M.C. was born with an intersex condition—a difference in reproductive or sexual anatomy that does not fit the typical definition of male or female. 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. of the opportunity to decide what should happen to his 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 even announced to his school and his religious community that he has always been a boy.
The Southern Poverty Law Center filed a lawsuit in state and federal court on behalf of M.C.’s adoptive parents. The first of its kind to be filed in the United States, 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 this 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 its 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.
Since the 1950s, doctors have performed this type of sex assignment surgery on infants with intersex conditions. They often fail to provide full information about the procedure’s risks to the child’s parents or guardians even when the child’s ultimate gender remains unknown.
(Southern Poverty Law Center, 2013, paras. 1–5).