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CA would ban infant intersex surgeries under Senator Wiener's bill

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State Senator Scott Wiener. Photo: Courtesy Senator Wiener's office
State Senator Scott Wiener. Photo: Courtesy Senator Wiener's office  

California would become the first state in the nation to ban surgeries performed on intersex infants if state lawmakers approve a bill authored by gay state Senator Scott Wiener (D-San Francisco).

At a news conference in San Francisco Monday morning, Wiener is scheduled to announce his legislation. It has yet to be assigned a number but is being referred to as the Intersex Bodily Autonomy bill.

Intersex people, who account for 1 to 2 percent of the population, are defined as those born with any variation of reproductive or sexual anatomy characteristics including genitals, chromosome patterns, and sex hormones. While some intersex people also identify as transgender or nonbinary and members of the LGBT community, not all do.

According to a summary of the bill, which Wiener's office shared with the Bay Area Reporter, it would ensure that intersex minors are able to give informed consent before any medical treatments or interventions are performed on their sex characteristics, excluding cases of medical necessity.

"This important measure will ensure that intersex individuals will not have important choices about sex and gender identity made for them in infancy by parents and doctors, but will rather be able to make those important and life-altering decisions themselves," states the draft version of the bill.

As the B.A.R. first reported in early January, Wiener had been in talks for months with advocates within both the LGBT and intersex communities about authoring a bill that would outright ban the procedures. Surgeries that decide the infant's sex at birth are still being performed in California and around the country, despite medical evidence of physical and psychological harm.

Last year, Wiener was successful at having his legislative colleagues adopt a resolution calling on medical professionals to discontinue the use of sex assignment and normalizing surgery performed on intersex infants. Equality California, the statewide LGBT advocacy organization, co-sponsored the resolution last year and is partnering with Wiener and several other advocacy groups on this year's legislation.

In an interview last month EQCA Executive Director Rick Zbur told the B.A.R. that, of all the LGBT-focused bills it is sponsoring this year, "probably one of the most unique and cutting edge is focused on intersex surgeries."

He added that it is "groundbreaking" legislation.

"Basically, it will protect the intersex community by targeting and banning unnecessary surgeries for intersex infants," said Zbur.

Because such a bill is expected to face fierce resistance from medical professionals and conservative groups, lesbian Senate President Pro Tem Toni Atkins (D-San Diego) had advised Wiener last year to take a go-it-slow approach to the issue. As he recounted to the B.A.R., Atkins suggested he first introduce the nonbinding resolution as a way to educate lawmakers and the public about the topic.

Wiener's office did just that by holding an informational hearing last March where intersex people and medical professionals discussed the issue. The resolution was also widely covered in the press, though the coverage often inaccurately reported that it would have more legal weight than it does.

"She was 100 percent right," Wiener said of Atkins.

Since the mid-20th century, American physicians have performed sex assignment and genital modification surgeries on intersex infants in order that they can be classified as either male or female. The procedures can entail infant vaginoplasties, clitoral reductions, or the removal of gonadal tissues.

Those opposed to the practices point out that the medical intervention can result in extreme scarring, chronic pain, incontinence, loss of sexual sensation, post-traumatic stress disorder, and incorrect gender assignment. At last year's hearing Anne Tamar-Mattis, founder of InterACT Advocates for Intersex Youth and an adjunct professor at UC Berkeley School of Law, noted that the San Francisco Human Rights Commission over a decade ago had published a report that called for an end to normalizing surgeries.

Today, the medical community's consensus is that the vast majority of intersex cases do not require surgery, argued Tamar-Mattis, whose organization is one of the co-sponsors of Wiener's bill.

Yet she pointed out that UCSF's website still claims that normalizing surgeries are "OK" regardless of knowing the infant's eventual gender identity or without knowing the possible consequences for that particular infant.

As the B.A.R. noted at the time, she was referring to the "treatment" tab on UCSF Benioff Children's Hospital's "Disorders of Sex Development" webpage that had read, "Treatment varies depending on your child's diagnosis. Some children need surgery while others do not. Surgery may include reconstruction of the external genitalia or removal of abnormal sex organs or sex organs that do not match the sex of rearing. Some children require life-long hormone or electrolyte supplements."

Dr. Laurence Baskin, a urology professor and chief of pediatric urology at UCSF, had told the B.A.R. that such surgeries can be performed "when medically indicated" but didn't elaborate further in his emailed reply to a request for comment.

The hospital has since updated the message under the "treatment" tab to read, "Treatment varies depending on your child's diagnosis. Some children need surgery to prevent medical problems while others do not. Some children require lifelong hormone or electrolyte supplements. Gender is not assigned by the medical team but by the individual. The team's role is to support the child and family."

Both Human Rights Watch and the World Health Organization have condemned performing surgeries on intersex infants, while the United Nations deems doing so akin to torture.

As Wiener's bill states, "Not unlike the victims of LGBT conversion therapy, intersex individuals living with the results of nonconsensual genital interventions often deal with the harmful emotional and physical consequences of medically unnecessary attempts at 'treatment' for the rest of their lives."

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