05/14/2013

Groundbreaking SPLC lawsuit accuses South Carolina, doctors and hospitals of unnecessary surgery on infant

When M.C. was born eight years ago, the newborn was not easily identifiable as a male or female.

Doctors determined the child had an intersex condition, which is a difference in reproductive or sexual anatomy that doesn’t fit the typical definition of male or female – a condition that years ago would have been called “hermaphroditism.”

When M.C. was just 16 months old and in the care of the South Carolina Department of Social Services, doctors and department officials decided the child should undergo sex assignment surgery to make M.C. a girl. There was no medical reason to perform this surgery, which robbed M.C. not only of his healthy genital tissue but also of the opportunity to decide what should happen to his own body.

Now 8 years old, M.C. identifies as a boy – wearing boy clothes and hairstyles – despite an irreversible surgery that has left him with female genitalia. He has announced to his school and his religious community that he has always been a boy.

The Southern Poverty Law Center filed a groundbreaking lawsuit today on behalf of M.C.’s adoptive parents, Mark and Pam Crawford. It charges that the state of South Carolina violated M.C.’s constitutional rights when doctors surgically removed his phallus while he was in foster care, potentially sterilizing him and greatly reducing, if not eliminating, his sexual function.

The lawsuit describes how the defendants violated M.C.’s substantive and procedural due process rights, outlined in the 14th Amendment, by subjecting M.C. to the unnecessary surgery “without notice or a hearing to determine whether the procedure was in M.C.’s best interest.”

It also charges that the doctors committed medical malpractice by failing to obtain adequate informed consent before proceeding. The defendants told M.C.’s guardians to allow the sex assignment surgery but did not provide information regarding the surgery’s catastrophic risks, including sterilization and greatly reduced or wholly eliminated sexual function. Most important, they did not tell them that the procedure was medically unnecessary.

Today’s lawsuit is the first of its kind to be filed in the United States.

“This case is about ensuring the safety of all children who do not have a voice,” said Alesdair H. Ittelson, SPLC staff attorney. “No one advocated for M.C.’s right to be free from unnecessary medical intervention at a time when the state was entrusted with his safety and well-being. It is high time all involved answer for the needless injury they inflicted on M.C.”

Surgery performed since 1950s

Since the 1950s, doctors have performed this type of sex assignment surgery on infants with intersex conditions even when the child’s ultimate gender remains unknown. In M.C.’s condition, there is no way to tell whether the child will ultimately identify as a boy or a girl. Instead, the doctors decided to assign M.C. female and change his body to fit their stereotype of how a girl should look. As is the case here, doctors often fail to provide full information about the procedure’s risks to the child’s parents or guardians.

Although long-term outcomes of today’s genital surgeries in children have not been well-studied, many doctors and advocates recommend that children with intersex conditions be assigned a gender at birth but postpone any unnecessary surgery until they are old enough to self-identify with a gender and make their own decisions about their bodies.

Risks of sex assignment surgery include the following:

  • The initial sex assignment may be at odds with the gender identity that develops.
  • Diminished sexual sensation
  • Sexual dysfunction
  • Chronic pain
  • Loss of potential fertility
  • Loss of the important health benefits of hormones

 

“By performing this needless surgery, the state and the doctors told M.C. that he was not acceptable or loveable the way he was born,” said Pam Crawford, M.C.’s adoptive mother. “They disfigured him because they could not accept him for who he was – not because he needed any surgery. M.C. is a charming, enchanting and resilient kid. We will not stop until we get justice for our son.”

The Crawfords hope to prevent other children with intersex condition from being forced to endure unwanted sex assignment surgery.

Sean Saifa Wall, an adult with an intersex condition, was raised as a female but now lives his life as a man.  He remembers the pressure doctors put on his mother to consent to vaginal construction surgery during puberty. After hearing the details of how invasive and barbaric the surgery appeared, Wall’s mother refused, sparing him from irreparable injury.

“Infants and children should be loved and accepted in the bodies they were born in,” Wall said. “I speak for the many who cannot speak, including those living with the shame, isolation and secrecy that surround people with intersex conditions. I say to them, you are not alone and it’s time for us to be proud of these bodies we inhabit.”

The lawsuit, filed in state and federal court, joins a long line of SPLC cases brought on behalf of those harmed by medical recklessness, including a 1973 case on behalf of young African-American women sterilized against their will.

The lawsuit, M.C. v. Medical University of South Carolina, was filed in County of Richland Court of Common Pleas. M.C. v. Aaronson was filed in the U.S. District Court for the District of South Carolina. Defendants include the South Carolina Department of Social Services, Greenville Hospital System, Medical University of South Carolina and individual employees.

 SPLC co-counsel include Advocates for Informed Choice and pro bono counsel for the private law firms of Janet, Jenner & Suggs and Steptoe & Johnson LLP.