What may turn into the first major United States legal precedent on the constitutional due process rights of persons born with “disorder of sexual development” (DSD) has survived an initial hurdle of a motion to dismiss. In an as-yet unpublished written opinion issued on August 29 (and brought to my attention by an op-ed by Riki Wilchins posted on the Advocate.com website today, September 18), U.S. District Judge David C. Norton (D. South Carolina) denied motions to dismiss filed by several state employees who allegedly played a role in having sex reassignment surgery performed on M.C., then 17 months old, rejecting at this point their argument that they were entitled to qualified immunity against liability under 42 U.S.C. sec. 1983. Qualified immunity against liability for the performance of discretionary functions is extended to public employees when their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” according to the Supreme Court’s ruling in Harlow v. Fitzgerald, 457 U.S. 800 (1982).
A copy of the court’s opinion can be found on the website of Advocates for Informed Choice (formerly known as the Intersex Society of North America), www.aiclegal.org.
According to Judge Norton’s brief summary of the factual allegations (which are taken to be true in deciding a pretrial motion to dismiss a complaint), M.C. was born on November 20, 2004, in Greenville, SC, with the medical condition “ovotesticular difference/disorder of sex development,” which in this case manifested itself by the presence of both ovarian and testicular tissues. In other words, doctors could not easily determine whether this newborn infant would identify as male or female later in life, but there was some ambiguity about the child’s sex. “Physicians who evaluated M.C. in the first months and years of his life determined that, with surgery, the child could be ‘raised, surgically reconstructed, and treated to be male or female.'” M.C. was a premature baby and remained in the hospital until February 2005. A week after he was sent home, his parents decided they did not want him, and notified the Department of Social Services of their wish to relinquish parental rights. M.C. then became a ward of the state, living in various foster settings until he was placed with the couple who eventually adopted him, Pamela and John Mark Crawford, who brought this lawsuit on his behalf.
While he was in state custody, M.C. was further evaluated by some of the named defendants, all medical specialists, and they recommended to DSS officials “that M.C. undergo sex reassignment surgery in order to make his body appear female.” In other words, this child, who might ultimately identify as male once he became old enough to develop a gender identity, would be surgically rendered female — including terminating his physical capacity to function sexually and reproductively as male by removing the phallus and testes. DSS officials accepted the recommendation and instructed M.C.’s then-foster family to deliver him to the hospital where surgery was performed. When the Crawfords subsequently received and adopted him, state officials instructed them to raise him as female. But M.C. refused to be female. According to the complaint, M.C.’s “interests, manner and play, and refusal to be identified as a girl indicate that his gender has developed as male,” and now he is living as a boy “with the support of his family, friends, school, religious leaders, and pediatrician.” But, due to the surgery performed when he was an infant, he will never be able to function sexually as a male due to the missing penis and will not be able to procreate, due to the missing testes.
The essential claim in this lawsuit is that the state officials – medical personnel and social service personnel – who collaborated on this case violated M.C.’s constitutional rights by making this decision for him. This goes to the most essential claim of the movement for constitutional rights for people born with the DSD condition: that they should be entitled to be raised without surgical interference until they have identified their gender identity, whatever that may be, and are old enough and mature enough to decide for themselves whether they desire surgical alteration, being sufficiently informed about the consequences of such surgery.
In the complaint, M.C. asserts that he suffered a deprivation of liberty without due process of law. The court does not go into any detail about how M.C.’s procedural due process rights could have been protected, since that issue was not presented in ruling on this motion, but it seems clear, in light of the substantive liberty interests at stake, that the DSS officials should have petitioned a court for authorization to perform this operation, and the judge should have appointed a guardian ad litem with authority to research the medical and legal issues and present a well-informed argument to the court bolstered by qualified expert testimony. The movement for DSD rights, currently advanced by an organization called Advocates for Informed Choice (www.aiclegal.org), argues that such surgery on infants is not medically necessary and should not be performed without the informed consent of the individual once the individual has become capable of identifying his or her gender identity and weighing the consequences of surgical change. A court weighing this evidence would have to take into account that the Supreme Court has identified procreation as an important aspect of the liberty protected by the Due Process Clause, so public officials could not take an action that would terminate an individual’s procreative capacity without a strong justification. According to Judge Norton, the 4th Circuit Court of Appeals, whose rulings would be binding in his court, “have determined that forced sterilization, while not categorically unconstitutional, implicates significant due process concerns.” Exactly what level of judicial review would apply to such a case is not totally clear, but certainly some showing of medical necessity would be required to justify a surgical intervention with these consequences. And it is the position of the DSD rights movement that there is no medical necessity in most cases to perform sex reassignment procedures on infants, if there is no indication of an immediate harm to the health and well-being of the child. A court would have to weigh the evidence and consider the arguments and then make a decision that would be in the best interest of the child.
In moving to dismiss, the various defendants claimed qualified immunity in that there are no reported cases, much less definitive appellate decisions, that would support the claim that an established federal statutory or constitutional right was violated in this case, so they could not be held to have exceeded their discretion in having the procedures performed. But Judge Norton found that there is a substantial body of cases from the Supreme Court on down concerning procreative rights and personal autonomy (i.e., bodily integrity). We clearly require informed consent from individuals or their legal representatives before elective surgical procedures that can have life-altering impact, such as sex reassignment surgery performed in this case. The defendants claimed that M.C.’s birth parents had consented, but Judge Norton dismissed that for the nonsense that it is – there is no record that the birth parents actually consented, and they actually agreed to termination of their parental rights long before the doctors made their recommendation for this procedure.
Judge Norton found that “M.C. has articulated that defendants violated his clearly established constitutional right to procreation. As a result, defendants’ assertion of qualified immunity must fail at this stage in the litigation.” The judge wrote that because of this ruling, it was not necessary, at this stage of the proceedings, to determine whether M.C. had also stated a claim for violation of the rights of privacy and bodily integrity. He also found that M.C.’s procedural due process claim was plausible as pleaded in the Complaint, which asserts that the medical defendants chose “to perform the surgery and potential sterilization without requesting, initiating, or inquiring as to a pre-deprivation hearing,” and charges that the DSS officials “knowingly permitted and authorized the medically unnecessary sex reassignment surgery in violation of M.C.’s procedural due process rights.”
In addition to dismissing the qualified immunity motions by the defendants, Judge Norton granted an expedited discovery motion by M.C., aimed at determining the identity of several as-of-yet unidentified potential defendants who played a role in the medical procedures. The clock is ticking on serving them with complaints, and Judge Norton readily granted the motion.
This motion was an important preliminary hurdle, and the judge’s opinion makes clear that he believes significant constitutional rights are in play in this lawsuit. However, to prevail on the merits, M.C. will have to be able to prove by a preponderance of the evidence that performance of these procedures on him at 17 months was medically unnecessary, and so far no U.S. court has passed on this hotly-disputed question. Since plastic surgery became possible in the mid-20th century, many doctors have treated the birth of an infant with DSD as a medical emergency and urged parents to consent to surgical procedures which, in the case of children born with the capacity to develop male sexual function, almost invariably means making that impossible for them. In addition, as intersexuals have argued, the resulting scar tissue and loss of sensation from these procedures limits or prevents their ability to have a satisfactory sexual life whether as female or male, and they urge that the decision should be left to the individual when they come of age to be able to make it.
The court never mentions Lawrence v. Texas, the U.S. Supreme Court’s 2003 sodomy decision, in its ruling, probably because it focused solely on the procreation argument and never got to the liberty/autonomy argument, but surely it would be inconsistent with the Supreme Court’s reasoning in Lawrence to fail to accord substantial protection to an individual’s ability to make such a personal decision as this without interference by the state, and even to hold that a parent should not be able to consent to such procedures unilaterally without an appropriate hearing process when a child is too young to weigh in with his or her desires. The rapidly developing case law on the right of transgender prison inmates to receive appropriate medical treatment for their gender dysphoria under the 8th Amendment would also contribute to this argument about personal autonomy.