This Article is composed of four Parts. The first Part explores two legal struggles for intersex and transsex goals. The main litigation propositions and structures of the two movements are contrasted, especially the meanings that the two movements offer for the terms “medical necessity,” “cosmetic surgery,” and “medical experimentation.” While Part I takes a critical approach to some of the strategies discussed, the main purpose is to describe the mirroring aspects of the two advocacy movements. The second Part locates these contemporary legal narratives regarding sex change in the broader history of sex change in the twentieth-century United States, emphasizing how these two medicalized identities emerged from increasing medical control of sex, gender, and sexuality. The historical account outlined in Part II illuminates the argument to follow in Part III: current legal struggles of the two movements are supported by data and experts from two sides of historical and ongoing medical-scientific debates regarding the origins of “gender identity,” often referred to as the nature/nurture debates or biological/psychological debates. In short, transsex advocacy for Medicaid coverage of sex reassignment surgeries for lower-income Americans (and support of transsex sex change surgeries in general) historically has been supported by experts like John Money and Richard Green who consider gender a social imprinting of behavioral patterns through the socialization process of the child. he fourth and final Part is a call to de-emphasize the reliance on much-contested medical theories about gender and sex and to concentrate on framing sex-change advocacy in terms of positive and negative liberties. This Article suggests that the legal claim against early intersex surgery can be presented in terms of “negative liberty,” while the legal claim for transsex surgery, based on the Medicaid statute, can be presented as a form of “positive liberty.” In the case of intersex negative liberty, the bodies of intersex infants can be protected from intrusive medical procedures under the theory that state and/or federal law must actively protect the “negative liberty” of the intersex subject from unwanted medical intervention. In the case of transsex positive liberty, the bodies of transsex adults can be transformed by surgery under the theory that state and/or federal law should actively support the “positive liberty” of lower-income transsex subjects to self-determination, which can include the transformation of the body. The Article concludes by suggesting that the civil liberties of socially marginalized intersex and transsex subjects may be enhanced by a reliance on positive and negative liberties, which are less dependent on the scientific debates about gender and which consequently do not locate the two identity groups in a state of unnecessary conflict.
Noa Ben-Asher, The Necessity of Sex Change: A Struggle for Intersex and Transsex Liberties, 29 Harv. J.L. & Gender 51 (2006), http://digitalcommons.pace.edu/lawfaculty/591/.