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ABA Midyear Meeting

Intersex children should be allowed informed consent on surgeries, ABA House says

By Stephanie Francis Ward

February 6, 2023, 4:30 pm CST

A resolution asking medical professionals to obtain consent from minors with intersex traits before doing medical or surgical intervention was approved Monday by the ABA House of Delegates at the association’s midyear meeting.

Resolution 511 was brought by four ABA entities—the Section of Civil Rights and Social Justice, the Center for Human Rights, the Coalition on Racial and Ethnic Justice and the Commission on Sexual Orientation and Gender Identity.

Most intersex surgeries are performed on children under the age of 2, according to the resolution’s report. The report also says people with intersex traits have been pressured to have surgery or receive treatments. Some youth would like medical intervention, but others who had it experienced trauma as a result of the choices that were made for them, according to the report.

“This resolution is really about protecting babies. We’re talking about babies who can’t speak for themselves,” said Beth Whittenbury, immediate-past chair of the ABA Section of Civil Rights and Social Justice. “They are not even aware of those traits, but at some point they will become aware, and at that point they should be able to make a decision about what happens.”

Brenda Robinson, chair of the ABA Commission on Youth at Risk, also spoke in favor of the resolution.

“As adults, we assume we should make decisions for children. But most of the time, they do know their own bodies and what they want,” she said.

Follow along with the ABA Journal’s coverage of the 2023 ABA Midyear Meeting here.

There is consensus among experts that such surgeries for minors should be delayed until they have the capacity to participate in the decision-making process, unless the treatment is medically necessary, the report states.

The American Academy of Pediatrics and the American Psychological Association do not have policies for treating intersex patients, spokespeople told the ABA Journal. The APA does have a task force working on a guidance report about “intersex/difference of sex” development issues.

Also, the American Medical Association in 2018 published guidance stating that parents are expected to make health care decisions in their children’s best interest, and in doing so, they are expected to promote their capacity to be independent decision-makers.

The ABA resolution report cites recent state laws in Arizona and Alabama that prohibit gender-confirming health care for minors who are transgender, with an exception for youth with intersex traits. Patient consent is not necessary in either law.

Alternatively, California in 2018 passed a law that recommended delaying any procedure on children with intersex traits until they can participate in the decision-making process.