also harms another extremely vulnerable group of young people: those born with variations in their sex characteristics.

“Intersex” is an umbrella term for different variations in sex traits–such as chromosomes, gonads, genitals, and hormone production and reception–that may cause individual bodies to expand typical definitions of male or female. Being intersex is actually pretty common: at about 1.7 percent of people, it’s the same incidence as twin births. Of people born with these variations, some are noticed at birth while others might not be discovered until later in life if at all. While intersex is not the same as transgender–which means having a gender that is different from what adults presumed based on a child’s visible sex characteristics at birth–both communities have a shared interest in participating in life-altering medical decisions, and both communities are put in jeopardy by this bill.

This bill penalizes those who help trans kids get care they desperately need and want, yet the bill supports the continuation of surgeries intersex kids don’t want or need. Transgender youth often struggle to access necessary care to affirm their gender. Intersex youth share a different, but conceptually similar struggle. Most differences in sex traits don’t cause health risks for intersex children, yet they are often subjected to invasive, non-consensual procedures like clitoral reductions, vaginoplasties, and sterilizing gonadectomies to make their anatomy look more “typical” because people are afraid of their bodies. Most of these procedures are performed under the age of 2, long before the child has any ability to understand what is happening, let alone voice what their wishes are for their own body. These surgeries are condemned by every single human rights organization to have considered the issue and intersex people have expressed for decades that their bodies are just fine as they are. Scarring, urinary incontinence, loss of sexual function, sterilization, post-traumatic stress disorder, and having a surgically enforced sex assignment that does not match their gender identity are just some of the painful consequences of rushing to perform surgery on intersex kids instead of waiting for them to grow up and decide for themselves. 

Like their transgender peers, intersex youth deserve to make these intensely personal choices. These are choices about how they want their bodies to look and function, and choices that will impact the kinds of relationships and families they will be able to create. This bill goes out of its way to take those decisions from them. Banning patient-initiated care that reduces the risk of depression and suicide for transgender teens while explicitly allowing non-consensual surgeries on intersex infants–which have been denounced as human rights violations by the United Nations, the World Health Organization, the American Academy of Family Physicians, and more–is exactly the opposite of legislation to protect vulnerable children. Please oppose. Intersex and transgender lives depend on it. 

[your name]
[your address]

Letter Template: Sex Testing in High School Sports Bills

[Date]
Re: Opposition to [bill number here]

To Whom It May Concern:

I write to express my strong opposition to [bill number]. Not only does this bill disregard the basic rights, bodily autonomy, and lived experience of transgender youth, it also harms another extremely vulnerable group of young people: those born with variations in their sex characteristics.

“Intersex” is an umbrella term for different variations in sex traits–such as chromosomes, gonads, genitals, and hormone production and reception–that may cause individual bodies to expand typical definitions of male or female. Being intersex is actually pretty common: at about 1.7 percent of people, it’s the same incidence as twin births. Of people born with these variations, some are noticed at birth while others might not be discovered until later in life if at all. While intersex is not the same as transgender–which means having a gender that is different from what adults presumed based on a child’s visible sex characteristics at birth–both communities have a shared interest in participating in life-altering medical decisions, and both communities are put in jeopardy by this bill.

This bill, prescribing “sex testing” for any student whose sex is “disputed,” would cause tremendous and unnecessary harm to youth, whether they are LGBTQ, intersex, or not. A policy of submitting students to invasive and embarrassing medical investigations based on sex classification opens all students up to potential harm. Under bills like these, being gender non-conforming, particularly tall or short for one’s age, or merely a target of general bullying would be grounds to subject a child to humiliating and potentially traumatizing genital examinations, genetic testing, and/or imaging of their internal organs. In addition, legal liability may arise for the state as a result of this bill. Students that have been subjected to this type of testing may have claims based in Equal Protection, the Genetic Information Nondiscrimination Act, and the bill may also violate state and federal privacy and sex discrimination laws.

This bill would not only be a tremendous invasion of privacy, but would also be entirely unfeasible. Such an approach assumes, incorrectly, that all individuals can be neatly categorized as “male” or “female” based on their sex characteristics, and that an individual’s characteristics will always “line up” on one side of the binary or the other. These assumptions are flawed for several reasons. First, as discussed above, intersex individuals have bodies that transcend traditional notions of male or female. For example, some children are born with androgen insensitivity syndrome (AIS), meaning that while they have XY chromosomes, the genes carried on their chromosomes cause their external characteristics to develop as typically female. Many of these children, and their families, are not even aware that they have XY chromosomes until puberty or even later. Chromosomes other than XX or XY, such as XO or XXY, are possible in other variations, and some people may have XX chromosomes in some cells and XY in others. Other intersex people may be born with genital differences, or with gonads that combine ovarian and testicular tissue. Second, there is no one trait that reliably determines an individual’s sex — other tha