ACSBlog

By Julie A. Greenberg, a professor at Thomas Jefferson School of Law

The term "intersex" evokes diverse images, typically of people who are both male and female or neither male nor female. Neither vision is accurate. The millions of people with an intersex condition, or a DSD (difference of sex development), are men and women whose sex chromosomes, gonads, or sex anatomy do not fit clearly into the male/female binary norm. Until recently, intersex conditions were shrouded in shame and secrecy; many adults were unaware that they had been born with an intersex condition and those who did know were advised to hide the truth. Current medical protocols and societal treatment of people with a DSD are based on false stereotypes about sex, gender, sexual orientation, gender identity, and disability, which create unique challenges to framing effective legal claims and building a strong cohesive movement. (For some of my earlier work on this topic, see http://ssrn.com/author=252410.)

Intersexuality and the Law: Why Sex Matters examines the role that legal institutions can play in protecting the rights of people with a DSD. The first part of the book explains the sex, gender, and disability assumptions underlying the current medical protocol for the treatment of infants born with an intersex condition. Although most intersex conditions are not disabling, pose no physical risk, and require no medical intervention, infants with these conditions often are subjected to invasive cosmetic surgeries to alter their genitalia so that their bodies conform to a binary sex norm. These surgeries provide no medical benefit and have not been proven to enhance the child’s psychological well-being, but they can lead to a number of problems. They can render women incapable of experiencing an orgasm. They may also result in infection, scarring, incontinence, and other severe physical complications and emotional trauma.

The major goal of the intersex movement is to challenge these medical practices. In addition, the intersex movement is also concerned that people with an intersex condition whose gender identity does not match the sex assigned to them at birth will face the same legal obstacles confronting transgender people. Sometimes, government authorities refuse to recognize their self-identified gender as their legal sex for purposes of marriage, identity documents, and appropriate housing and restroom use.

by Jeremy Leaming

Opponents of the Affordable Care Act’s provision that requires people who can afford it to obtain minimum health insurance coverage or pay a penalty with their annual income tax return have loudly argued that it upsets the balance between the regulatory powers of the federal government and state governments.

But in a recent piece for The Times-Picayune, a New Orleans daily, distinguished law professor at the University of Southern California Rebecca L. Brown says the federalism argument is “false.”

First she notes there is “no serious argument that health care and insurance purchasing are not economic, or that they affect purely local interests – the arguments in all prior Commerce Clause challenges.” (Indeed the Constitution’s commerce clause provides Congress the authority to regulate conduct that substantially affects interstate commerce. The health care market accounts for more than 17 percent of the U.S. economy, and everyone, at some point, participates in it or is constantly at risk of incurring substantial medical expenses.)

Opponents of the law are aware of the parameters of the commerce clause and federal court precedent surrounding it, and are actually pushing an individual-rights argument. “The Affordable Care Act challenge,” Brown writes, “powerfully evokes that libertarian tradition by arguing that the requirement to purchase health insurance invades personal decision-making.”

But that argument, Brown continues, is as wobbly as the federalism argument.