By Emily Largent
In 2013, M.C. (a minor child), by and through his adoptive parents, filed a complaint in federal district court against the physicians who recommended and performed M.C.’s sex assignment surgery and the South Carolina Department of Social Services (SCDSS) officials who authorized it. This was the first lawsuit of its kind filed on behalf an intersex child who was given sex assignment surgery while too young to give informed consent.
By way of background, M.C. was born with ovotesticular difference/disorder of sexual development (DSD). Ovotesticular DSD is a condition in which an infant is born with the internal reproductive organs of both sexes; the external genitalia are usually ambiguous but can range from normal female to normal male. Shortly after birth, M.C.’s biological parents expressed their desire to relinquish their parental rights, and M.C. was placed in the custody of SCDSS. A team of physicians subsequently evaluated M.C’s condition and recommended to SCDSS officials that M.C. undergo sex assignment surgery in order to make his body appear female. SCDSS consented to the surgery, which was performed in April 2006.
M.C. was adopted in December 2006. Initially, his adoptive parents raised M.C. as a female in accordance with his assigned gender. M.C., however, refused to be identified as a girl. His adoptive mother has described being “really sad that that decision [regarding surgery] had been made for him. . . . And it’s becoming more and more difficult just as his identity has become more clearly male.” M.C. is now living as a boy with the support of his family, friends, school, and others.
Doctors have performed this kind of surgery on children with intersex conditions since the 1950s. Now, many doctors and intersex advocates recommend avoidance of unnecessary genital surgery on infants and children. They argue that surgery that isn’t “absolutely necessary for the physical health and comfort of the intersexual child . . . should be deferred until the intersexual child is able to understand the risks and benefits of the proposed surgery and is able to provide appropriately informed consent.”
M.C.’s lawsuit–supported by the Southern Poverty Law Center, among others–brought § 1983 claims against all defendants, alleging that they violated substantive and procedural due process rights guaranteed to M.C. by the 14th Amendment. It also charged that that the doctors committed medical malpractice by failing to obtain adequate informed consent before proceeding. The District Court for the District of South Carolina denied the defendants’ motions to dismiss and rejected their defense of qualified immunity.
Then, on January 26, 2015, the Court of Appeals for the Fourth Circuit reversed and remanded with instructions to dismiss the complaint. The Fourth Circuit stated that it did not “mean to diminish the severe harm that M.C. claims to have suffered” but that a reasonable official in 2006 did not have fair warning from then-existing precedent that performing sex assignment surgery on sixteen-month-old M.C. violated a clearly established constitutional right.
M.C. filed separate suits in state court asserting state law claims against the defendants. I will be watching with interest to see how those are resolved.