Simply, starkly, the law mandates an answer--every child must be male, or female. The need to meet this requirement marks the point at which the “perfect” and “healthy” child the parents see becomes the medical anomaly the physicians see as a problem in need of “correction” before the birth can be registered appropriately. With that forced assignment, law tags each of us with a sexual identity and renders the intersexed invisible. In the process, the law removes its own power to serve as a source of solution to injustices it can neither recognize nor remedy.
Law assumes that sex is a bipolar, universal, and unchanging characteristic. It operates as an obstacle to change through nearly invisible mechanisms, such as the use of sex identification on birth certificates and drivers' licenses, for which there is no flexibility in the categories male or female, and limited-to-no ability to define one's own sexual identity in conformity with its actual nature. Everyone is legally subject to a sexual identity assigned by someone else's best guess within a few moments or days of birth. The fact that in the vast majority of cases the guess is close enough to the mark to work for an individual should not obscure the truths that (1) it is only an educated guess, and (2) it is sometimes drastically wrong. Conservative estimates place the frequency of intersex births at 1.7% of live births.
It is time to alter the role of the law in its treatment of intersexuals. Currently, the legal response to intersexuality is bound by wholesale acceptance of the deeply rooted assumption that sex identity is simple and binary--male or female. This acceptance, unquestioned and virtually invisible, has made the legal system an active enforcer of differentiation that operates inexorably to exclude intersexuals from basic protections of the law. For instance, intersexual children are denied protections of autonomy and bodily integrity; children and adults are denied recognition as inhabiting a sex that would protect them from sex discrimination, or permit them to marry a non-same-sex partner. It is problematic enough when the law fails to recognize a pattern of exclusionary behavior as deserving of legal remedy. It is much worse for the law to be the very mechanism that requires and enforces exclusionary behavior. The difference is between failing to remedy exclusion from certain social benefits (e.g., discrimination in schooling, hiring, accommodations) and affirmatively demanding such behavior (e.g., fugitive slave laws).
One hopes that lack of awareness of this role explains its persistence. Perhaps many legal institutions and those practicing within them are unaware of the compelling biological and medical evidence that the binary is not a true representation of the actual variation in human sexuality, even as a purely biological matter. Perhaps the law and its practitioners are unaware that the rough truths and usefulness of this binary system of thought wreaks actual harm. Because law uses binarism as a method of analysis, it may confound an analytical method with factual accuracy. Perhaps a paucity of imagination has led legal practice to be unaware that the benefits of binary rough truth can be achieved without universal enforcement of its categories on the bodies and souls of those who fail to conform to them.
This article proposes to cure that lack of imagination by suggesting a small, but sensible, change in our legal record-keeping for collecting data on sex. The new method incorporates biological reality as well as shared and deeply-held assumptions about sex identity. The change will also bring visibility to the realities of the intersexual experience. That change can provide a foundation for other legal changes that recognize, protect, and facilitate inclusiveness for intersexuals. The simple change this article recommends is thus not only easily accomplished, but one that a legitimate and moral system should move to implement immediately.