Lawsuit for unconstitutional sex assignment surgery to proceed in US federal court

M.C. v Aaronson [2013] (22 August 2013)

Summary

The United States District Court for the District of South Carolina Charleston Division has held that a sex assignment surgery on a child with an intersex condition which removed the child’s ability to procreate may have violated the constitutional right to procreation. The defendants’ motions to dismiss the case were denied and the plaintiff’s motion for expedited discovery was granted. This case has not yet proceeded to summary judgment.

Facts

The plaintiff, M.C., is an eight-year-old child who was born with a condition called ovotesticular difference/ disorder of sex development (“ovotesticular DSD”). This condition is characterised by the presence of both ovarian and testicular tissues.

Shortly after M.C. was born in November 2004, the South Carolina Department of Social Services began investigating M.C.’s biological parents for possible neglect. M.C.’s biological parents relinquished their parental rights in February 2005 and M.C. was placed in the Department of Social Services’ custody. M.C. lived with foster families until he was placed with the Crawfords, who ultimately adopted him. While in the legal custody of the Department, M.C. was evaluated by a team of physicians (the defendant Doctors Aaronson, Appiagyei-Dankah and Amrhein) who recommended that M.C. undergo sex assignment surgery to make his body appear female. The former director of the Department and several Department case workers decided to authorise M.C.’s sex assignment surgery.

On 18 April 2006, Aaronson performed sex assignment surgery on M.C., removing the phallus and testicular tissue and making M.C.’s body appear female. The Crawfords adopted M.C. in December 2006 and initially raised M.C. as a female. However, M.C.’s gender developed as male and he is now living as a boy.

On 15 May 2013, M.C. (through the Crawfords) filed a claim in the federal District Court against the physicians who recommended and performed the surgery and against those Department officials who authorised it. M.C. alleged that the defendants violated his Fourteenth Amendment substantive and procedural due process rights to bodily integrity, privacy, procreation and liberty. The defendants later filed motions to dismiss the complaint and M.C. filed a motion to expedite discovery.

Decision

The defendants argued that M.C.’s complaint should be dismissed on the basis of qualified immunity. District Judge Norton noted that to escape the dismissal of a complaint on qualified immunity grounds, M.C. must allege a violation of a right that was clearly established at the time of the violation.

Whether the rights were clearly established at the time of the surgery

The constitutional rights that M.C. identified were his rights to procreate and make procreative decisions, his rights to bodily integrity, privacy and self-determination in matters of adult sexual intimacy and expression, as well as the rights to pre-deprivation notice and hearing. The defendants asserted that the constitutional rights that M.C. alleges were violated were not “clearly established” in April 2006. Additionally, they argued that they did not violate a clearly established constitutional right because M.C.’s mother consented to the surgery.

When considering a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, the Court “must accept the plaintiff’s factual allegations as true and draw all reasonable inferences in the plaintiff’s favour”. Accordingly, as M.C.’s complaint contained no allegations that M.C.’s birth mother consented to or was aware of M.C.’s surgery, the Court could not find that M.C.’s mother had consented to the sex assignment surgery and had exercised M.C.’s constitutional rights on his behalf. District Judge Norton therefore considered the constitutional rights alleged to have been violated.

District Judge Norton focused upon M.C.’s right to procreation. He noted that the US Supreme Court has held that the decision “whether or not to beget or bear a child” is at the very heart of the choices protected by the Due Process clause. The Supreme Court and the Fourth Circuit have made it clear that forced sterilisation, “while not categorically unconstitutional, implicates significant due process concerns”. M.C. alleged that the surgery removed his ability to procreate as a male; evidence also suggested that M.C. had no uterus and it would therefore be impossible for him to procreate as an adult female. Therefore, as the Court was required to accept M.C.’s factual allegations, District Judge Norton concluded that M.C. had no ability to procreate. His Honour held that M.C. had sufficiently articulated that the defendants violated M.C.’s “clearly established” constitutional right to procreation. It was not necessary for the Court to consider M.C.’s arguments regarding his other substantive due process rights to privacy and bodily integrity.

In relation to M.C.’s procedural due process complaint, District Judge Norton held that the allegations stated a “plausible claim that the defendants violated M.C.’s procedural due process rights”. His Honour determined it was unnecessary to consider the test for due process outlined in Mathews v Eldridge, 424 U.S. 319 (1976) as such an analysis is “far more appropriate for summary judgment, when the parties will have undoubtedly developed a full factual record”.

Whether the facts make out a violation of a clearly established right

The Court held that M.C. pleaded sufficient facts to allege that the defendants violated his clearly established right. Accordingly, the Court denied the defendants’ motions to dismiss on the basis of qualified immunity.

Conclusion

District Judge Norton concluded that M.C. sufficiently alleged that the defendants violated at least one clearly established constitutional right – the right to procreate – when they recommended, authorised or performed the sex assignment surgery in April 2006. However, he highlighted that it is yet to be seen whether “M.C.’s claims can withstand summary judgment challenges, or even the assertion of qualified immunity at the summary judgement stage”.

Commentary

M.C. v Aaronson is likely to be a landmark case should it proceed to trial. The Southern Poverty Law Center, which filed M.C.’s lawsuit, has noted that this case is the first of its kind in the US.

Doctors have performed sex assignment surgery on young children with intersex conditions since the 1950s, often failing to provide sufficient information about the risks of surgery to the child’s parents or guardians. Decisions regarding sex assignment surgery have previously not ended up in the courts as these kinds of surgeries have, until recently, been accepted as common practice in relation to intersex conditions and parents have typically consented out of concern for their child’s well-being. In the past few years, academics and advocates have begun to consider the negative impact of such surgery upon intersex children. In particular, in 2005 the San Francisco Human Rights Commission published a report on the medical “normalisation” of intersex people, declaring that infant genital surgeries and sex hormone treatments that are not performed for the treatment of physical illness are unnecessary. The Commission suggested that such “normalising” interventions done without the patient’s informed consent are inherent human rights abuses.

In 1999, the Constitutional Court of Columbia imposed significant restrictions on gender assignment surgery conducted on intersex infants without their consent. The Court held that parents may only consent to surgery for children under the age of five if they have been given accurate information about the risks and the existence of alternate treatment views which reject early surgery. Additionally, written consent must be given on more than one occasion, over an extended period of time, giving parents enough time to fully understand their child's condition and the consequences of the decision. The Court suggested that parents could not consent to surgery on a child once the child has reached five years of age, as the child has already developed a gender identity.

Until courts in other jurisdictions adopt a similar approach, doctors are likely to continue to operate on young children where parents are uncomfortable with their child’s appearance. In Australia, a submission by Organisation Intersex International Australia to the Senate inquiry on involuntary or coerced sterilisation said surgeries often take place due to “family distress”, a parent’s desire for their child to have “normal” prospects of forming sexual relations when they grow up and to eliminate "cultural disadvantage”.

This decision is available online at: http://www.splcenter.org/sites/default/files/downloads/case/order_denying_def._motion_to_dismiss_0.pdf

Miranda Webster is a volunteer at the Human Rights Law Centre.