SOUTH CAROLINA: Surgery on intersexed child could be unconstitutional

Southern Poverty Law Center
August 23, 2013

Federal court says sex-assignment surgery on child could violate U.S. Constitution, refuses to dismiss case

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For the first time, a federal court has concluded that a medically unnecessary sex-assignment surgery on a child with an intersex condition could be a violation of the Constitution. This marks an important step forward in seeking justice for “M.C.,” a young man who was needlessly subjected to the procedure as an infant in the care of the South Carolina Department of Social Services.

U.S. District Judge David C. Norton of the South Carolina Charleston Division denied a motion by the defendants to dismiss the case, ruling from the bench following oral arguments late yesterday.

"We applaud the court's decision and we are pleased that the court will have the opportunity to consider the deeply important constitutional issues at stake,” said Alesdair Ittelson, staff attorney for the SPLC. “By removing M.C.'s healthy body parts and trying to make him a girl absent any pressing reason, defendants violated M.C.'s constitutional rights. We look forward to the chance to make our case at trial and bring justice to M.C. and children like him."

M.C. was born with an intersex condition – a difference in reproductive or sexual anatomy that doesn’t fit the typical definition of male or female. When he 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.

The defendants made this decision even though there was no way of knowing, at such an early age, whether M.C. would grow up to be a male or female. Defendants did not even provide a hearing to determine whether the procedure was in M.C.'s best interests. M.C. has since grown into a healthy 8-year-old boy, although he will never get back the phallus and testicle that were removed.

The SPLC and co-counsel, Advocates for Informed Choice and the private firms Janet, Jenner & Suggs LLC and Steptoe & Johnson LLP, filed lawsuits in both state and federal courts in May.

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