Anti-Trans Legislation Across the United States Permits Rights Violations Against Intersex Children

“Intersex” refers to the estimated 1.7 percent of the population with innate bodily traits that do not fit conventional expectations of female or male bodies. Also known as variations in sex characteristics, intersex traits cause a person’s chromosomes, gonads, or other internal reproductive organs, genitals, and/or hormone function to develop in ways that are not typically male or female. Some variations cause noticeable genital differences, and some affect the development of secondary sex characteristics.

Variations in a person’s sex characteristics almost never cause a medical problem that would require immediate surgery in childhood, yet in the 1960s, surgeons in the US popularized “normalizing” operations on intersex children’s bodies.

Usually performed in infancy or early childhood, thus without the patient’s consent, these surgeries—such as procedures to reduce the size of the clitoris, create or enlarge a vaginal opening, reroute a working urethra, or remove the gonads—are medically unnecessary. They are not designed to address any urgent physical health need. Rather, the operations are meant to conform the child’s body to stereotypes about the sex assigned to them—long before the child can express an opinion about how they want their body to look or function.

Some surgeons claim that operating early in childhood is intended to reduce stigma and help children “fit in,” but there is no evidence that these surgeries achieve their aim. Proponents of early surgery also claim that it will be easier for children to accept their sex assignment and develop a cisgender, heterosexual identity if from their earliest memories they have a more “typical”-looking body that is “capable” of future penile-vaginal intercourse. Performing these operations on young intersex children, in addition to often causing the very stigma and gender dysphoria they ostensibly seek to prevent, carries risks of scarring, loss of sensation, lifelong sexual dysfunction, urinary incontinence, psychological trauma, and permanent sterilization.

These surgeries—when conducted without the individual’s consent—violate rights to health, bodily integrity, and freedom from torture and ill-treatment. Medically unnecessary surgeries on intersex children have been condemned by international institutions such as the World Health Organization, UN human rights experts and multiple treaty bodies, and the Office of the United Nations High Commissioner for Human Rights. In the United States, three former US surgeons-general, several state medical associations, pediatrics professional bodies, the American Academy of Family Physicians, Lambda Legal, and the ACLU have criticized the practice .

Over the last several years, a spate of bills targeting transgender youth have been introduced in state legislatures across the US. In some cases, these discriminatory bills define gender-affirming care as unprofessional conduct, possibly affecting   the licenses of physicians who offer such care, and in other cases set criminal penalties for doctors as well as for parents who support their children in seeking the care that they need.

Many of these bills include an explicit exception for procedures performed on intersex children—usually described in these pieces of legislation as “children with a medically verifiable “disorder of sex development” – or “DSD,”  a medicalized term for intersex variations widely viewed as pejorative. These provisions purport to ensure that doctors who perform genital and other surgeries on young children with intersex traits are immune to prosecution. As of Intersex Awareness Day 2022, three states had passed such laws.

By writing these clauses into the same bills that attempt to punish performing the  same procedures on older transgender youth who are actively requesting such care, lawmakers are sending a clear message that their efforts were never about children’s rights. These bills are about enforcing sex and gender norms in a way that violates fundamental rights. The cornerstone of gender-affirming care is that it responds to needs that are defined and expressed by the patients themselves. What makes childhood intersex surgeries different is that they enact changes the patient never had the chance to choose or decline.

Roll over each state for more information about legislation that has been introduced or passed with provisions intended to allow medically unnecessary non-consensual surgeries on children with intersex traits to continue.


US States with Passed or Pending Bills that would purport to Authorize Intersex Surgery

  • Passed bill that would purport to authorize intersex surgery
  • Pending or attempted bill that would purport to authorize intersex surgery

**This research is a joint effort of interACT Advocates for Intersex Youth, the SOGIESC Human Rights Initiative of the UNC Human Rights Law Program, and Human Rights Watch. Contributors include: Holning Lau, Willie Person Mangum Distinguished Professor of Law at UNC School of Law; Erika Lorshbough, Executive Director of interACT; Sylvan Fraser, Legal and Policy Director at interACT;      Yasemin Smallens, LGBT rights coordinator at Human Rights Watch; and Kyle Knight, senior researcher on health and LGBT rights at Human Rights Watch. Research assistance was provided by the following students at UNC School of Law: Cam Bernstein, John Chambers, Sawyer Davis, Katie DeAngelis, Xavier Dyer, Nina Ganti, Connor Green, Nicholas Hatcher, Jacob Kincer, Ruth Kintzele, Jennifer Juipers, Melanie Kennedy, Yasmin Khodaei, Maggi Maloney, Meghan Parsh, and Elisa Sturkie