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Medical malpractice case highlights issues of gender identity

American society is slowly but surely coming to accept the idea that gender can be fluid - including biological gender. While the vast majority of children are born with clearly male or female genitalia, there is a significant minority of children who are born intersex.

But gender is not just defined by a person's sex organs. There are also complex components of personality and social identity, and these components may not solidify for years. For this reason, many medical professionals now believe that gender assignment surgery at a young age is inappropriate, and could lead to significant problems for individuals who were surgically assigned one gender but identify as the other.

A pending medical malpractice lawsuit could prove to be a precedent-setting case for intersex individuals who received unwanted gender assignment surgery. While it is not playing out here in New Jersey, it could prove important in future cases in New Jersey and elsewhere.

The lawsuit is being filed on behalf of a 10-year-old from South Carolina identified only as M.C. The child was born with a rare intersex condition known as ovotesticular disorder of sexual development. Prior to being adopted at age 2, M.C. was a ward of the state, and the state Department of Social Services signed off on a gender assignment surgery when M.C. was just 16 months old.

The surgery made M.C. biologically female, but at age 7, the child started to identify as a boy. His adoptive parents have supported his decision, and changed his name accordingly. The major problem, of course, is that M.C. no longer has a penis because it was removed during what has been called an unnecessary gender assignment surgery.

Commenting on the lawsuit, an attorney representing the plaintiffs noted that "our client’s penis was surgically removed for no medical reason. He’s going to have to live with that for the rest of his life. No surgery he can get can give him back what he lost.”

Some landmark case studies have shown that children who are assigned a gender at a young age can suffer serious psychological and emotional issues if they later come to identify with a different gender. It is not merely an issue of socializing someone as a "boy" or a "girl." Gender is complex, and an intersex individual must be free to grow into whatever gender they ultimately feel is right for them.

Source: The Post and Courier, "Lawyers prepare for medical malpractice trial in rare ‘intersex’ lawsuit," Lauren Sausser, May 25, 2015

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Breslin and Breslin, PA, Donald A. Caminiti, Esq., was one of six law firms selected by the Attorney General of the State of New Jersey to act as special counsel to represent it in its lawsuit against the tobacco industry to recover Medicaid and other health related costs incurred by the state resulting from tobacco related illnesses.