For decades, California has led the United States in legislation designed to protect LGBTQ+ people. But if a recently-introduced bill makes its way safely to Governor Gavin Newsome's desk, the state won't just be making American history — it would be poised to set an example for the entire world.
Senate Bill 201 seeks to safeguard the bodily autonomy of intersex people by setting new standards and restrictions for surgical interventions, which are frequently performed on intersex children who are below the age of consent. Introduced late last month by State Senator Scott Wiener, and coauthored with State Senator Jim Beall and five Democratic members of the State Assembly, SB 201 comes on the heels of a nonbinding resolution last August that affirmed the California legislature's position “that intersex children should be free to choose whether to undergo life-altering surgeries” like clitoral reductions, gonadectomies, and other reconstructive procedures. Should it pass into law, California would become the first state in the U.S. to explicitly protect the bodily autonomy of intersex minors.
For Hans Lindahl, communications director for the intersex advocacy nonprofit interACT, which helped develop the bill in partnership with the LGBTQ+ civil rights organization Equality California, the legislation is deeply personal. “There are so many different intersex narratives, and I have the benefit of being someone who, at least, was not subjected to nonconsensual surgery,” they say, speaking to them. by phone. “It does feel like a lot of personal investment...you want this, you know? Your community needs this.”
While nonbinding resolutions are often overlooked for their lack of concrete legal impact, Lindahl says that last year's advocacy was a crucial first step in rallying support for intersex rights. “A lot of the commentary we were getting in Sacramento was that people don't know anything about this,” they explain. Other bills like SB201 have withered on the vine, like Nevada's SB 408, which would have required a minor or guardian's informed consent for “the performance of any surgical procedure to assign anatomical sex” but died in committee in 2017. As a result of last year’s resolution, Lindahl says, “a lot of senators will be familiar with the issue, and we'll have those connections and conversations. It'll be a stepping stone for sure.” After laboring for months over the bill's language (in part to ensure it could coexist with current protections for transgender youth), interACT and its political allies are taking the next step to enshrine protections for intersex children in law.
If passed, SB 201 would expand the legal definition of “unprofessional conduct” on the part of doctors — violations of which can lead to disciplinary measures and fines from the Medical Board of California — to include performing any surgery or other intervention on an intersex minor that is not medically necessary and cannot be deferred. In cases where such treatment is necessary (as in the case of a nonfunctional urethra), the bill would also put into place a specific procedure for obtaining informed consent from the child or their legal guardian(s). And though specific consequences for such unprofessional conduct would be left to the Board's discretion, SB 201 aggressively expands that definition even further: doctors would no longer be allowed to opine on intersex minors' “psychosocial development” — that is, their ability to function and be accepted in society — as a relevant factor in recommending surgeries.
Psychosocial theories of development have motivated intersex medical interventions for decades, influenced particularly by American psychologist John Money, whose infamous “John/Joan” case study provided clinical backing for infant sex reassignment and other “normalizing” surgeries. Although sex reassignment in infancy is no longer a common practice, doctors frequently invoke “normal” social development and acceptance in setting treatment plans for intersex children. These standards of normalcy, as one may suspect, tend towards the cis- and heteronormative. Speaking to The Daily Beast earlier this month, Amanda Saenz, a nonbinary intersex person who is also involved with interACT's youth program, described conversations with doctors who assured them that surgery would make them “a normal girl so that I can have happy sex with my husband.” Saenz also alleged that doctors discouraged them from telling friends about their surgery to avoid being ostracized and “inflated” the risk of cancer posed by their intersex traits. Another intersex advocate, Pigeon Pagonis, told Rewire News last year about their childhood clitoral reduction, an unnecessary surgery which left Pagonis with no external clitoris. Others who have been subjected to similar procedures later reported followup exams that veered frighteningly close to molestation.
International human rights organizations have spoken in favor of intersex bodily autonomy for years, highlighting the lack of clinical consensus for such procedures and prevalence of long-lasting trauma. Yet legal action in this arena is still incredibly rare around the world. Less than five countries have passed laws prohibiting unnecessary interventions on intersex minors, including Malta and Uruguay; two laws in Portugal and Chile were passed but later vetoed or invalidated, and protections in Austria and Colombia have been instated through the courts rather than legislation. And even the laws that do exist have flaws: Uruguay's is barely one sentence long, while some intersex activists have highlighted frequent referrals by Maltese doctors to London’s Great Ormond Street Hospital (a controversial epicenter for intersex surgeries) as evidence of a loophole through which they can send children to the U.K. for surgeries that are no longer permitted domestically. (Great Ormond Street has previously denied any wrongdoing or negligence with regards to intersex care.)
The potential for doctors to look for a similar loophole in SB 201's “medical necessity” exception is one which Lindahl and their colleagues at interACT are keenly aware. “A lot of doctors truly believe in their hearts that the assumed issues of growing up with different genitalia mean 'medical necessity,'” Lindahl says. That’s one of the primary reasons interACT pushed for such explicit prohibitions on psychosocial theorizing. And those doctors are already mobilized in opposition to the bill. Dr. Peter Bretan, president-elect of the California Medical Association, claimed in a recent radio appearance that “[t]here is far more psychological impairment if you don't let genetic females be raised to their fullest potential,” i.e. as “normal” cisgender girls.
Despite possible pitfalls and well-heeled opponents, Lindahl says interACT is ready to dig in for the fight to come, with hope that intersex allies will get involved and ensure this historic bill is entered into law. The stakes are inarguably high: failure would be a bitter setback for intersex people's rights. But a victory would mean far more than just one state's medical reform; it could herald a cultural shift in how we relate to sex, gender, and the infinite diversity of the human form. By taking this bold step, interACT might end up creating a cultural context in which conformity to a constructed sex binary becomes irrelevant. And that's beautiful — just like intersex bodies themselves.
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