This letter was sent from Cheryl Chase, Exec. Dir., Intersex Society of North America to a judge in Columbia, South America.

7 February 1998

Mr. Rodrigo Uprimny
Corte Constitucional
Calle 72 No 7-96
Bogotá
COLOMBIA SOUTH AMERICA

Dear Mr. Uprimny,

Thank you for providing the opportunity to comment on this case. As I understand the case, physicians have asked for the Court to either approve performing genital surgery on a six year old intersexed child, or to wait and allow the child to make any decisions about surgery herself, when she is old enough to evaluate risks and benefits. Apparently the surgery contemplated is clitoral reduction, vaginoplasty (to create or deepen a vagina), or both. In a previous case regarding an emasculated boy, the Court determined that all choices involving sexual identity must be made directly by the person, and not by the parents.

We argue, in keeping with the Court's previous determination, that only the child has the right to make decisions regarding her sexual identity and cosmetic genital surgery. To impose surgery on her would subject her to an unnecessary risk of irreversible harm and violate her human rights.

During the past several years, there has been an explosion of new scholarly work which considers medical management of intersex children, and the surrounding psychosocial issues. Based upon that work, a growing consensus of surgeons, psychologists, psychiatrists, and ethicists argue against early genital surgery on intersex children (Diamond 1996; Diamond and Sigmundson 1997b; Dreger 1997a; Dreger 1998 forthcoming-a; Drescher 1997; Kessler 1998 forthcoming; Schober 1998). It would be a pity for the Court to create a precedent insulating doctors from any liability for harm caused by performing non-consensual genital surgery on children precisely at the moment when scholarly opinion is changing. It would be even more ironic for the Court at this moment to reverse its previous opinion, and negate the right of a child to make for herself all decisions regarding her sexual identity.

Given the fact that genital surgery is not medically necessary, that it is irreversible and potentially harmful, that there is growing controversy among medical intersex specialists, and that the child can always choose surgery if she wishes when she is old enough to give informed consent, to impose surgery now would violate the first principle of medicine: "Primum, non nocerum" (First, do no harm).

Please refer also to enclosed Declarations from Cheryl Chase (Director of the Intersex Society), Justine Schober M.D. (pediatric urological surgeon), Alice Dreger Ph.D. (narrative ethicist), and Lisset Barcellos Cardenas (a Peruvian woman subjected to nonconsensual genital surgery at age 12). All of these argue that cosmetic genital surgery should never be performed without the express informed consent of the patient. Also enclosed is a letter in the original Spanish from Ms. Barcellos to her doctor in Lima, insisting that this practice is harmful, unethical, and must be stopped.

1. There is no medical reason to reduce the size of a large clitoris. Large clitorises do not cause illness or pain. The sole motivation for the surgery is the unproven belief that it may enhance psychological well-being. There is no medical reason to create or deepen a vagina in a pre-pubescent child. The sole motivation for such surgery is the unproven belief that it may ease parental discomfort now or that the decision would be traumatic for the patient to make later, so the surgery should be performed before she is able to participate in the decision.

2. The surgery is irreversible. Tissue removed from the clitoris can never be restored; scarring produced by surgery can never be undone. Setting potential and speculative "psychological" benefits aside, there no medical advantage or benefit to performing surgery now as opposed to later, when the child can make her own choice and when her gender identity is clearly established. "Surgery makes parents and doctors comfortable, but counseling makes people comfortable too, and it is not irreversible" (Schober 1998, p20).

There are, in fact, clear medical benefits to delaying the surgery. When she is grown, her genitals will be larger and thus easier for a surgeon to work on. One reason for poor surgical outcomes may be that scar tissue is negatively affected by the changes in size and shape that accompany normal growth and pubertal development; surgery performed after puberty would avoid that risk. It is likely that surgical techniques will have improved by the time she has grown; waiting will allow her to benefit from advances in technology.

There are many documented cases of people with her history who lived as adult women and were happy to keep their large clitoris intact, in some cases actually refusing surgery when it was offered (Fausto-Sterling 1993; Young 1937).

There is clear documentation that a significant fraction of children with her specific medical condition and history develop a male gender identity, and live as men during adulthood. If she lives as a man, she will be grateful that surgery was not performed without her consent.

Physicians in this case have asserted that the child can never live as a man, because her penis is never going to be sexually functional. But sexual function may mean different things to different people. The boy in the previous case, who was accidentally emasculated, chose to live as a man even though he had lost his penis. The men investigated in (Reilly and Woodhouse 1989) were able to have satisfying lives as men, with no impairment of sexual function, with small penises that would be judged "inadequate" according to the medical protocols used on intersex children. A small penis is capable of providing sexual arousal, genital pleasure, and orgasm. The video tape "I Am What I Feel To Be" (Fama Film A.G. 1997) presents interviews in Spanish with a number of people who were born as male pseudo hermaphrodites, raised female, and later changed to live as men. Both they and their partners describe their lives as sexually fulfilling, in spite of penises so small that they lived as girls until puberty (Fama Film A.G. 1997).