Sex assignment

Assignment in cases of infants with intersex traits, or cases of trauma

Observation or recognition of an infant's sex may be complicated in the case of intersex infants and children and in cases of early trauma. In such cases, the infant may be assigned male or female, and may receive intersex surgery to confirm that assignment. These medical interventions have increasingly been seen as a human rights violation due to their unnecessary nature and the potential for lifelong complications.

Cases of trauma include the famous John/Joan case, where sexologist John Money claimed successful reassignment from male to female of a 17-month-old boy whose penis was destroyed during circumcision. However, this claim was later shown to be largely false. The subject, David Reimer, later identified as a man.

The number of births with ambiguous genitals is in the range of 1 in 2,000 to 1 in 4,500 (0.05% to 0.02%). Typical examples would be an unusually prominent clitoris in an otherwise apparently typical girl, or complete cryptorchidism in an otherwise apparently typical boy. In most of these cases, a sex is tentatively assigned and the parents told that tests will be performed to confirm the apparent sex. Typical tests in this situation might include a pelvic ultrasound to determine the presence of a uterus, a testosterone or 17α-hydroxyprogesterone level, and/or a karyotype. In some of these cases a pediatric endocrinologist is consulted to confirm the tentative sex assignment. The expected assignment is usually confirmed within hours to a few days in these cases.

Some infants are born with enough ambiguity that assignment becomes a more drawn-out process of multiple tests and intensive education of the parents about sexual differentiation. In some of these cases, it is clear that the child will face physical difficulties or social stigma as they grow up, and deciding upon the sex of assignment involves weighing the advantages and disadvantages of either assignment. Intersex activists have criticised "normalising" procedures performed on infants and children, who are unable to provide informed consent.

History

In European societies, Roman law, post-classical canon law, and later common law, referred to a person's sex as male, female, or "hermaphrodite", with legal rights as male or female depending on the characteristics that appeared most dominant. Under Roman law, a hermaphrodite had to be classed as either male or female. The 12th-century Decretum Gratiani states that "Whether a hermaphrodite may witness a testament, depends on which sex prevails". The foundation of common law, the 16th Century Institutes of the Lawes of England, described how a hermaphrodite could inherit "either as male or female, according to that kind of sexe which doth prevaile".

Legal cases where sex assignment was placed in doubt have been described over the centuries. Research suggests that within early modern common law, particularly in England and colonial America during the seventeenth and eighteenth centuries, such cases were treated as matters of legal determination rather than medical diagnosis, and were resolved through evidentiary procedures in court. Rather than applying a fixed biological standard, courts considered a range of physical, behavioral, and social factors when assigning sex, without sharply distinguishing between what would later be conceptualized as “sex” and “gender.” Decisions were typically based on testimony and social context, reflecting the broader common law tradition of relying on juries and community knowledge in fact-finding. Toward the late eighteenth century, with the medicalization of intersexuality, medical and scientific authorities began to play a more central role in such determinations, marking the beginning of a shift toward the modern view of sex as a biological and binary category.

Before the 1950s, assignment was based almost entirely on the appearance of the external genitalia. Although physicians recognized that there were conditions in which the apparent secondary sexual characteristics could develop contrary to the person's sex, and conditions in which the gonadal sex did not match that of the external genitalia, their ability to understand and diagnose such conditions in infancy was too poor to attempt to predict future development in most cases. In the 1950s, endocrinologists developed a basic understanding of the major intersex conditions such as congenital adrenal hyperplasia (CAH), androgen insensitivity syndrome, and mixed gonadal dysgenesis. The discovery of cortisone allowed survival of infants with severe CAH for the first time. New hormone tests and karyotypes allowed more confident diagnosis in infancy and prediction of future development.

Sex assignment became more than choosing a sex of rearing, but also began to include surgical treatment. Undescended testes could be retrieved. A greatly enlarged clitoris could be amputated to the usual size, but attempts to create a penis were unsuccessful. John Money and others controversially believed that children were more likely to develop a gender identity that matched sex of rearing than might be determined by chromosomes, gonads, or hormones. The resulting medical model was termed the "Optimal gender model". Historical accounts indicate that the development of sex-assignment surgery further reinforced the idea that sex could be medically constructed and permanently fixed, with surgical intervention functioning as a means of establishing legally recognized sex status.

Challenges to requirements for sex assignment

Australian government guidelines published in 2013 stated that "individuals should be given the option to select M (male), F (female) or X (Indeterminate/Intersex/Unspecified)" and that government "[d]epartments and agencies will continue to collect sex and/or gender information to inform service delivery, perform their specific function or to contribute to broader government statistical or administrative purposes."

A 2014 report for the Dutch Ministry of Justice and Security allowed that while many gender-specific provisions in legislation no longer existed, sex registration, which had been introduced in 1811, was still required for a number of important state functions: family law, pregnancy protections, gender-segregated facilities, affirmative-action policies, and "a limited number of laws and regulations that are specifically aimed at men or women, such as military service". It also found that a majority of civil servants foresaw problems if official gender identifications were removed expanded beyond male and female. It noted that gender "seems to be increasingly experienced as 'sensitive' personal data, but is not yet protected as such by privacy regulations", and advocated for more flexibility and less official requests for gender identification.

In 2015, Canadian activists petitioned the British Columbia Human Rights Tribunal to force the government to stop recording the sex of newborns on birth certificates in order to avoid what complainants called "misgendered birth certificates" which they asserted were harmful to transgender people. In 2021, Canada changed the "sex" designation on the Census survey to "sex at birth" in order to reflect that a small number of Canadians subsequently change their gender.