Advocates Challenge Intersex Exceptions in Trans Health Bans

Advocates are raising concerns over the inclusion of intersex exceptions in recent bans on gender-affirming health care for transgender minors across numerous U.S. states. A significant number of these states, between 2021 and 2024, have enacted laws prohibiting surgeries and hormonal treatments for transgender youth, yet many include explicit exceptions for medical procedures related to intersex individuals. This inconsistency has prompted calls for a reevaluation of how intersex traits are treated within the broader healthcare framework.

Emory Hufbauer, a 29-year-old advocate, shared their personal experience with early medical interventions aimed at aligning their body with societal gender norms. As a baby, Hufbauer underwent surgery that they describe as intersex genital mutilation, which resulted in the loss of fertility and natural hormone production. “I was just focused on survival, self-protection,” they said, reflecting on their journey towards self-advocacy, which began in earnest only after reaching adulthood.

According to estimates, approximately 1.7% of the global population possesses intersex traits, encompassing a range of variations in sex characteristics. Despite this prevalence, there is limited research on the experiences of those with intersex traits, and advocacy groups have highlighted the commonality of non-consensual medical interventions performed on intersex infants. Some medical experts argue that there are rare instances where intervention is warranted, particularly when a specific intersex variation carries a high risk of cancer.

Hannah Wenger, a physician and associate professor at Penn State University College of Medicine, noted the potential ramifications of the legislative landscape. “These exceptions can set a precedent for other jurisdictions,” Wenger stated, emphasizing the importance of recognizing the inconsistencies in standards of care that govern intersex and transgender health.

In many cases, the procedures performed on intersex infants—such as vaginoplasty and phalloplasty—are similar to those banned for transgender youth. This raises ethical questions about the criteria used to justify medical interventions. Carolyn Baker Ringel, a bioethicist at Harvard Medical School, pointed out the troubling inconsistency: “It really defies normal pediatric practice that we are banning that intervention.”

The irony is stark for advocates, who argue that states allow medical procedures for intersex infants who cannot consent while simultaneously banning them for adolescents who wish to pursue such treatments with parental approval. Hufbauer noted the long-term health challenges linked to early intersex interventions, including chronic pain and loss of sexual function. “This isn’t in any way just incidental harm, this is systematic harm and erasure,” they remarked, highlighting the urgent need for reform.

Several advocacy organizations, supported by entities such as the United Nations and Human Rights Watch, have long called for the cessation of unnecessary medical interventions on intersex minors prior to their ability to consent. In a notable development, both Boston Children’s Hospital and Lurie Children’s Hospital announced in 2020 that they would cease certain procedures deemed non-essential.

The Biden administration’s Department of Health and Human Services released a report in late 2020 addressing intersex health equity, advocating for a re-evaluation of medical practices that may cause long-term harm. Yet, the full extent of non-consensual procedures remains unclear, as data on the subject is scarce.

Despite the challenges posed by current legislation, advocates like Erika Lorshbough, the executive director of the advocacy group interACT, express cautious optimism that clinicians are moving towards eliminating non-consensual procedures. “The groundswell has continued to build, but it’s underground,” Lorshbough stated, underscoring their focus on medical advocacy over legislative battles.

While some states have adopted broad exceptions for “medically necessary reasons,” the rationale behind these carve-outs is often questioned. A recent analysis highlighted that these provisions may reflect societal norms about bodily appearance rather than genuine health needs.

As discussions around gender and intersex health continue to evolve, the implications of current laws extend beyond individual cases. “Any single policy that is aimed at narrowing our norms around sex and gender is going to impact some intersex people,” Lorshbough warned, indicating the need for inclusive and equitable health care practices.

The ongoing dialogue surrounding intersex exceptions in health care raises significant ethical and medical questions, calling for a deeper understanding and more comprehensive policies that respect the rights and autonomy of all individuals, regardless of their gender identity or intersex traits.