CR3028 Final Essay

CR3028: Gender, Sexuality & Crime
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Surgical intervention to correct gender abnormalities: a crime or a cure?
How intersex surgery is supported, as well as refuted by contemporary society.
Queer theory rejects the ingrained and constructed societal norms that
surround sex, gender and sexuality. Queer theory attempts to question, disassemble
and challenge these norms that appear to govern predominant and oppressive views in
contemporary society. This theory is particularly important as it sheds light on the
individuals who are essentially the outliers of society, and so their perspectives,
attitudes and requirements are at the centre of queer theory. This theory aims to re-
establish the terms of these confining models, so that they acknowledge, as well as
include the diverse array of possibilities when it comes to sex, gender and sexuality.
This theory advocates the exploration of all that exists between these restrictive
binaries, such as intersex individuals.
Intersex is a broad term used to encompass the variety of conditions where an
individual is born with characteristics that are unfitting of the typical definitions of
what constitutes male and female. As it stands, in majority of contemporary society,
when an intersex child is born there is an underlying emergency response to complete
surgical interventions to ensure the child fits one of the relative genders, not both.
Arguably, this emergency response is driven more so by social factors as opposed to
medical. Evidently, this is quite a controversial topic, as this method constitutes an
assignment of gender without the consent of the individual. This not only brings up
ethical considerations, but several questions that will be addressed throughout the
essay, some of which include: should it be illegal to surgically intervene intersex
infants? What are the legal ramifications of gender assignment? What are the general
attitudes toward intersex in contemporary society?
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Queer theory is chiefly derived from post-structuralist theory, which too
focuses primarily on the examination and moreover, the rejection of societies
normative categorization, heteronormative discourse, as well as the notion of binary
oppositions, which is seen time and time again throughout queer theory (Turner,
2000). The term “Queer Theory” was introduced in the 1990s, coined by Teresa de
Lauretis in her essay Queer Theory: Lesbian and Gay Sexualities. De Lauretis
strongly felt that under queer theory, one is granted the possibility of redefining and

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reforming the systems of gender, sex and sexuality according to ones own terms and
conditions (Teresa, 1991: 4). It is interesting that the word queer has been chosen to
brand this theory, a derogative term previously used as a form of homophobic abuse.
Queer theory reclaims and rebrands the word, using it as a source of power, pride and
identity. Furthermore the word queer no longer just makes references to gays and
lesbians, but rather the vast array of possibilities that contest normative
categorization. What is unique about the word is that “queer has yet to solidify and
take on a more consistent profile, but rather that its definitional indeterminacy, its
elasticity, is one of its constituent characteristics” (Jagose, 1996: 1).
However although there are clear indications of why queer theory is
beneficial, as well as necessary in contemporary society, there have been critiques of
this particular theory. It can be said that sexual identities and all the complications
that follow, are primarily linked to Western wealth and privilege, and this is
something that queer theory have failed to make note of (Morland, 2007). Queer
theory is supposedly opposed to all forms of normative and binaristic thought,
however intersexuality and transexuality highlight that when an individual chooses to
be a gender, they are buying into and supporting the binaristic thinking that oppresses
them to begin with. It is a vicious cycle, without a simple solution, but this means of
conforming is noticeable in certain cases within queer theory (Butler, 2004). Another
critique is that queer theory is incredibly unconventional in that it has little
foundational logic, nor systematic ideologies, not even an evident standpoint; the only
consistency in the theory is the opposition to the normative. Paradoxically it can be
said queer theory cannot even be defined as a theory at all. This has been critiqued,
however, the flexibility and refusal to adhere to standard theoretic rules are one of
queer theory’s predominant tactical strengths (Science.jrank.org, 2015).
Annamarie Jagose in her book Queer Theory: An Introduction makes an
important note that "queer focuses on mismatches between sex, gender and desire. For
most, queer has prominently been associated with simply those who identify as
lesbian and gay. Unknown to many, queer is in association with more than just gay
and lesbian, but also cross-dressing, hermaphroditism, gender ambiguity and gender-
corrective surgery" (Jagose, 1996: 3). This is a crucial definition to bear in mind when
exploring queer theory and all the relevant counterparts, such as the notion of
intersex. Queer theory is particularly important when considering intersex, as intersex

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individuals -pre as well as post surgery- fall into the category of ‘queer’, in that they
fail to fit into the socially acceptable gender/sex binary. It can be seen that there is no
fixed medical explanation for how intersex occurs, as well as that, there is no formal
definition of what intersex actually constitutes and no formal recordings of those who
are born with these conditions (Davis, 2015). This fluidity and lack of concreteness is
a sound parallel that can be drawn between the theoretics of queer theory and intersex,
both in ways, refuse to commit to classification. A focal point of queer theory is the
emphasis of the importance and invaluableness of pleasure, and so this can aid in
determining why the loss of tactility, and in turn pleasure, makes genital
desensitization wrong. However, there are several ways in which queer theory cannot
account for intersex. A lot of queer discourse centers around pleasure, however this
cannot necessarily be applied to intersex, because in most cases, the postsurgical body
is desensitized. According to Morland, an intersex individual post-surgery cannot be
included in a queer discourse; this is because sexual pleasure is a way of advocating
‘hedonistic activism’. Queer theory also cannot aim to solve the problems of intersex
with advocacy of more and better sex, as this does not necessarily apply to a
desensitized individual (Morland, 2009).
Judith Butler poses a challenge to the common assumptions made between sex and
gender: in that sex is biological and gender is a constructed cultural product. Butler
argues rather, that both sex and gender are socio-political constructions of society and
because they are both products, they can be challenged. Butler does not deny that
there are evident biological differences, but rather she questions what sex (the body)
actually stands for, and what happens when it encounters society where regulatory
norms are continually applied and reinforced throughout a lifetime. Butler takes the
standpoint that sex “is an ideal construct which is forcibly materialized through time.
It is not a simple fact or static condition of a body, but a process whereby regulatory
norms materialize 'sex' and achieve this materialization through a forcible reiteration
of those norms” (Butler, 1993: 12). And so, if the notion of sex can be challenged and
broken down, it looses it’s meaning and thus it’s power to confine. The breakdown of
these taxonomies allows us to find a cultural root of construction, and we see a
possibility for gender, sex and sexuality to be free from confides (Butler, 1999). The
evidence of ‘sex’ being a cultural construction is highlighted not only in the attitudes,
but also medical management of intersexuality, this will be addressed in the latter part
of the essay (Carroll, 2012).

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As it has been stated before, a person who is intersex has been born different
from the normative classifications of sex. This can occur in many different ways, as
there are many variations of intersex: for example an individual could have an
incongruity phenotypically, genetically, hormonally, or even a combination of the
latter. Each case of intersex is different from person to person (Isna.org, 2015). It is
important that it is made clear that intersex is not the same as a hermaphrodite,
intersex individuals refute this term, as it is out-dated, invites stigmatization and
overall does not encompass the array of intersex possibilities.
In The Middle Ages, ‘hermaphrodites’ were known to society to be people
who possessed both masculine and feminine traits, however once these individuals
reached adulthood they were granted the right to choose the gender they felt they
belonged to. However, this approach was later abandoned (Meese & Parker, 1989). It
has been seen that when mothers are informed that their infant is intersex, feelings of
shame, guilt and secrecy arise, and this can provide an explanation for why surgical
alteration was established in the first place (Thyen et al., 2005). Surgical alteration of
intersex individual’s genitalia began around the middle of the 20th century and it soon
became the standard means of treating intersexuality. However, in the 1990s -in
parallel with the beginnings of queer theory- intersex activist groups began to
question the procedures that were undertaken with intersexuality, particularly because
of the damage sustained through the surgical interventions. Such damage includes “a
loss of reproductive capacity, a loss of erotic response, genital pain or discomfort,
infections, scarring, urinary incontinence, and genitalia that are not cosmetically
acceptable” (Greenberg, 2003: 278).
Surgical interventions are completed on intersex genitalia in attempt to adhere to
‘normal’ standards; however there can be many implications, both psychological as
well as physical. Typically, if the penis does not adhere to sufficient standards, the
child is assigned to the female sex, without the consideration of the child growing up
infertile. On the other hand, if a clitoris does not meet sufficient aesthetic standards,
the clitoris is surgically manufactured to appear more like a normal clitoris; again this
operation is completed without the consideration of how this will affect the tactility of
the genitals (Greenberg, 2003). Moreover, if an intersex infant has a fully functional
reproductive system, it is a priority to preserve this, so the child is automatically
assigned to be a female. It has been summarised that in intersex surgery “males have

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been defined by their ability to penetrate and females have been defined by their
ability to procreate” (Sytsma, 2006: 97).
In Iain Morland’s essay The Injured World, Morland, who was born intersex,
addresses the physical as well as psychological implications of intersex surgery.
Morland makes a radical analogy to attempt to explain the nonsensical surgery: it is
arguable that a child growing up black will face many adversities, yet it is not a
reason for parents to bleach their baby so that it is white. What is important about this
analogy is that it shows that altering an infant is unethical, but also the bleaching
would not stop the infant from being black, and at the same time, not make one white.
It is the same with intersex surgery, in that “the lived experience…is that one’s sexual
anatomy seems both glaringly unusual and yet brutally normalized” (Morland, 2012:
300).
Morland highlights how intersex surgery is dehumanizing and objectifying, and how
one’s authenticity is impaired in the process; this all in turn increases the probability
of future psychological concerns. When genitals are operated on, the area often
becomes permanently desensitized and this according to Morland can pose many
perplexing issues to the individual. Morland refers to the desensitized area as “an
injury of differentiation” (Morland, 2012: 32) as only a localized area of the body is
insensitive. And so this poses a moral conundrum, in that if one cannot feel from a
part of themselves, do they even exist in that part of the body? Moreover, can they
claim that part as their own, especially if it has been medically mediated first? Clearly
it is evident that “functional damage can give rise to feelings of loss of body
ownership” (Cull, 2005: 341).
Morland goes on to argue that the process of surgery in itself creates and reinforces
stigmatization. This is reverberated by the Intersex Society of North America in that
“current treatment protocol exacerbates an intersexual’s sense of shame by
reinforcing cultural norms of sexual abnormality” (Isna.org, 2015). Not only is the
ability to feel pleasure taken away from the individual in attempt to fit the aesthetics
of society, there is an estrangement from ‘normal’ people, as desensitization in
intersex individuals leaves them unable to feel what ‘normal’ people feel, but also
unable to relate to others in several fundamental human ways, this in turn this creates
a divide (Montagu, 1971). Intersex individuals are essentially manufactured through
societal intervention, and in that process they loose a part of themselves (Morland,

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2012). This is echoed in Judith Butler’s book Undoing Gender, where she notes that
“certain lives are not considered lives at all, they cannot be humanized; they fit no
dominant frame for the human, and their dehumanization occurs first, at this level”
(Butler, 2004: 25)
There are several other implications to intersex surgery aside from the
aforementioned, the main being the legal ramifications to the intersex person later in
their life. Such legal concerns the intersex individual may include: marriage in a
particular gender role, sex designation on official documents, pension and insurance
payments, the ability to state a cause of action for violation of employment
discrimination laws and for a constitutional equal protection violation, accountability
for sex-based crimes and the right to be housed with male or female prisoners
(Greenberg, 2006). It should be absolutely essential that the parents as well as
physicians who are administering the intersex treatment consider the legal
complications that may likely occur in the intersex person’s life. Another
controversial issue is that of sex discrimination surrounding the whole process of
intersex surgery. As stated before, intersex individuals who are assigned to be males
have been decided by their ability to penetrate (size of phallus) and intersex
individuals assigned to be female have been done so by their ability to procreate (the
preservation of reproductive capacity). So we can see that female and male intersex
infants are not treated equally. According to the law there is no obligation for the
sexes to be treated identically, however, any differential treatment between the sexes
must have to be legitimated by sex differences and not because of sex-role stereotypes
(Greenberg, 2003). However it can be argued that there is an imminent gendered
aspect to intersex surgery; this is yet to be justified by biological differences between
sexes.
Intersex activists have often drawn parallels between female genital mutilation (FGM)
and infant intersex surgery. It has been noted that both include unnecessary genital
cuttings that often result in pain, potential infection, sexual/physical dysfunction, and
permanent disfiguration (Ehrenreich & Barr, 2005: 74). Western societies have a very
clear stance on female genital mutilation, so how come FGM is shunned and
somehow intersex infant surgery is permissible? Egrenreich and Barr investigated
how this is so. One of the prominent aspects noted was that anti-FGM activists have

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an ingrained ‘colonialist’ view over the matter, in that when intersex surgery is
completed in the West has scientific backing and rational, but when FGM is
completed in Africa, it is looked down on and seen as barbaric and illogical. This is
supported through discourse that construct Western understanding and practices as
““scientiac” (i.e., rational, civilized, and based on universally acknowledged
expertise), while African understandings are “cultural” (i.e., superstitious, un-
civilized, and based on false, socially constructed beliefs)” (Ehrenreich & Barr, 2005:
76). The oppositional attitudes on FGM and intersex surgery clearly support societies
ingrained commitment to normative constructions of sex and identity (Carroll,
2012). Through the opposing to FGM, and not intersex surgery this is not only
hypocritical but it also propagates these medical practices that in turn aid in the
reinforcement of gender norms and stereotypes.
It is evident there is a very strong argument established for why intersex
surgery should be challenged, not just because of what occurs afterwards but the
underlying connotations. However, imagine you were to have a child who was born
intersex; one would like to think these views would remain unchangeable; however
the reality might be different. The main argument for why intersex surgery should be
administered is the social implications on the child if they are raised intersex. It is
argued that children who grow up intersex risk psychologically traumatizing
experiences because they do not fit the social standards of gender, thus leading them
as well as their family to be ostracised socially due their anomalous nature. This
consequently leads to the child being unable to form a successful gender identity
(Greenberg, 2003).
There is dispute within queer theory as to where pleasure resides, one side
argues that pleasure is obtained exclusively through the use of one’s genitals, the
other side argues that pleasure is not localized but rather attained by the body as a
whole. Morland poses a theoretical conundrum as he examined the notion of pleasure
and whether it can be conceived as something to be lost. If sex can only be
pleasurable, then the inability to have pleasure is the loss of sex and sexual pleasure,
however, sex is something complex and does not always involve straightforwardly:
pleasure versus the absence of pleasure. So the idea of sexual pleasure being lost is
not so simple. Additionally if it can be seen that pleasure isn’t completely localized to
one area, this could mean that it is still possible for intersex individuals to find

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alternative means of pleasure. This in turn can weaken the argument for surgical
intervention, as pleasure is not a concrete entity, but rather an idiosyncratic thing
(Morland, 2009: 292). Despite evidence strongly supporting the outlawing of intersex
infant surgery, realistically, if that were to happen there is not enough support from
the relative societies. All round, there is not enough education on the matter of
intersex, there is not enough specific support and counseling services available,
overall society, as it stands, will not be able to support the ramifications of such a
decision. And only once there is a change in the attitudes toward, and awareness of
intersex, the criminalization of surgical intervention is unrealistic. One can however
look to Colombia as an example.
In 1999 Colombia reformed their law on infant intersex surgery and this may pose a
possible solution that satisfies both parties. Typically before the decision is made to
operate on the infant, there are several issues that arise in the process that need to be
addressed: parents are often not fully informed about intersexuality in general, but
also the potential consequences the surgery might entail. Furthermore intersexuality is
often deemed a problem or something that needs to be fixed urgently, this is
incredibly inaccurate. The Colombian court have granted the parents to continue
consenting to the surgeries, however, the procedure of consent is more thorough than
it was before to ensure that the child’s interests are at the heart of the decision. The
court requires that the consent must be in writing, parents must be fully informed
completely about intersexuality but also the physical and psychological implications
of the surgery. Furthermore, before commencing with the surgery, this authorization
must be given on numerous occasions so that parents have enough time to process and
understand the importance of the decision at hand. Overall the law takes extra
measures to ensure that parents make a fully informed decision regarding their child
with the elimination of cofounding factors (Greenberg, 2003).
Up till now, the argument has not considered alternative means addressing and
incorporating intersex into society. Unsurprisingly this leads to the examination of the
bigger picture, the bigger picture being contemporary society, rather than the
individual. We can see that all things queer are subject to a lot of attention recently
through mainstream media, and whether the audience may agree or not, their attention
is still occupied. These invitations and acceptance of alternative options that do not fit

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the normative moulds is stirring a shift in attitudes of society: for example pop culture
icons Angelina Jolie, Gwen Stefani, as well as others, have adopted the decision to
raise her children as gender-neutral, leaving the ultimate decision to their child rather
than enforcing the societal gender binaries. Countries such as Australia, South Africa
and Malta have amended their protection and discrimination laws to include intersex.
Just this year Malta became the first country to outlaw non-consensual medical
interventions. Additionally, Sweden has recently introduced the gender-neutral
pronoun ‘hen’ as a means of personalising gender neutrality (OII Europe, 2015).
Through the eventual normalization of the queer, the importance of exercising
individual choice and the freedom to do so without risk of exclusion is highlighted. It
is optimistic, but with such progress aforementioned, even if it is minor, it is possible
to imagine an idyllic, but attainable future in which these normative boundaries are
undone to welcome all that exists between the restrictive and detrimental sex and
gender binaries. And perhaps instead of looking to the individual to change, one
should examine the environment in which an individual, from birth, feels the
obligation to change to be able to belong to it.
~When a flower doesn’t bloom you fix the environment in which it grows, not the flower~
References:
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