Sex assignment

Sex assignment (sometimes known as gender assignment) is the determination of an infant's sex at birth.^[1] In the majority of births, a relative, midwife, nurse or physician inspects the genitalia when the baby is delivered, and gender is determined, without the expectation of ambiguity.^[2] Assignment may also be done prior to birth through prenatal sex discernment.

Even though the term assignment suggests a decision on the part of the parents or medical professionals, the act almost universally constitutes an observation or recognition of inherent primary sexual characteristics of a baby. In the majority of cases, the gender of rearing of the child matches the assigned gender. The act of assignment carries the implicit expectation that future gender identity will develop in the gender of anatomy, assignment, and rearing.^[3]

In some cases, the assigned sex or one or more of these related observations and conclusions are found to be incorrect. In the case of some transgender individuals, gender identity is not consistent with the assigned sex or sex of rearing.^[4]

In the case of intersex individuals, born with sex characteristics, such as chromosomes, gonads, or genitals, that do not fit typical notions of female or male bodies,^[5] there may be complications in making a sex assignment^[6] and that assignment may not be consistent with the child's future gender identity.^[7] Reinforcing sex assignments through surgical and hormonal means may violate the individual's rights.^[8][9][10]

History

The discernment of an infant's sex is almost universally considered an observation or recognition of an inherent aspect of a baby.^[1] The rationales for sex assignment and consequential registration appear to have been little questioned. A Dutch report on gender registration states that sex registration was introduced in 1811 as an intrinsic component in population registration, due to gender-specific rights and responsibilities, such as military conscription.^[11] Many discriminatory provisions in legislation no longer exist, but the provisions remain for rationales that include "speed of identification procedures".^[11]

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, sex assignment is generally taken to require medical treatment to confirm that assignment, but this is disputed in part due to the human rights implications of such treatment.^[5][12]

Intersex is a broadly defined term that usually denotes the presence of atypical sex characteristics: at least some aspect of the genitalia, internal organs, gonadal tissue, or chromosomes is more typical of the other sex. When the external genitalia appear to be in between, they are described as ambiguous.^[13]

Cases of trauma include the famous John/Joan case, where sexologist John Money claimed successful reassignment from male to female at age 17 months of a 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.

In approximately 1 in 2,000 infants, there is enough variation in the appearance of the external genitalia to merit hesitation about appropriate assignment by the physician involved.^[14] Typical examples would be an unusually prominent clitoris in an otherwise apparently typical girl, or complete cryptorchidism or mild hypospadias 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 17-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.

In a much smaller proportion of cases, the process of assignment is more complex, and involves both determining what the biological aspects of sex may be and choosing the best sex assignment for the purposes of rearing the child. Approximately 1 in 20,000 infants is 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 he or she grows up, and deciding upon the sex of assignment involves weighing the advantages and disadvantages of either assignment.

History

Criteria for assignment in these cases have evolved over the decades, as clinical understanding of biological factors and diagnostic tests have improved, as surgical techniques have changed and potential complications have become clearer, and in response to the outcomes and opinions of adults who have grown up with various intersex conditions.

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."^[15]

The view of gender as a purely social construction, and gender identity as a result of nurture rather than nature reached near-universal acceptance, especially among liberal, progressive, and academic portions of Western society. The primary goal of assignment was to choose the sex that would lead to the least inconsistency between external anatomy and assigned psyche (gender identity). This led to the recommendation that any child without a penis or with a penis too small to penetrate a vagina could be raised as a girl, taught to be a girl, and would develop a female gender identity, and that this would be the best way to minimize future discrepancy between psyche and external anatomy in those infants determined to be biologically male but without a penis that meets medical norms (e.g., cloacal exstrophy), and also in those like in the John/Joan case who lost it to accidental trauma in early infancy.

From the 1960s, pediatric surgeons attempted and claimed success with reconstruction of infant genitalia, especially enlargement or construction of vaginas. The recommended rules of assignment and surgery from the late 1960s until the 1990s were roughly:

• Any XX infant, no matter how virilized, should be raised as a girl to preserve the chance of future fertility. A large, protruding clitoris should be reduced in size with a nerve-sparing recession or reduction rather than simple amputation.
• Any undervirilized XY infant should be raised as a boy if the penis could be expected to be large enough to stand to urinate and to insert into a vagina for coitus. If it was too small or atypically formed (e.g., cloacal exstrophy) for these functions, it was recommended that the baby be assigned as female, any gonads removed, a vaginal opening surgically constructed, and estrogen provided at puberty.
• An infant with mixed chromosomes (e.g., mixed gonadal dysgenesis or true hermaphroditism) could be raised either way depending on appearance of genitalia and size of phallus.
• Gender identity is set by 2 years of age and reassignment after that age should not be attempted unless requested by the patient.
• Non-disclosure of the intersex condition to the individual on whom sex assignment treatment was conducted.^[16][17]

Since the 1990s, a number of factors have led to changes in the recommended criteria for assignment and surgery. These factors have included:

• Public disclosure by intersex individuals and organizations about unsatisfactory sexual function or incongruent gender identity, and criticism of infant surgery for "psychosocial rationales".
• In 1997, the rest of David Reimer's story, referred to above as John Money's John/Joan case, was made public. He was the boy who had lost his penis to a botched circumcision at 8 months in 1966, was reassigned from boy to girl at 18 months with further surgery to remove testes and estrogen treatment beginning at age 12. Although John Money had described the reassignment as a success in the 1970s, Reimer went public with his account of continuing to have a male gender identity despite the reassignment to a female sex of rearing. At age 15, Reimer reverted to living as a male. At age 38, he committed suicide.
• A large proportion of XY infants born with cloacal exstrophy and raised as female from early infancy have requested reassignment to male gender in late childhood and adolescence.

Clinical recommendations in the 2000s for assignment changed as a result:

• Raise nearly all XX infants with functional ovaries as female.
  • The only rare exception would be completely and unambiguously virilized XX infants with CAH, who might be raised as male with genital surgery deferred.
• Raise most ambiguous XY infants with testes as male unless the external genitalia are more female than male, marked androgen insensitivity is present, and testes are absent or non-functional.
  • Raise as male any XY infant with unambiguous micropenis.
  • Raise as male any XY infant with functional testes and normal androgen sensitivity but atypically formed or absent penis.
• Raise infants with mixed gonadal tissue, true hermaphroditism, or other chromosome anomalies as the sex most consistent with external genitalia, since gonads are usually nonfunctional.
• Gender identity is set by 1–2 years of age and reassignment after that age should not be attempted unless requested by the patient.

These recommendations do not explicitly necessitate surgical or hormonal interventions to reinforce sex assignments, but such medical management persists worldwide, utilizing rationales such as the mitigation of parental distress and trauma, reducing the likelihood of stigma, making a child feel more "normal", and improving marriage prospects.^[18]

Controversy

Controversies over surgical aspects of intersex management, have often focused on controversies regarding indications for surgery and optimal timing. However, intersex and human rights organizations have criticized medical models as they are not based on the consent of the individuals on whom such irreversible medical treatments are conducted, and outcomes may be inappropriate or poor.^[18][19] Anne Tamar-Mattis, for example, states that, "The true choice is not between early and late [surgery], but early surgery versus patient autonomy.^[19]

However, while surgical interventions remain experimental, and clinical confidence in constructing "normal" genital anatomies has not been borne out, medically credible pathways other than surgery do not yet exist.^[20] Changes to clinical recommendations in the current millennium do not yet address human rights concerns about consent, and the child's right to identity, privacy, freedom from torture and inhuman treatment, and physical integrity.^[7][8][9]

In 2011, Christiane Völling won the first successful case brought against a surgeon for non-consensual surgical intervention. The Regional Court of Cologne, Germany, awarded her €100,000.^[21]

In 2015, the Council of Europe recognized, for the first time, a right for intersex persons to not undergo sex assignment treatment, identifying issues with the pathologization of intersex bodies as inherently disordered.^[7] In April 2015, Malta became the first country to recognize a right to bodily integrity and physical autonomy, and outlaw non-consensual modifications to sex characteristics. The Act was widely welcomed by civil society organizations.^{[22][23][24][25][26]}

Reassignment of sex or gender

Sex reassignment is to a change in gender role or identity after an original and presumably incorrect sex assignment in infancy. This may occur in several types of circumstances.

• An early reassignment may be made to correct a clear error. The most common example of this is when a newborn is assumed to be a boy and assigned as such despite absent testes. If at 1–4 weeks of age it is discovered because of newborn screening, a salt-wasting crisis, or investigation of the cryptorchidism that he has ovaries, uterus, an XX karyotype, and CAH, the child is likely to be reassigned as female. When virilization is complete and unambiguous, reassignment may be declined or deferred. Any reassignment after the first month or two is no longer considered an "early reassignment".
• There have been cases where a male infant has been reassigned to female at several days, weeks, or months of age because of an irreparable birth defect of the genitalia or loss of the penis to trauma or other accident. This is no longer recommended by most experts in the field because of the publicity surrounding similar failed reassignments which became public in the 1990s, such as that of David Reimer.
• There have been cases where a child with an intersex condition has rejected a sex of rearing, asserted an opposite gender identity, and requested reassignment. Examples of this have occurred in adolescents with several forms of CAH and 5-alpha-reductase deficiency.
• The most common type of reassignment occurs when a child or adult with no detectable intersex condition assumes a different gender identity, and either requests or asserts the recognition of their new asserted gender. Such a person, and the general spectra of identities incongruous with gender assignment, is described as transgender. Therapy and/or surgery may be performed in adulthood and, since the 2000s, adolescence to align their body with their gender identity. People who seek these processes often form a subset identity among transgender people known as transsexual, albeit not all may identify as such.

Challenges to requirements for sex assignment

In recent years, the perceived need to legally assign sex is increasingly being challenged.^[11][27] A report for the Dutch Ministry of Security and Justice states "Gender increasingly seems to be perceived as a ‘sensitive’ identity feature, but so far is not regarded, nor protected as such in privacy regulations".^[11] Australian government guidelines state that "departments and agencies that collect sex and/or gender information must not collect information unless it is necessary for, or directly related to, one or more of the agency’s functions or activities"^[28]

See also

• History of intersex surgery for a more detailed history of the evolution of medical management of intersex conditions.
• Intersex human rights for a consideration of the human rights implications of medical management.
• List of transgender-related topics

References

1. Reiner WG (1997) Sex assignment in the neonate with intersex or inadequate genitalia. Archives of Pediatrics and Adolescent Medicine, Oct;151(10):1044-5. PMID 9343017
2. Reiner WG (2002). Gender identity and sex assignment: a reappraisal for the 21st century. Adv Exp Med Biol. 2002;511:175-89; discussion 189-97. PMID 12575762
3. Shaw, Alison; Ardener, Shirley (2005). Changing sex and bending gender, p. 21. Berghahn Books, ISBN 978-1-84545-099-1
4. Diamond DA, Burns JP, Mitchell C, Lamb K, Kartashov AI, Retik AB (2006). Sex assignment for newborns with ambiguous genitalia and exposure to fetal testosterone: attitudes and practices of pediatric urologists. J Pediatr. 2006 Apr;148(4):445-9. PMID16647402
5. United Nations; Office of the High Commissioner for Human Rights (2015). Free & Equal Campaign Fact Sheet: Intersex (PDF).
6. Mieszczak J, Houk CP, Lee PA. Assignment of the sex of rearing in the neonate with a disorder of sex development. Curr Opin Pediatr. 2009 Aug;21(4):541-7. PMID 19444113
7. Council of Europe; Commissioner for Human Rights (April 2015), Human rights and intersex people, Issue Paper
8. Swiss National Advisory Commission on Biomedical Ethics NEK-CNE (November 2012). On the management of differences of sex development. Ethical issues relating to "intersexuality".Opinion No. 20/2012 (PDF). 2012. Berne.
9. Involuntary or coerced sterilisation of intersex people in Australia, Australian Senate Community Affairs Committee, October 2013.
10. World Health Organization (2015). Sexual health, human rights and the law. Geneva: World Health Organization. ISBN 9789241564984.
11. van den Brink, Marjolein; Tigchelaar, Jet (2014), M/F and beyond, Gender registration by the state and the legal position of transgender persons. English summary, Ministerie van Veiligheid & Justitie
12. Cabral, Mauro; Carpenter, Morgan, eds. (2014), Intersex Issues in the International Classification of Diseases: a revision
13. Ora Hirsch Pescovitz, Erica A. Eugster (2004). Pediatric endocrinology: mechanisms, manifestations, and management, p. 253. Lippincott Williams & Wilkins, ISBN 978-0-7817-4059-3
14. Fausto-Sterling, Anne (2000). Sexing the Body: Gender Politics and the Construction of Sexuality. New York: Basic Books. ISBN 0-465-07713-7.
15. Australian Senate; Community Affairs References Committee (October 2013). Involuntary or coerced sterilisation of intersex people in Australia. Canberra: Community Affairs References Committee. ISBN 9781742299174.
16. Swiss National Advisory Commission on Biomedical Ethics NEK-CNE (November 2012). On the management of differences of sex development. Ethical issues relating to "intersexuality".Opinion No. 20/2012 (PDF). 2012. Berne.
17. Holmes, Morgan. "Is Growing up in Silence Better Than Growing up Different?". Intersex Society of North America. Retrieved 2015-12-27.
18. Carpenter, Morgan; Organisation Intersex International Australia (February 6, 2015). "Submission to the Australian Human Rights Commission: Sexual Orientation, Gender Identity and Intersex Rights Snapshot Report". Sydney: Organisation Intersex International Australia.
19. Tamar-Mattis, A. (August 2014). "Patient advocate responds to DSD surgery debate". Journal of Pediatric Urology 10 (4): 788–789. doi:10.1016/j.jpurol.2014.03.019. ISSN 1477-5131. Retrieved 2015-07-25.
20. Liao, Lih-Mei; Wood, Dan; Creighton, Sarah M (September 28, 2015). "Parental choice on normalising cosmetic genital surgery". BMJ: –5124. doi:10.1136/bmj.h5124. ISSN 1756-1833. Retrieved 2015-09-30.
21. Zwischengeschlecht (December 17, 2015). "Nuremberg Hermaphrodite Lawsuit: Michaela "Micha" Raab Wins Damages and Compensation for Intersex Genital Mutilations!" (text). Retrieved 2015-12-21.
22. Cabral, Mauro (April 8, 2015). "Making depathologization a matter of law. A comment from GATE on the Maltese Act on Gender Identity, Gender Expression and Sex Characteristics". Global Action for Trans Equality. Retrieved 2015-07-03.
23. OII Europe (April 1, 2015). "OII-Europe applauds Malta's Gender Identity, Gender Expression and Sex Characteristics Act. This is a landmark case for intersex rights within European law reform". Retrieved 2015-07-03.
24. Carpenter, Morgan (April 2, 2015). "We celebrate Maltese protections for intersex people". Organisation Intersex International Australia. Retrieved 2015-07-03.
25. Star Observer (2 April 2015). "Malta passes law outlawing forced surgical intervention on intersex minors". Star Observer.
26. Reuters (1 April 2015). "Surgery and Sterilization Scrapped in Malta's Benchmark LGBTI Law". The New York Times.
27. Chan, Emily. "Get gender off birth certificates, B.C. activists argue". CTV News. Retrieved 2016-01-01.
28. Australia; Attorney General's Department (2013). Australian Government Guidelines on the Recognition of Sex and Gender.