An offer you can't refuse: coercing consent to surgery through the medicalization of gender identity.

• Author: Silver, Anne E.

Abstract

Can consent to medical treatment be voluntary when legal rights, benefits, and protections are conditioned on the completion of surgery? This Note will analyze this question by applying the doctrine of informed consent and basic bioethical principles to the "medical model " that has emerged as the dominant method for determining the legal status of transgender and intersex individuals. Under the medical model, reclassification of legal sex-a process that provides access to legal rights, resources, and benefits-is available to trans persons only after the individual has undergone permanent, body-altering surgery. This Note will argue that conditioning legal status on the completion of surgery coerces or manipulates consent in such a manner as to render consent involuntary under the doctrine of informed consent. This Note will suggest alternatives to the medical model that do not violate the doctrine of informed consent and basic bioethical norms.

INTRODUCTION

The right to bodily integrity is a right deeply ingrained in Western consciousness and culture. (1) A fundamental aspect of this right is the ability to make individual decisions about medical care with limited governmental interference. To illustrate the importance of this principle, consider the following hypothetical. Imagine that the federal or state government provided important legal protections, benefits, and access to social programs to minorities only if the person conformed to a predetermined set of physical characteristics that were more typical in non-minorities. Individuals whose traits did not match the stipulated requirements could obtain legal protection and access to public resources only if they underwent invasive reconstructive surgeries to alter their physical traits. The overwhelming majority of people would consider such a policy to be abhorrent and in violation of basic Western norms of individual autonomy and human dignity. It would also raise the question of whether consent to surgery given under such a policy would be voluntary. While the government may regulate healthcare policies and standards, the idea of a government using its regulatory power to induce consent to an unwanted medical treatment is deeply troubling.

Despite the clear violation of fundamental Western principles regarding individual autonomy raised by the hypothetical in the preceding paragraph, intersex and transgender individuals are placed in a comparable position. Such individuals are excluded from numerous legal benefits, protections, and rights because of their gender identity. These benefits may be obtainable after the person has taken the steps required by law to reclassify legal sex. However, reclassification is generally available only to those who have completed specified surgical procedures. (2) Surgical intervention is required for legal reclassification regardless of whether such procedures are wanted or medically advisable. This Note will address this legal system through the lens of medical ethics and will argue that conditioning benefits on surgery renders consent to medical procedures involuntary in clear violation of basic bioethical norms and principles.

Part I will explore the contours of this legal structure that bases the provision of rights and benefits on surgical intervention by discussing the need for reclassification, the legal requirements for reclassification, and the benefits derived from reclassification. Part II will analyze this system through the "voluntariness" requirement of informed consent and underlying bioethical principles. Finally, Part III will discuss alternatives to the current medicalized system of gender identity, including adopting a model of self-identification that does not require medical intervention.

1. The Medicalization of Gender Identity

   Gender identity is a fundamentally different classification than legal sex. Gender identity reflects a personal conception of oneself as male or female, whereas legal sex is determined at birth by a cursory examination of external genitalia. (3) This system leaves open the possibility that there will be people for whom the legal designation of sex does not conform to gender identity or a more rigorous biological determination of sex. This Part will discuss the effects created by this incongruence, the process for reclassifying legal sex, and the benefits derived from such reclassification.

   1. Sex, Gender, and Legal Sex: Three Distinct Inquiries

      Sex is generally considered to be a biological determination. (4) Legal sex is designated at birth, typically based on just one factor-external genitalia. (5) By contrast, medical experts determine biological sex in a much more nuanced fashion by looking to a number of biological factors, including genetic or chromosomal sex (XX or XY); gonadal sex (reproductive sex glands); internal morphological sex (prostate, seminal vesicles, vagina, uterus, and fallopian tubes); external morphological sex (genitalia); hormonal sex; and phenotypic sex (secondary sex characteristics). (6) Some experts also include assigned sex or gender of rearing and gender identity as part of the inquiry into biological sex. (7) For the purposes of this Note, it is sufficient to observe that there is no simple or singular test for biological sex. (8) Medical professionals often urge parents to surgically "correct" ambiguities in external genitalia at birth, often basing sex determination on whether the genitals are capable of penetrative sex. (9) Implicit in this process is the assumption that sex will always conform neatly to "male" or "female." (10) The determination of sex in the context thus ignores the possibility that sex markers may not be congruent."

      The process of assigning legal sex also disregards the possibility that gender identity may not conform to legal sex as determined by external genitalia. Gender refers to the "cultural or attitudinal characteristics (as opposed to physical characteristics) distinctive to the sexes," (12) and reflects the "social dimensions of personhood." (13) Gender identity refers to a person's own conception of how one fits into the social construct. As gender identity is an individual identification based on social characteristics, it is not inevitably linked to biological markers of sex. "Transgender" and other similar terms have emerged to describe people whose gender identity does not conform to biological sex markers. (14) For the purposes of analysis to follow in this Note, the word "transgender" (15) will be used to describe all individuals who fall outside the standard sex binary in some way, including both those whose gender identity is inconsistent with biological sex and those whose biological sex is ambiguous, as the processes for altering legal sex designations are identical for both groups. (16)

   2. The Need for Reclassification: Benefits, Rights, and Protections Linked to Legal Sex

      There is much at stake in the legal classification of sex. Numerous legal protections, benefits, and rights are linked to sex, (17) and congruency between gender expression and legal sex reduces the likelihood that a trans person will be subjected to harassment and discrimination because of gender identity. (18) In states that do not permit same-sex marriage, legal sex is a crucial component in determining whom a person may marry. (19) Legal sex designations also impact the determination of parental rights. (20) Placement in sex-segregated facilities, including prisons, shelters, and social programs, is typically based on legal sex, which may put trans people in danger. (21) Some social services facilities, including homeless shelters, may deny access entirely to trans people. (22) Transgender individuals also report being denied housing, employment, healthcare, and public accommodations as a result of their gender identity. (23) Except in the handful of states that list gender identity as a protected category, trans people can be fired for their gender identity. (24) Transgender students may be expelled from schools, and others fear applying for higher education will reveal old names and sex assigned at birth. (25)

      Reclassifying legal sex allows trans people to obtain identification congruent with expressed gender, thereby decreasing the likelihood of being denied access to services, resources, and facilities. (26) Gender-confirming identification (27) allows trans people to navigate the world without being "outed." (28) This is particularly true in the employment context where:

      [a]ccess to participation in the US economy has always been conditioned on the ability of each individual to comply with norms of gendered behavior and expression, and the US economy has always been shaped by explicit incentives that coerce people into normative gender and sexual structures, identities, and behaviors. (29) In a survey conducted by the National Center for Transgender Equality, 47% of respondents reported experiencing an adverse job outcome, such as being fired, not being hired, or being denied a promotion due to gender identity. (30) An overwhelming 90% of respondents reported being harassed or discriminated against in the workplace. (31) Legal reclassification serves to mitigate economic and social marginalization, and permits trans people to participate more fully in society.

   3. Legal Requirements for Sex Reclassification

      Reclassifying legal sex provides trans people with greater access to resources, protection, and privileges, and represents legal recognition of a fundamental aspect of identity. Unsurprisingly, many trans people seek to alter assigned legal sex to obtain these benefits. Through statutory and judicial intervention, states have devised criteria for determining when legal sex can be amended. (32) Jurisdictions that do not permit amendments are said to follow a "biological model" where legal sex is fixed at birth and cannot be changed. (33) Early cases applying the biological model emerged in the...