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The American Journal of Bioethics
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Genital Modifications in Prepubescent Minors:
When May Clinicians Ethically Proceed?
The Brussels Collaboration on Bodily Integrity
To cite this article: The Brussels Collaboration on Bodily Integrity (17 Jul 2024): Genital
Modifications in Prepubescent Minors: When May Clinicians Ethically Proceed?, The American
Journal of Bioethics, DOI: 10.1080/15265161.2024.2353823
To link to this article: https://doi.org/10.1080/15265161.2024.2353823
© 2024 The Author(s). Published with
license by Taylor & Francis Group, LLC.
Published online: 17 Jul 2024.
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TARGET ARTICLE
THE AMERICAN JOURNAL OF BIOETHICS
Genital Modications in Prepubescent Minors: When May Clinicians
Ethically Proceed?
The Brussels Collaboration on Bodily Integrity*
ABSTRACT
When is it ethically permissible for clinicians to surgically intervene into the genitals of a legal
minor? We distinguish between voluntary and nonvoluntary procedures and focus on
nonvoluntary procedures, specifically in prepubescent minors (“children”). We do not address
procedures in adolescence or adulthood. With respect to children categorized as female at
birth who have no apparent differences of sex development (i.e., non-intersex or “endosex”
females) there is a near-universal ethical consensus in the Global North. This consensus holds
that clinicians may not perform any nonvoluntary genital cutting or surgery, from “cosmetic”
labiaplasty to medicalized ritual “pricking” of the vulva, insofar as the procedure is not strictly
necessary to protect the child’s physical health. All other motivations, including possible
psychosocial, cultural, subjective-aesthetic, or prophylactic benefits as judged by doctors or
parents, are seen as categorically inappropriate grounds for a clinician to proceed with a
nonvoluntary genital procedure in this population. We argue that the main ethical reasons
capable of supporting this consensus turn not on empirically contestable benefit–risk
calculations, but on a fundamental concern to respect the child’s privacy, bodily integrity,
developing sexual boundaries, and (future) genital autonomy. We show that these ethical
reasons are sound. However, as we argue, they do not only apply to endosex female children,
but rather to all children regardless of sex characteristics, including those with intersex traits
and endosex males. We conclude, therefore, that as a matter of justice, inclusivity, and gender
equality in medical-ethical policy (we do not take a position as to criminal law), clinicians
should not be permitted to perform any nonvoluntary genital cutting or surgery in
prepubescent minors, irrespective of the latter’s sex traits or gender assignment, unless
urgently necessary to protect their physical health. By contrast, we suggest that voluntary
surgeries in older individuals might, under certain conditions, permissibly be performed for a
wider range of reasons, including reasons of self-identity or psychosocial well-being, in
keeping with the circumstances, values, and explicit needs and preferences of the persons so
concerned. Note: Because our position is tied to clinicians’ widely accepted role-specific duties
as medical practitioners within regulated healthcare systems, we do not consider genital
procedures performed outside of a healthcare context (e.g., for religious reasons) or by
persons other than licensed healthcare providers working in their professional capacity.
INTRODUCTION
When is it ethically permissible for a licensed health-
care provider to surgically intervene into the genital,
sexual, or reproductive anatomy of a child, defined
here as a prepubescent legal minor? This question has
taken on greater urgency after two major U.S. hospi-
tals pledged, in late 2020, to stop performing what
they described as “medically unnecessary” genital sur-
geries on children born with variations of sex charac-
teristics, also known as intersex traits, insofar as the
children either fail to consent or assent to the
surgeries or lack the capacity to do so (LCH 2020;
Luthra 2020). We will call these nonvoluntary genital
procedures, to be contrasted with voluntary proce-
dures, the latter of which raise a different set of
medical-ethical issues and will not be examined here.
For example, we will not evaluate so-called
gender-affirming procedures in transgender individu-
als, given that medicalized (as opposed to social)
interventions for such purposes are virtually never ini-
tiated prior to the onset of puberty. This is especially
true of genital surgeries in this population, the vast
majority of which occur, if at all, at the request of the
© 2024 The Author(s). Published with license by Taylor & Francis Group, LLC.
CONTACT Brian D. Earp brian.earp@philosophy.ox.ac.uk University of Oxford, Oxford Uehiro Centre for Practical Ethics, 16-17 Saint Ebbe’s St, Oxford OX1 1PT,
UK and Centre for Biomedical Ethics, Yong Loo Lin School of Medicine, National University of Singapore, 10 Medical Dr, #02-03 MD 11, Singapore 117597
*For the complete author list, see Appendix A.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License (http://creativecommons.org/licenses/
by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered, transformed, or
built upon in any way. The terms on which this article has been published allow the posting of the Accepted Manuscript in a repository by the author(s) or with their consent.
KEYWORDS
Children and families; intersex;
professional ethics; gender/
sexuality; circumcision; ritual
pricking; “FGM”
https://doi.org/10.1080/15265161.2024.2353823
2 THE BRUSSELS COLLABORATION ON BODILY INTEGRITY
individual after an age of legal majority (Wright et al.
2023). They are thus neither nonvoluntary nor per-
formed on children according to our definition.1
Meanwhile, scholarly discussions prompted by a
recent U.S. federal court case (United States vs.
Nagarwala) have raised significant doubts about the
permissibility of clinicians performing any medically
unnecessary genital operations on approximately half of
all persons under the age of 18 years, irrespective of
voluntariness: namely, those judged to have anatomically
typical female genitalia (i.e., non-intersex or “endosex”2
females) (see Duivenbode and Padela 2019a; Cohen
et al. 2020; Earp 2020; Rosman 2022; Bootwala 2023;
Shweder 2023; Bader 2023; Taher 2023; see also
Buckler 2024).
Following the Nagarwala case, the STOP FGM Act
of 2021 (H.R. 6100, enacted as Pub. L. 116–309) was
passed by the U.S. Congress. While some scholars sug-
gest this law could be vulnerable to constitutional chal-
lenge due to its sex-specific wording and lack of
1 This is not to suggest that all voluntary genital cutting or surgery is
automatically (i.e., simply by virtue of being voluntary) ethically sound.
Nor does it suggest that there is a consensus as to when, if ever, deci-
sions to undergo such procedures are in fact voluntary in the sense
required for valid consent (Kiener 2023), even in the case of adults
(Esho 2022). In the current discourse, there has been some discussion
around the use of medical interventions such as hormones or surgery
to modify the bodies of postpubescent minors (“adolescents”) who
identify as trans or nonbinary (Milrod 2014; Horowicz 2019; Mahfouda
et al. 2019; Ashley 2019). Due to space constraints and our focus on
prepubescent minors, we are not able to enter into—and do not take a
position on—those debates in this article (for context, see Ghorayshi
2023; for analysis, see Grimstad et al. 2023). Nor do we attempt to
spell out the conditions for giving morally valid consent to elective
genital procedures such as cosmetic labiaplasty (increasingly performed
on minors in the United States; see Luchristt, Sheyn, and Bretschneider
2022; for discussion, see Kalampalikis and Michala 2023). Instead, we
are primarily concerned with interventions performed on younger chil-
dren who have not personally requested them or whose inability to
provide valid consent to them is not in question. Even so, we note that
older minors with intersex traits often have undergone medically
unnecessary surgeries or hormonal interventions against their will or
without their (adequately informed) permission based upon the wishes
of parents or physicians, sometimes under conditions of partial or total
deception as to the real purpose of the procedure (Berger, Ansara, and
Riggs 2023; see also Zieselman 2015). Even today, such minors remain
vulnerable to coercion from adults seeking to alter their intersex traits
(Human Rights Watch 2017; Rubashkyn and Savelev 2023). Arguably,
such a situation is ethically different from that of older minors or
adults, including but not limited to trans or intersex persons, who
actively request certain body modifications: for example, to alleviate
distress or dysphoria associated with their sexed anatomy, or to better
align their embodiment with their sense of self (Kraus 2015; cf.
Dembroff 2019). That being said, we also acknowledge the existence of
concerns that some minors may face undue pressures to change their
bodies, or may do so without being adequately informed about the
scope or magnitude of the potential risks, many of which are the sub-
ject of ongoing research (e.g., Cass 2024; for critiques, see Grijseels
2024; Horton 2024; Noone et al. 2024; see also Robinson et al. 2023;
Gorin 2024; Campo-Engelstein, Jackson, and Moses 2024).
2 Endosex, in contrast to intersex, refers to “innate physical sex charac-
teristics judged to fall within the broad range of what is considered
normative or typical for ‘binary’ female or male bodies by the medical
field, or to persons with such characteristics” (Carpenter, Dalke, and
Earp 2023, 225). See also Catto (2020) and Monro etal. (2021).
religious exemption (e.g., Rosman 2022; Shweder 2022a;
for an earlier, related analysis, see Bond 1999), it cur-
rently clarifies that clinicians or others who perform
genital cutting or surgery for “non-medical reasons
[on] the external female genitalia” of a legal minor,
however minimal—that is, including medicalized ritual
“pricking” of the vulva, with or without removal of tis-
sue—will be in breach of federal criminal law.
In this article, we will not be taking a position as
to the appropriateness, or inappropriateness, of crimi-
nalizing ritual genital cutting of endosex female
minors, including medicalized forms undertaken by a
licensed physician, as was alleged in the Nagarwala
case. In fact, we will not be advocating for or against
any legal position in this article. Instead, we will be
focused on moral arguments and on assessing their
implications for clinical ethics and policy. Nevertheless,
we mention the Nagarwala case at the outset to illus-
trate the seriousness with which at least some forms
of medically unnecessary genital cutting of legal
minors are treated in a Western context, even when
the cutting is relatively superficial (e.g., “pricking”), is
requested by the child’s parents for explicitly religious
reasons,3 and is done with sterile instruments by a
trained clinician.
Given this background, along with other rapidly
evolving developments (see below for international
context), it seems necessary to perform a critical anal-
ysis of all medically unnecessary, nonvoluntary genital
cutting or surgery performed on children in regulated
healthcare settings. This article represents one such
analysis by a diverse group of stakeholders with a
long-standing interest in the subject. The authors
comprise a large informal network of physicians,
nurses, and other healthcare professionals, along with
philosophers, historians, bioethicists, psychologists,
sociologists, anthropologists, law professors, gender
scholars, feminists, sexologists, human rights advo-
cates, and policy experts from more than two dozen
countries and six continents (see Appendix A for
more information).
3 It is sometimes argued that medically unnecessary (i.e., ritual) female
genital cutting is “not a religious practice” but is “merely cultural”—i.e.,
with the intended implication that it is less worthy of respect or con-
sideration than other forms of ritual genital cutting, such as penile
circumcision, or that parents or religious leaders who believe it is reli-
giously required are simply mistaken. However, this view is untenable
(Davis 2001; Myers 2015; Earp, Hendry, and Thomson 2017;
Duivenbode and Padela 2019a; Dabbagh 2022; Shweder 2023). In at
least some Muslim communities (e.g., the Dawoodi Bohra—involved in
the Nagarwala case), both female and male genital cutting are regarded
as obligatory based on locally authoritative interpretations of
non-Qur’anic sources of Islamic jurisprudence, such as the Hadith
(Bootwala 2019a, 2019b, 2019c; Duivenbode and Padela 2019b; see also
Dawson and Wijewardene 2021; Dabbagh 2022).
THE AMERICAN JOURNAL OF BIOETHICS 3
Taking a large number of factors into consider-
ation, our analysis concludes that clinicians, qua clini-
cians, should not be permitted to perform any
nonvoluntary genital cutting or surgery on any child,
regardless of the child’s sex traits or socially assigned
gender, unless doing so is urgently necessary to pro-
tect the child’s physical health. For voluntary proce-
dures, whether in older minors or adults, a different
ethical standard might reasonably apply: for example,
one that takes into consideration the known or
expressed, rather than merely feared or anticipated,
psychosocial concerns or identity-based needs of the
individual. However, we do not explore that possibility
in any great depth, given our focus on nonvoluntary
procedures.
The article proceeds as follows. In the next section,
we provide historical and medical background on the
current treatment of children with intersex traits. We
then introduce the contemporary movement for
gender-equal “genital autonomy”4 and further qualify
the scope of this article’s arguments. Following that,
we outline the mainstream ethical consensus regarding
genital operations on endosex female children, before
returning to the aforementioned hospital pledges to
similarly protect children born with intersex traits.
After noting certain gaps and ambiguities in these
statements, we highlight their use of the terms “med-
ical necessity” and “physical health” to establish clear
ethical benchmarks for proceeding with nonvoluntary
genital procedures in this population. We conceptually
unpack these benchmarks and argue they are justified.
As a part of this, we discuss at length the ethical rel-
evance of human genitalia being considered as “pri-
vate” or “intimate” anatomy in many cultures.
We then explain why the same ethical standards
now widely applied to endosex females, and increas-
ingly to some children with differences of sex devel-
opment resulting in intersex traits, should ultimately
be applied to all children irrespective of sex character-
istics. Over the course of the article, we consider and
respond to several prominent or likely objections to
our proposal, including objections based on presumed
parental decision-making authority over children’s
bodies, claims of harm or benefit in relation to differ-
ent types of genital modification, and reportedly high
rates of retrospective endorsement of childhood geni-
tal surgeries in personally affected individuals.
4 As Svoboda (2013) explains: “All forms of genital cutting—female gen-
ital cutting (FGC), intersex genital cutting (IGC), male genital cutting
(MGC), and even cosmetic forms of FGC (CFGC)—are performed in
a belief that they will improve the subject’s life. Genital autonomy is a
unified principle that children should be protected from [nonvoluntary]
genital cutting that is not medically necessary” (237).
A word about context and scope: Although we
believe our arguments are applicable to a wide range
of cultural settings, we will limit our analysis in this
article to so-called Western countries of the Global
North—primarily those in North America, Australasia
(viz., Australia and New Zealand), and Europe—inso-
far as they have relevantly similar healthcare systems,
legal traditions, and medical-ethical norms.5 We also
limit our discussion to procedures performed by
licensed clinicians in their role as medical providers
within regulated healthcare systems. Accordingly, we
will not be making any policy suggestions in relation
to child genital procedures performed outside of a
healthcare context, or by persons other than licensed
clinicians operating in that capacity.
Thus, for example, we do not take a position on
policies regarding (a) ritual penile circumcision of
infants or newborns as carried out by an authorized
community member within the context of a religious
ceremony (e.g., a brit milah in the case of Judaism)
(see, e.g., Silverman 2006; for an alternative perspec-
tive, see Goodman 1999), or (b) relevantly similar
male or female genital cutting practices considered to
be religiously required within some sects of Islam
(e.g., male or female khatna, practiced in some South
and Southeast Asian Muslim communities; see note 3
for details) (Rizvi et al. 1999; Merli 2008, 2010, 2012;
Johari 2017; Taher 2017; Bootwala 2019a, 2019b,
2019c; Rashid, Iguchi, and Afiqah 2020; Jawher 2021;
Shweder 2023; Taher 2023; Subramanian 2023).
Although many of the ethical arguments in this article
may have relevance for such procedures, our substan-
tive policy proposals are focused exclusively on nonre-
ligious procedures, given the distinctive moral and
legal concerns that are raised by practices performed
in accordance with perceived religious obligations
(Rosman 2022). Note that we do, however, briefly dis-
cuss so-called “routine” penile circumcision as per-
formed in the United States, as this is widely carried
out by licensed clinicians in that country for entirely
nonreligious reasons while also being medically unnec-
essary (for details, see Appendix B).6
5 We acknowledge that the similarity of some of these norms across
contexts is due in large part to European colonialism. For a recent
discussion of the implications of colonialism for bioethics, see
Arguedas-Ramírez (2021).
6 We note that, in the United States, the overwhelming majority of non-
voluntary penile circumcisions are not, in fact, performed for religious
reasons, either by Muslims or Jews; rather, they are performed on a
routine basis—i.e., in a “secular” context—by healthcare providers, due
to the medicalized, nonreligious majority birth custom unique to that
country (see Appendix B). Moreover, these so-called “routine” circum-
cisions are not generally considered ritually valid, and therefore do not
meet traditional religious requirements, at least among ultra-Orthodox
Jews, and among many observant Jews more generally (Reis 2021b). As
4 THE BRUSSELS COLLABORATION ON BODILY INTEGRITY
BACKGROUND ON INTERSEX
To frame our analysis, we will be focusing on the
aforementioned hospital-level policy changes regarding
genital surgeries in children born with intersex traits
(see “Two Recent Pledges” below). Also known as
congenital variations in sex characteristics (Carpenter
2018a), intersex traits may be associated with a num-
ber of conditions such as congenital adrenal hyperpla-
sia (CAH), partial or complete androgen insensitivity,
or mixed gonadal dysgenesis. These variations, in
turn, may be caused by a range of factors including
interactions among genes or gene expression, enzyme
activity, hormone exposure, and hormone receptor
function (Liao 2022; Conway 2023). Although intersex
conditions may be detected throughout life and are
not always recognized at birth, it has been estimated
that 1 or 2 out of every 1,000 infants is born with
noticeable intersex traits (Blackless et al. 2000; for
critical discussion see Sax 2002; see also the exchange
between Hull and Fausto-Sterling 2003).7
Since the 1950s, influenced by postwar cultural
trends and political debates surrounding the nature and
mutability of gender (see Eder 2022), U.S. physicians
began regularly performing “early” (i.e., infant) genital
surgeries in this population. At the time, it was widely
believed that a person’s sense of themselves as being
female or male was more a matter of “nurture” (roughly,
gendered socialization) than “nature” (roughly, intrinsic
biological factors) (Lee, Mazur, and Houk 2023; for a
critical discussion of such distinctions, see Fillod 2014).
It was therefore hypothesized that it would be easier to
ensure the eventual acceptance of one’s medically des-
ignated status as a boy or girl if nonnormative sex
traits or signs of sexual ambiguity were surgically hid-
den or removed before the child became aware of them
(Gonzalez-Polledo 2017; Catto 2020).
Accordingly, it became standard practice to use sur-
geries as well as hormonal interventions to try to con-
form these children’s inborn sexual anatomies to
a reviewer points out, it is true that some licensed healthcare profes-
sionals do (also) perform ritual circumcisions; however this would not
constitute operating qua clinician in a professional capacity in our
view—rather, it would be acting as a religious official—so these proce-
dures fall outside the scope of our analysis. Whether some form of
clinician involvement in a religious ceremony that features child genital
cutting or surgery might be consistent with their role-specific duties
(e.g., being on standby for harm reduction purposes while a religious
official performs the procedure) is an open question. For a discussion
of ritual alternatives to penile circumcision in a Jewish religious con-
text, see DuBoff and Davis (2023); for related arguments in a Muslim
context, see Dabbagh (2017, 2022).
7 Drawing on various sources, Abualsaud et al. (2021) give a wider
range of estimates: “1 in 4,500–5,500 for strictly defined ‘ambiguous
genitalia’ to 1 in 300 or higher when a broader definition is imple-
mented” (2789).
prevailing sociomedical ideals for binary or “absolutely
dimorphic” male or female embodiment (Blackless
et al. 2000). Subsequently, parents were commonly
instructed to deliberately conceal, or even lie about, the
existence or purpose of these procedures over the
course of the child’s upbringing, in part to avoid con-
fusing the child (Dreger 1999). The decision about sex
(and thus gender) designation for these children was
shaped by multiple factors. Historically, these factors
have included explicit efforts to prevent or discourage
nonnormative ways of being, such as growing up to be
gay or lesbian (see Reis 2021a).
A prominent assumption among healthcare pro-
viders then, as in the decades since, has been that
these early medical procedures would thus promote
“normal” psychosocial development: for example, by
fostering a more coherent sense of self-identity in
relation to dominant norms around sex, sexuality,
and gender. It was hoped that this would in turn
lead to greater self-esteem and self-acceptance by
the child, or at least reduce (anticipated) distress
and discomfort experienced by others in response to
the child’s bodily difference (Reis 2021b). However,
the main empirical premises behind this approach,
namely, that significant psychosocial benefits would
in fact accrue to the child because of early surgery
and that these benefits would, moreover, reliably
outweigh the associated risks of physical and mental
harm, were never subjected to rigorous testing
(Creighton and Liao 2004; Liao et al. 2019). Rather,
standard practice in this area became entrenched
and institutionalized long before the advent of mod-
ern evidence-based medicine (Diamond and Beh
2008; Garland and Travis 2020a; Dalke, Baratz, and
Greenberg 2020) as well as key developments in bio-
ethics and children’s rights (Brennan 2003; Reis
2019; Alderson 2023; Gheaus 2024).
Before proceeding further, it is important to note
that the presence of certain intersex traits can, in
some cases, signal the likely existence of an underly-
ing physical health problem requiring urgent medical
attention, including by means of hormones or surgery:
for example, to prevent death or long-term physical
impairment (see Feder 2014). A salient example of
such a condition is salt-wasting congenital adrenal
hyperplasia (CAH), for which hormone replacement
therapy may be indicated.8 So-called “gender
8 This so-called “classic” form of CAH can affect both 46,XX and 46,XY
individuals. We note that what requires urgent medical attention in
such cases is not the possible physical difference in genital morphology,
which can range from female-typical to male-typical in appearance, but
rather the salt-wasting condition that is life-threatening if left untreated:
i.e., by steroid substitution (Lang, Quinkler, and Kienitz 2023), not
genital-normalizing surgery.
THE AMERICAN JOURNAL OF BIOETHICS 5
normalization”9 procedures, by contrast, which we take
as our focus here, do not primarily serve such ethically
uncontroversial purposes. Instead, they are done for what
are sometimes characterized as “nonmedical” cultural or
cosmetic reasons, or, as noted, for intended but unproven
psychosocial gains that may or may not materialize (Earp,
Abdulcadir, and Liao 2023, 1, paraphrased).
Thus, as critics argue, and as we will discuss fur-
ther below, there is still today no compelling evidence
that nonvoluntary genital “normalization” procedures
actually cause, or even tend to cause, net positive out-
comes in affected individuals, whether in terms of
social adjustment, identity formation, self-acceptance,
family dynamics, sexual satisfaction, romantic success,
or any other facet of individual or relational well-being
(for discussions, see Cabral Grinspan and Carpenter
2018; Dalke, Baratz, and Greenberg 2020). More spe-
cifically, there is no evidence of causal effectiveness of
early surgery in these domains relative to, or con-
trolling for,
a. less risky or invasive interventions such as psy-
chosocial counseling,
b. voluntary surgery later chosen by oneself, if
desired, under conditions of informed consent, or
c. a combination of both.
Meanwhile, evidence of harm accumulates. With
respect to self-acceptance or self-esteem, for instance,
many intersex individuals report feeling that the his-
torical standard of care (i.e., nonvoluntary surgeries,
as well as repeated hormonal interventions, frequent
medical visits, invasive genital examinations, being
deceived by doctors and parents, and so on) had the
opposite of the intended effect. It made them feel they
could not be loved or accepted by others unless or
until they were medically “fixed” or “made normal”—
no matter how physically damaging or emotionally
painful the means (for examples and discussion, see
Chase 1998a; Dreger 1999; Davis 2015; Wall 2015;
Zieselman 2015; Pagonis 2017; Cabral Grinspan and
Carpenter 2018; Sosin 2020; Hart and Shakespeare-Finch
2021; Pagonis 2023; Haghighat et al. 2023).
In addition, and most importantly for our
purposes, the recent hospital pledges resulted from
9 Some in the medical community use the term “reconstructive” to
describe these surgeries (e.g., Buyukunal et al. 2021); however, such
language might be taken to imply that something is being constructed
“again” (i.e., restored to a former structure), whereas that is not accu-
rate in the cases under consideration. Instead, genitalia that have only
ever existed postnatally in one configuration are being surgically fash-
ioned into a novel configuration, albeit one that attempts to approxi-
mate an abstract perceived ideal for binary gendered bodies. See, for
example, Kraus (2013). For an analysis of the importance and ethical
implications of word choice in medicine, see Somerville (2006, 76).
years of advocacy, protest, and attempts at
consciousness-raising by intersex adults who did not
only regard themselves as having been physically or
psychosexually harmed by the genital surgeries to
which they were subjected as children, but who also
felt, more fundamentally, that they ought to have been
given a free and informed choice about whether to
undergo such surgeries when they were older and
capable of understanding the stakes (see previous
references).10
A MOVEMENT FOR GENITAL AUTONOMY—AND
QUALIFYING THE SCOPE OF THE ARGUMENT
The focus on personal choice in relation to (decisions
about) one’s so-called “intimate” anatomy (see Box 1
for a discussion of this terminology and its ethical rel-
evance) is not unique to advocates for intersex rights.
Rather, it has been at the heart of a now-worldwide
movement for genital autonomy whose contemporary
origins stretch back until at least the 1980s or 1990s.11
This movement has been, and continues to be, spear-
headed by persons of all sex characteristics and gen-
der identities who object passionately to having been
subjected to nonvoluntary genital procedures in early
childhood for contestable sociocultural reasons (e.g.,
conformity to gendered body aesthetics or heteronor-
mative sexual expectations) rather than out of a uni-
versally recognized physical health need.
Of course, individuals who resent having had their
genitals modified before they could give or withhold
consent may not be representative of all who experi-
enced such surgeries, many of whom report feeling
undisturbed by, or even appreciative of, the changes
made to their bodies earlier in life. Indeed, in some
surveys of individuals who underwent such surgeries,
10 Against this view, it is sometimes argued that certain nonvoluntary
genital procedures carry a lower risk of surgical complications or have
other medical advantages in comparison to their voluntary analogues,
and thus that the procedures are not directly comparable. We address
this argument in Box 3 and in Appendix B. However, even if such
disputable empirical claims were simply granted for the sake of argu-
ment, this would not defeat the view that individuals have a right
against clinicians performing medically unnecessary surgical procedures
on their sexual anatomy that they (the individuals) did not choose.
11 For illustrative contributions or analysis, see these references
(Somerville 1980; Wallerstein 1980; Romberg 1985; Denniston and
Milos 1997; Van Howe and Cold 1997; Chase 1998a; Toubia 1999;
Junos 1998; Lightfoot-Klein et al. 2000; Frisch 2002; Androus 2004;
Dekkers, Hoffer, and Wils 2005; Fox and Thomson 2005; Glick 2005;
Ehrenreich and Barr 2005; Darby and Svoboda 2007; Dreger and
Herndon 2009; Swarr, Gross, and Theron 2009; Fox and Thomson
2009; Denniston, Hodges, and Milos 2010; DeLaet 2012; Mason 2013;
Svoboda 2013; Johnson and O’Branski 2013; Carpenter 2016; Ammaturo
2016; Meddings and Wisdom 2017; Meoded Danon 2018; Bauer,
Truffer, and Crocetti 2020; Behrensen 2021; Chambers 2022; Remennick
2022; Meoded Danon, Schweizer, and Thies 2023; Fusaschi 2023;
Chapin and Garrett 2024; Allan 2024).
6 THE BRUSSELS COLLABORATION ON BODILY INTEGRITY
it is a minority of respondents who report opposing
them, albeit with considerable variance in opinion
depending on the questions asked and the respon-
dent’s diagnosed condition (e.g., Bennecke et al. 2021;
for a recent review of such findings, see Meyer-Bahlburg
2022). As we will discuss, such surveys tend to have
low response rates and may be subject to confirma-
tion bias, sampling bias, or selection bias, among
other forms of bias affecting representativeness, mean-
ing that the true distribution of attitudes and experi-
ences in the relevant population is unknown. However,
even if it is “only” a sizable minority of affected per-
sons who feel harmed or violated by early genital sur-
gery, this would not thereby vindicate the status quo.
As Bennecke and colleagues note, “the justification of
elective genital surgery in childhood is fundamentally
an ethical problem; solutions for ethical problems
should not simply be based on the attitude of major-
ities” (920, emphasis added).
It is therefore necessary to evaluate the specific
arguments raised by proponents of genital autonomy,
as well as those raised by their critics, to reach an
informed conclusion. This is why we have come
together as a group of interdisciplinary scholars,
subject-area experts, and other stakeholders—with a
range of attitudes and experiences among us—to for-
mulate and defend a coherent medical-ethical stan-
dard in this area: that is, a standard for when it is
permissible, or impermissible, for a licensed healthcare
provider to “prick,” cut, excise tissue from, or (other-
wise) surgically operate on the genitals of a child who
cannot consent on their own behalf.
We reiterate that we consider ethical permissibility
only. Although we refer to laws that criminalize all
forms of medically unnecessary genital cutting or sur-
gery on endosex females, we acknowledge that what is
unethical or professionally unacceptable and what
should be criminal are different questions.12 As noted
previously, therefore, we do not take a position on
whether it is justified to apply criminal penalties to
those who perform such procedures, be it on endosex
females, endosex males, or children born with intersex
traits (whether categorized as female or male). Instead,
we are concerned solely with the ethical obligations of
healthcare providers acting in that professional capac-
ity who are therefore bound by established principles
12 There are various conflicting legal arguments in this space, and there
is no consensus among the present authors as to which set of argu-
ments is most compelling (e.g., Van Howe et al. 1999; Davis 2001;
Schüklenk 2012; Merkel and Putzke 2013; Johnson 2013; Ben-Yami
2013; Savulescu 2013; Berer 2015; Munzer 2015; 2017; Berer 2019;
Ammaturo 2016; Jacobs and Arora 2017; Ahmadu 2017; Balashinsky
2018; Chambers 2018; Cohen-Almagor 2020; Möller 2020; Jacobs 2021;
Gruenbaum and Ahmed 2022; Duivenbode 2023).
of healthcare ethics and role-specific duties and
standards.
On the patient side, again, we are concerned only
with legal minors who have not yet entered puberty
(Euling et al. 2008). We will assume, for the sake of
argument, that all such minors are insufficiently
autonomous with respect to medically unnecessary
genital cutting or surgery to provide their own ethi-
cally valid consent. In any case, our recommendations
apply exclusively to prepubescent minors who are
insufficiently autonomous with respect to such proce-
dures (for a theoretical discussion, see Zagouras,
Ellick, and Aulisio 2022). To avoid ambiguity, we will
use the word “child” in a specialized sense to refer to
such minors, and only such minors, going forward.
Our question, then, has to do with the “zone of
parental discretion” for authorizing medically unneces-
sary genital cutting or surgery on behalf of a child so
defined (Alderson 2017; Gillam 2016). Medical neces-
sity is defined later in the article.
LIMITS ON PARENTAL AUTHORITY: FROM
STATUS QUO TO PARADIGM SHIFT
In the countries with which we are exclusively con-
cerned (see above), it is uncontroversial that parents13
are not entitled, whether legally or morally, to autho-
rize simply whatever incursions into their child’s body
they may choose, even if they have benevolent inten-
tions (Taylor-Sands and Bowman-Smart 2022). Nor
are clinicians permitted to perform whatever surgical
procedures a child’s parents might request. Instead,
there is a spectrum of potential surgeries or (other)
body modifications a clinician might be asked to per-
form, ranging from the clearly permissible (e.g., life-
saving heart surgery) to the clearly impermissible (e.g.,
facial scarification, ritual tooth extraction), with a
number of less obvious examples in between (e.g.,
ear-pinning, surgery for polydactyly) (Council on
Ethical and Judicial Affairs 2019; Hodges, Svoboda,
and Van Howe 2002; Sarajlic 2020).
However, a lack of professional consensus regarding
some cases does not entail that a policy of default def-
erence to parental requests for surgery would neces-
sarily be justified (Godwin 2015; Odhiambo Oduor
2022). Instead, due to children’s heightened depen-
dence, vulnerability, and (relative) inability to decline
or adequately defend themselves against unnecessary
or nonvoluntary interventions into their bodies, it is
widely agreed that clear ethical standards as well as
appropriate practical measures to protect their bodily
13 Or legal guardians; we will use “parents” throughout for simplicity.
THE AMERICAN JOURNAL OF BIOETHICS 7
integrity and (future) bodily autonomy are required
(Van Howe 2013a; Hill 2015; Möller 2017; Gheaus
2018, 2021; Godwin 2011; Council on Ethical and
Judicial Affairs 2019; Taylor-Sands and
Bowman-Smart 2022).
This special concern for children’s rights and wel-
fare can be seen, for example, in the development of
enhanced healthcare ethics guidelines for dealing with
pediatric populations, or more generally in laws defin-
ing child-specific abuse or maltreatment. Irreversible,
or hard-to-reverse, skin-breaking procedures that alter
external body morphology, yet are not clearly medi-
cally indicated, come in for heightened scrutiny in
this regard. For example, cosmetic body piercing or
tattooing of young children is prohibited in many
jurisdictions, including multiple U.S. states, notwith-
standing parental permission (NCSL 2019; Breuner
et al. 2017; Chegwidden 2009; Loue 2020). Even
spanking or hitting a child “for their own good” has
been banned as a form of discipline in more than 50
countries,14 despite typically leaving no lasting physi-
cal mark (Gershoff and Durrant 2020).
In line with these measures, we think it is neces-
sary to clarify the circumstances under which a phy-
sician, nurse, or other healthcare provider (“clinician”
for short) may permissibly cut or surgically alter a
child’s genitalia. Such clarification is necessary both
for the sake of the child, to protect them from need-
less injury or unwarranted intrusions into their genital
anatomy, and for the sake of the clinician, so that
there is no confusion about when potential interven-
tions into a child’s genitalia would violate professional
ethical standards. Of course, clinicians must act with
due discretion and sensitivity toward their child-patients
in all aspects of their embodied personhood. But
when dealing with a child’s genital, sexual, or repro-
ductive anatomy, extra care and caution are required
(Fish, McCartney, and Earp 2023).
Consistent with this perspective, there is already a
wide consensus as to the precise ethical limits of
actions clinicians may take in relation to the genital
or sexual anatomy of at least some children. This con-
sensus holds that it is never ethically permissible—
indeed, it is a serious criminal offense in the United
States and elsewhere—for a clinician to cut into,
remove healthy tissue from, or otherwise surgically
alter the genitals of any child whose sex characteristics
14 This includes most of the countries of Central and South America,
most of Europe (including Scotland and Wales in the United Kingdom),
multiple countries in Africa and central Asia, and New Zealand.
Although the United States and Canada have not explicitly banned all
corporal punishment of children, the leading pediatric societies of
those countries do oppose the practice (AAP 2018a; CPPCY 2004).
are deemed to be biologically normative for girls: that
is, endosex females. Accordingly, with just one excep-
tion to be discussed shortly, any cutting or surgery, no
matter how superficial, is considered to fall outside
the zone of parental discretion.15 This means that cli-
nicians are not permitted to perform such a procedure
even if they judge it is unlikely to cause serious, or
indeed any, long-term physical harm; even if the par-
ents believe the cutting is a cultural or religious obli-
gation; and even if a plausible case could be made
that performing the operation would leave the child
better off in certain respects: for example, due to
anticipated psychosocial benefits, or in terms of harm
reduction through medicalization (AAP 2020; UN
2016; STOP FGM Act of 2021; for recent critical dis-
cussions, see Kimani, Barrett, and Muteshi-Stranchan
2023; Shell-Duncan 2023; Van Eekert et al. 2024).
As noted, there is just one exception to this strict
prohibition, not only legally, but also in terms of pro-
fessional standards of care and contemporary codes of
medical ethics: namely, when the genital operation is
medically necessary and so cannot, by any reasonable
standard, be delayed or deferred until the girl or
woman (or trans or nonbinary individual)16 can con-
sent. If the cutting is not medically necessary, by con-
trast, it is widely agreed she must be given the
opportunity to decide for herself, when she is suffi-
ciently mature,17 whether she accepts the following:
15 There have been a small number of attempts to argue against this eth-
ical consensus, or at least the punitive legal manifestation of it in the
form of criminalization, in recent years. These authors suggest that cli-
nicians in Western countries should, in fact, be allowed to perform
(what they regard as) de minimis forms of nonvoluntary ritual female
genital cutting of minors (e.g., AAP 2010; Arora and Jacobs 2016; Jacobs
and Arora 2017; Duivenbode and Padela 2019a; Porat 2021; Shweder
2022b; Duivenbode 2023), including the cutting or removal of part or
all of a child’s healthy clitoral hood or labia, at the request of the parents
(i.e., WHO FGM Types 1a, 2a, or 4). However, although debates about
the merits and demerits of criminalization continue, arguments that such
cutting is ethically permissible for clinicians to perform have had little
uptake; moreover, they have been addressed at length in previous publi-
cations, including by some of the present authors (Earp 2016b, 2022a;
Shahvisi 2016; Weisenberg 2023). Nevertheless, rather than treating the
mainstream ethical consensus view as obvious, much of the present arti-
cle can be read as an (additional) attempt to provide reasons and argu-
ments in support of this view, while also extending it to other cases and
drawing out practical policy implications.
16 For an overview of relevant sex and gender distinctions, see Bauer
(2023); see also Ziemińska (2022) and Cederroth et al. (2024).
17 We note that judgments about “sufficient maturity” to undergo
(female) genital cutting have, in many contexts, been heavily racialized,
with women and girls of color deemed not to have sufficient agency or
maturity in situations where white women and girls are simply assumed
to have these qualities (Conroy 2006; Villani 2009; Dustin 2010; Bader
2016; Boddy 2016, 2020; Florquin and Richard 2020; Abdulcadir et al.
2020; Shahvisi 2023; Townsend 2023b). Although we do not take a
stand on the specific criteria by which “sufficient maturity” (i.e., to
decide about undergoing a medically unnecessary genital procedure)
should be assessed, we do insist that, whatever the appropriate criteria
are, they be applied without such invidious discrimination (see also
Ahmadu 2017).
8 THE BRUSSELS COLLABORATION ON BODILY INTEGRITY
1. the risks, however slight, that would accom-
pany the application of a sharp instrument to
her genitalia or the removal of live tissues
therefrom, in exchange for
2. anticipated benets, whether aesthetic, prophy-
lactic, psychosocial, sexual, cultural-symbolic,
or spiritual-metaphysical that she herself
endorses in light of her known or established
(rather than merely predicted) beliefs, values,
preferences, personal commitments, and sense
of self or identity, and that
3. she seeks to attain through genital cutting spe-
cically (as opposed to various other possible
means of pursuing such purported or intended
benets).
Unless it is medically necessary, that is, any cutting
or surgery carried out by a clinician on the external
genitalia of a child deemed to have female-typical sex
traits is regarded as categorically unethical.18
Accordingly, there seems to be a powerful expectation
in Western societies that endosex girls have a right
not merely to be consulted about, or involved in, so
intimate and irreversible a decision as to whether
their sexual organs will be cut or altered, but also to
be allowed—barring a relevant physical health emer-
gency—to autonomously consider and accept or refuse
such a personally significant procedure.
We argue this expectation is reasonable. Accordingly,
we suggest, the corresponding strict prohibition on
clinicians performing medically unnecessary genital
cutting or surgery in this population is justified, par-
ticularly in terms of hospital policies and professional
codes of conduct. However, we go further to suggest
that this moral-cum-professional prohibition ought
not be applied in a discriminatory manner, that is,
only with respect to procedures performed on endo-
sex females. Rather, it must equally cover children
born with intersex traits, whether categorized as
female or male at birth, as well as children born with-
out such traits who are categorized as male.
To illuminate these points, we will now examine in
detail the two aforementioned hospital-level policy
changes regarding intersex surgeries in the United
States. In doing so, we go beyond previous work to
18 In the United States, as mentioned, it is also a federal crime and a
felony irrespective of parental motivation or anticipated harm level (see
STOP FGM Act of 2020), with comparable legal prohibitions in many
other countries (see, e.g., Hatem-Gantzer 2023). As demonstrated by
the recent U.S. case concerning a Muslim physician accused of ritual
“pricking” (or similar) in a clinical setting for explicitly religious rea-
sons (i.e., the Nagarwala case), physicians who engage in such inter-
ventions are liable to lose their licenses, and may be subject to arrest
and criminal prosecution (Bootwala 2023).
Box 1. Why are some body parts but not others
widely considered “intimate” or “private”?
Material in this box is adapted and expanded from Earp and Bruce
(2023) and Buckler, Bruce, and Earp (2023).
As philosopher Talia Mae Bettcher argues, there are nonarbitrary
reasons why grabbing someone’s genitals without their consent,
versus grabbing, for example, their hand or shoulder without their
consent, is usually a more serious wrong. She argues there is a
distinctive violation involved in the former that is not usually
involved in the latter. This violation has to do with the relationship
between (a) selective, voluntary exposure of our genitals (or other
putatively “private” body parts, such as breasts or anus) under
certain circumscribed conditions (usually based on a personal
decision to “open ourselves up” to others’ engagement with those
normally hidden body parts), and (b) the very possibility of certain
kinds of human intimacy (Bettcher 2023). As she writes:
Intrinsic intimacy [is] made possible by the existence of [certain
personal] boundaries. Without them, there would merely be
unselective, unfettered sensory and informational access to one
other. Further, intrinsic intimacy is made possible by the stan-
dard observation of boundaries. Without the default of interper-
sonal distance, intimacy could not be possible. Specically, the
capacity for [voluntary] self-display would be undermined, and
with that, the capacity to exert intimate agency over closeness
and distance would be undermined. (6)
Why it is that a “default interpersonal distance” has been
socially constructed around the genitals, in particular, in many
societies (i.e., more so than virtually all other body parts) is an
important question to which we will turn in a later section.
However, for present purposes, it is enough to note that, for
whatever reason, the genitals are so constructed—and this imbues
them with special social signicance. And yet, “medical practice
cannot abstract itself from the culture in which it operates; thus
we have [for example] the practice of requiring chaperones when
male doctors perform pelvic exams [and] other ways in which the
medical establishment acknowledges the special status and
concerns that attach to the [sexual or] reproductive parts of our
bodies” (Davis 2003b, 194).
As Bettcher concedes, when clinicians gain intimate access to
our bodies for medical purposes, “the pursuit of intimacy is not the
aim.” Rather, “health is, and the traversal of sensory boundaries
may be necessary for medical purposes” (Bettcher 2023, 6,
emphasis added). If it is not necessary, however—and we also
have not consented—the background conditions for appropriate
traversal have not been met: our boundaries have been violated.
This is to say that the very boundaries that make certain forms of
intimacy possible in our lives, including sexual intimacy with
chosen partners, are disrespected by such unconsented traversals.
Thus, as Marit van der Pijl and colleagues have recently argued, “the
social meaning of these body parts leaves a very small margin for error
[in a medical context] because invasion of these body parts without
consent is an, unfortunately, relatively widespread and well-known
social phenomenon with [a] degrading, humiliating and dehumanizing
meaning. The medical setting cannot fully escape this connotation
[which] means that extra care is needed to ensure one only touches
and invades these body parts with consent [outside of medical
emergencies]” (van der Pijl et al. 2023, 614).
Of course, very young children, including infants, do not (yet)
have the capacity to voluntarily “open themselves up” to others’
engagement with their sexual organs, whether in a medical
context or otherwise; nor do they (yet) have a sense of their
genitalia as “intimate” anatomy: that is, anatomy with respect to
which they will one day have, or be able to exercise, an especially
strong right to set and maintain certain personal boundaries.
However, with time and socialization, most will come to acquire
such a capacity and sense. If they learn, therefore, that prior to
their ability to exercise this essential boundary-setting right, their
“intimate” anatomy was already cut or altered for reasons other
than medical necessity, they may reasonably come to conclude
that (what should have been) an exceptionally personal choice
about their sexual embodiment has been usurped. See the section
“Private Anatomy, Personal Choice” for further discussion.
THE AMERICAN JOURNAL OF BIOETHICS 9
highlight significant problems not only with the status
quo, but also with morally incoherent attempts at
reform. Given these problems, and what we see as the
most ethically principled way of resolving them, we
argue for a paradigm shift in the medical treatment of
children’s bodies, particularly with respect to cutting
or surgery into their genital, sexual, or reproductive
organs (i.e., “intimate” anatomy; see Box 1).
The paradigm shift, briefly stated, is this: Instead of
drawing lines of moral permissibility or impermissibility
around (a) subjective, vague, contestable, and often cul-
turally biased19 third-party assessments of expected lev-
els of net harm or benefit (i.e., utility calculations), or
around (b) the assigned or assumed sex- or gender-class
membership of an infant or child based on their con-
genital bodily features, the medical ethics of nonvolun-
tary genital cutting or surgery in prepubescent minors
should, we suggest, turn exclusively on considerations of
medical necessity as defined and elaborated below (see
“Physical Versus Mental Health and Medical Necessity”).
Simply put, if the proposed cutting or surgery is
medically necessary, it may permissibly be performed
by a licensed clinician on a child who lacks
decision-making capacity if there is valid parental per-
mission (Council on Ethical and Judicial Affairs
2019).20 If the same surgery is medically unnecessary,
however, it is not permissible for clinicians to perform
it, even if it is requested in good faith by the child’s
parents with the belief it will improve the child’s life
(e.g., by potentially reducing the likelihood of future
teasing or other possible social mistreatment).
See Figure 1 for a schematic representation of our
proposal. Note that this proposal concerns specifically
genital-related cutting or surgery by healthcare provid-
ers operating within their professional capacity; it is
not intended to apply to all possible interventions into
a person’s body that might take place in a healthcare
context (or elsewhere). We justify this special focus
below, drawing in part on considerations we have
already spelled out in Box 1.
In the next section, we zoom in to describe the
two aforementioned hospital pledges to stop perform-
ing some intersex surgeries and try to clarify the
underlying moral reasons behind the pledges. We
argue that these reasons have more to do with pre-
serving certain intimate personal choices or (future)
sexual boundary-setting abilities than with medical or
nonmedical benefit–risk assessments carried out
19 See, e.g., Davis (2003a); Van Howe (2011); Frisch et al. (2013); Earp
and Shaw (2017). See also Godwin (2021).
20 Determining the right set of requirements for a valid parental per-
mission in these circumstances (sometimes called parental “proxy” con-
sent, although this is controversial) is outside the scope of this article.
prospectively by third parties such as clinicians or
parents. We argue that these reasons are sound.
We then explain why this reasoning should not be
applied in a selective or discriminatory manner only to
some children—that is, those with certain specific gen-
ital anatomies—but rather to all children, representing
the full diversity of human genital anatomies. In addi-
tion to the children characterized as “intersex” by the
hospital pledges, we include children with conditions
such as hypospadias who are not explicitly covered by
the pledges, as well as children who, at birth, do not
appear to have any sex-developmental differences,
whether they are categorized as female or male.21
TWO RECENT PLEDGES
In July 2020, following a three-year campaign against
the hospital led by intersex activists Pidgeon Pagonis
and Sean Saifa Wall,22 Lurie Children’s Hospital of
Chicago announced that it had voluntarily stopped
performing some—but not all—“medically unneces-
sary” surgeries on children born with intersex traits
(Neus 2020). There is disagreement about which spe-
cific bodily configurations should fall under the
“intersex” umbrella (Liao and Baratz 2022), and some
may choose to avoid this term altogether due to its
complex political associations. However, whatever they
are called, the traits in question are unified by their
perceived incongruity with one or more normative
criteria for classifying persons, based on their inborn
sex characteristics (e.g., chromosomes, gonads, hor-
mone receptors, or external genital morphology), as
being exclusively or typically either female or male
(Monro et al. 2021; Kraus 2015). According to the
hospital statement, feedback and testimonials from
members of the intersex community had caused them
to reflect critically on historical standards of care,
including the underlying sociocultural motivations for
performing early genital surgeries on this population:
We recognize the painful history and complex emotions
associated with intersex surgery and how, for many
years, the medical eld has failed these children.
Historically care for individuals with intersex traits
included an emphasis on early genital surgery to make
21 Some children who are reflexively classified as either female or male
at birth based on their external genital morphology nevertheless dis-
cover later in life, sometimes due to bodily changes associated with
puberty, or as a result of seeking medical care for an unexplained
health issue, that they do in fact have one or more differences of sex
development or intersex traits, whether in terms of chromosomes, hor-
monal function, or internal reproductive characteristics (Cabral
Grinspan and Carpenter 2018; Conway 2023).
22 Co-founders of the Intersex Justice Project: https://www.
intersexjusticeproject.org.
10 THE BRUSSELS COLLABORATION ON BODILY INTEGRITY
genitalia appear more typically male or female. As the
medical eld has advanced, and understanding has
grown, we now know this approach was harmful and
wrong. We empathize with intersex individuals who
were harmed by the treatment that they received
according to the historic standard of care and we apol-
ogize and are truly sorry. (LCH 2020, n.p.)
We expect that this statement will be seen as a
watershed moment for intersex rights in the U.S.
context, and to some extent around the world (see
Box 2 for international developments). Public recog-
nition by a major healthcare institution of its
history of medicalized harm and wrongdoing is rare
and takes extraordinary courage. This should not be
understated. Now, the hospital website affirms that
“irreversible genital procedures” in children with
intersex traits “should not be performed until patients
can participate meaningfully in making the decision
for themselves, unless medically necessary” (LCH
2020).
Figure 1. An illustrative model for determining the permissibility of genital cutting or surgery in a medical con-
text; adapted with permission, along with this gure description, from Earp, Abdulcadir, and Liao (2023). The model is based on
widely accepted standards in contemporary medical, pediatric, and sexual ethics and codes of professional conduct, although it
may not reect a universal consensus. Interventions into nongenital (or sexual/reproductive) areas of the body may not t this
model. The gray section represents maximal uncertainty: cases in which neither medical necessity nor consent status is clear. Note:
Moral permissibility or impermissibility does not necessarily entail legal permissibility or impermissibility.
THE AMERICAN JOURNAL OF BIOETHICS 11
Boston Children’s Hospital soon followed suit
(Luthra 2020). In October 2020, a media spokesperson
stated that clinicians associated with the hospital “will
not perform clitoroplasty or vaginoplasty in patients
who are too young to participate in a meaningful dis-
cussion of the implications of these surgeries, unless
anatomical differences threaten the physical health of
the child” (ibid., n.p.). Finally, as of July 2021, it was
reported that New York City Health & Hospitals, “the
largest public healthcare system in the United States,
has [also] instituted a policy to defer all medically
unnecessary surgeries on intersex children” (Knight
2021, n.p.).23
We congratulate the medical staff and hospital
administrators who authorized these important
changes, in response to years of impassioned advocacy
by intersex people and their allies. We also urge that
parents be thoughtfully included in these change
efforts by being provided with education and support.
Clearly, it will not be enough simply to prohibit cer-
tain surgeries without putting substantial resources
toward other modes of care, including individual and
family-based psychological counseling, while also
ensuring that these resources are equitably accessible
and can effectively be used (Liao 2022). Even so, we
suggest that, in order to fully appreciate the implica-
tions of this historical moment, further reflection and
analysis are required.
For example, how the statements are being trans-
lated into practice is not clear. Both Lurie and Boston
Children’s hospitals invoke the notion of “meaningful
participation” in discussions about potential genital
surgeries by the persons whose bodies would be
affected. However, it is one thing for an individual to
“participate meaningfully” in a decision about whether
to undergo a surgery; it is another for that individual
actually to agree or assent to—much less validly con-
sent to—the permanent alteration of their own geni-
tals. Which of these levels of participation do the
hospitals mean to invoke (Waligora, Dranseika, and
Piasecki 2014)?
There are also some hedges and omissions in the
pledges. For example, the Lurie statement singles out
children with congenital adrenal hyperplasia (CAH) as
23 According to the intersex advocacy group interACT, the updated pol-
icy of New York City Health & Hospitals (NYC H + H) states: “All
medically unnecessary surgery on Intersex [children] should be delayed
until the child is of an age to assent/consent (adolescence). If parents
are requesting such surgery, the rights of the child to be protected
from harm should take precedence over the demands of parents for
intervention. … Therefore, NYC H + H hospitals should respect the
child’s increasing decision-making authority and moral understanding
and not perform any medically premature procedures” (Brown-King
2021, n.p.).
a “potentially separate patient population,”24 and none
of the hospital statements mentions children with
hypospadias. CAH is an adrenal condition that can
affect the size and shape of the genital shaft or glans
(Dalke and Baratz 2021), and hypospadias is an ana-
tomical variation in which the urethra opens below
the tip of the glans along the ventral side of the organ
(when it opens on the top or dorsal side, this is
known as epispadias) (Wood and Wilcox 2022; CDC
2019). Together, hypospadias and CAH make up the
vast majority of sex-development variations for which
the surgeries in question are currently pursued:
namely, surgeries whose primary aim is to render the
child’s body more “typically” male or female in func-
tion or appearance, even when there are no urgent
physical health concerns that require such surgical
treatment (Blackless et al. 2000; Klöppel 2016).
Moreover, it is not clear whether the hospitals have
only external genitalia in mind, or whether internal
genital organs such as gonads are also to be covered
by the updated policies (for discussion, see
Pagonis 2017).
These uncertainties and ambiguities, we suggest,
leave room for ethically questionable genital modifi-
cation procedures on children to continue. Such pro-
cedures may include “feminizing” surgeries (e.g.,
clitoral reduction) on children with CAH raised as
girls, surgeries to release chordee or reposition the
urethral opening in children with hypospadias
(including in rare cases, 46,XX children with CAH
raised as boys; Lee and Houk 2010; Kraus 2017), sur-
geries to remove nonmalignant internal genital parts
from children whose bodily differences do not pose a
serious or time-sensitive threat to their “physical
health” (as per the language of the Boston statement)
(Cools et al. 2018; Peard et al. 2023; O’Connell et al.
2023; Ho et al. 2024), and surgeries to remove the
healthy genital prepuce (i.e., through routine, nonre-
ligious penile circumcision) from children who may
or may not have any recognized differences of sex
development.
To address these actual and potential loopholes, it is
necessary to get a firmer grip on what is normatively at
24 The statement reads: “For patients with CAH, many of whom do not
consider themselves under the intersex umbrella, the question of early
surgery requires immediate and critical evaluation, as there remain
unanswered questions about best practices, ethics and how to optimize
medical outcomes. For the overwhelming majority of these CAH
patients, surgery plays no role in the management of their medical
condition. When it comes to surgery, we are committed to reexamining
our approach. [However, until our] practices [are thoroughly]
re-evaluated, we will not perform any surgical procedures on children
with CAH outside of those deemed medically necessary” (LCH 2020,
n.p.). Given this stance, we hope that our article can contribute con-
structively to the process of reevaluation.
12 THE BRUSSELS COLLABORATION ON BODILY INTEGRITY
stake across all such cases. In particular, as noted, we
need to understand exactly when and why it is (in)con-
sistent with medical ethics for a healthcare provider to
operate on a child’s genitals, whatever the child’s sex
characteristics may be. We flesh out this account in the
following sections. As a part of this, we elucidate the
concepts of “physical health” (mentioned in the Boston
statement) and “medical necessity” (mentioned in the
Lurie statement) and explain their role in furthering chil-
dren’s bodily integrity interests, while also leaving certain
“personal decisions” to the individual to make when they
have the relevant capacities (Fox and Thomson 2017).
PRIVATE ANATOMY, PERSONAL CHOICE
Our position regarding healthcare settings is that all
medically unnecessary, nonvoluntary genital cutting or
surgery, as such, infringes the right of individuals to
set and maintain certain important personal boundar-
ies having to do with their sexual or reproductive
anatomy (see Box 1 for background). They are there-
fore wronged by any such cutting or surgery, regard-
less of the anticipated level of harm or benefit as judged
by an outside party (i.e., someone other than them-
selves). We will begin by expanding on the “personal
boundaries” aspect of this argument, before unpacking
the concepts of physical health and medical necessity.
According to the statement from Lurie Children’s
Hospital, quoted above, “Decisions about if and when
surgery is performed [to alter] the appearance of the
genitalia, are some of the most personal decisions an
individual can make” (LCH 2020, n.p.). We agree with
this—but elaboration is required. This is because the
special status of the genitals in relation to personal
autonomy and sexual boundary-setting is often elided
in debates about child genital cutting or surgery.
For example, defenders of medically unnecessary
genital operations in childhood will sometimes raise
analogies with other interventions (or activities) that
Box 2. Recent developments in the United States and
beyond: an international overview.
Within the United States, the Council on Ethical and Judicial Aairs of
the American Medical Association produced a measured analysis in
2019 that raised various relevant ethical considerations, for example,
“To what extent would the proposed intervention (or lack of
intervention) foreclose important life choices for the adolescent and
adult the child will become? Are there reasonable alternatives that
would address immediate clinical needs while preserving opportunity
to make important future choices?” (6). The Council stopped short of
making a blanket policy recommendation against medically
unnecessary intersex surgeries in children. However, in a press release
coinciding with Intersex Awareness Day (Miller 2023), the U.S.
Department of State under President Biden has taken a clear stand
against such procedures:
Intersex persons often [are] subjected to medically unnecessary
surgeries. These harmful practices, which can cause lifelong
negative physical and emotional consequences, are a medical
form of so-called conversion therapy practices in that they seek
to physically “convert” Intersex children into non-Intersex chil-
dren. We applaud all activists, organizations and governments
working to raise visibility and protect Intersex persons’ rights to
bodily integrity and to ensure equal protection and recognition
before the law.
Meanwhile, outside the United States, national senates, bioethics
committees, and human rights institutions have conducted
numerous inquiries into intersex-related medical practices,
considering evidence from community, clinical, legal, and human
rights stakeholders and releasing various reports and statements
(Swiss National Advisory Commission on Biomedical Ethics 2012;
German Ethics Council 2012; Senate of Australia Community Aairs
References Committee 2013; Council of Europe 2015; Centro de
Derechos Humanos UDP 2016; Sénat—France 2017; Kenya National
Commission on Human Rights 2018; Danisi, Dustin, and Ferreira
2019; Australian Human Rights Commission 2021; Delhi Commission
for Protection of Child Rights 2021). For the most part, these
statements have adopted positions more in line with the U.S. State
Department position quoted earlier.
Since 2009, multiple United Nations Treaty Bodies, including
the Committee on the Rights of the Child, the Committee on the
Rights of Persons with Disabilities, the Human Rights Committee,
and the Committee Against Torture, have likewise issued
recommendations against medically unnecessary, nonvoluntary
intersex genital surgeries (Intersex Rights 2022). Moreover, the
African Commission on Human and Peoples’ Rights (2023), the
Parliamentary Assembly of the Council of Europe (PACE 2017), and
the European Parliament (European Parliament 2019) have passed
resolutions calling on their member states to prohibit
“sex-normalizing” surgeries and other medical treatments on
children with intersex traits, and to respect rights to “bodily
integrity, physical autonomy and self-determination” (African
Commission on Human and Peoples’ Rights, 2023). Finally, on April
4, 2024, the United Nations General Assembly passed a historic
resolution expressing “grave concern” about “medically unnecessary
or deferrable interventions, which may be irreversible, with respect
to sex characteristics, performed without the full, free and informed
consent of the person, and in the case of children without
complying with the provisions of the Convention on the Rights of
the Child” (Human Rights Council 2024).
In 2015, Malta became the rst country to partially outlaw
intersex normalizing surgeries (Maltese Parliament 2015). As of
January 2024, Portugal, Germany, Iceland, Greece, Spain, and a rst
jurisdiction in Australia have passed similar laws (Intersex Greece
2022; Anarte 2021; ILGA-Europe 2018; Jefatura del Estado 2023; ACT
Government 2024). Meanwhile, comparable legislation is under
consideration in other jurisdictions, including in Australia (Victoria
Department of Health 2023) and India (Delhi Commission for
Protection of Child Rights 2021). However, despite these
developments, some advocates for intersex rights have stressed that
the new laws are not being fully enforced: Medically unnecessary,
nonvoluntary intersex genital surgeries have remained pervasive
despite the prohibition in Malta (Costa 2020), and Portugal has
been reprimanded twice by the UN Committee on Civil and Political
Rights for allowing such surgeries to continue (Pereira 2022).
Others have stressed that certain weaknesses, loopholes, and
exceptions (e.g., for hypospadias surgery) remain in the laws that
have so far passed or are currently being considered, and have
called for more thoroughgoing provisions to protect the bodily
integrity rights of persons with intersex traits (Garland and Travis
2018; Bauer, Truer, and Crocetti 2020; Garland et al. 2021; Meoded
Danon, Schweizer, and Thies 2022; Ní Mhuirthile et al. 2022;
Garland and Travis 2023; Rubashkyn and Savelev 2023; DeLaet,
Earp, and Miller 2024).
THE AMERICAN JOURNAL OF BIOETHICS 13
parents routinely authorize without much controversy:
ones that expose the child’s body to some amount of
risk of harm despite not being medically necessary,
which nevertheless are widely seen as permissible in
Western and other countries. For example, they may
mention infant ear-piercing, removal of digits (fingers)
that exceed the expected number per hand, pinning
back of ears that are perceived to “stick out” more
than usual, cosmetic orthodontia, and even certain
contact sports such as ice hockey or American foot-
ball (Holm 2004; Bester 2015; Jacobs and Arora 2015).
However, whatever one thinks of the permissibility of
these various interventions or activities,25 one thing
they do not do is concentrate surgical risk on, nor
deliberately remove living tissue from, the genital, sex-
ual, or reproductive anatomy of a nonconsent-
ing person.
As mentioned previously in Box 1, in many (per-
haps most or all) cultures, the genitals, whether inter-
nal or external, are imbued with a special significance:
They are implicated to a high degree in people’s sense
of privacy, dignity, sexuality, bodily integrity, and
bodily autonomy—that is, their ability to decide how
others may or may not interact with their embodied
selves, irrespective of others’ preferences or desires (or
even others’ judgments about what would be best for
them). This can be seen, for example, in the way that
bodily assault involving the genitals is widely seen as
a far greater violation than a comparable assault
involving other body parts, and all the more so if the
one transgressed upon is a child (Reis, Lopes, and
Osis 2017; Kumar 2017).
Indeed, setting aside acts that are necessary to pre-
serve the physical health of someone who lacks rele-
vant capacities (e.g., diaper changing or help with
washing within certain care-based relationships), even
touching someone’s genitals without their consent may
be humiliating and abusive; depending on the details,
it may constitute the crime of sexual battery. This
includes cases in which the affected individual was
not aware of the touching at the time and only learns
about it later, as well as cases in which the touching
was not necessarily intended to be sexual in nature.26
25 It is not at all clear to us that these interventions should all be con-
sidered permissible. Indeed, several of them seem decidedly problem-
atic. However, we do not have space to give a separate analysis of each
one. Our point is only that even if one sees these practices as permis-
sible, there would still be an ethically relevant disanalogy between
them and medically unnecessary genital cutting of a nonconsenting
individual. Regarding another analogy that is often raised in this con-
text—i.e., vaccination—see the discussions by Darby and Van Howe
(2011) and Lyons (2013).
26 Whether or not touching of the genitals is intended to be sexual in
nature, insofar as it is both nonconsensual and medically unneces-
sary—as has been illustrated by recent decisions of the European Court
One way to understand this concern is in terms of
moral risk:
When it comes to engaging with the sexual anatomy
of someone who is temporarily non-autonomous—
because they are intoxicated, asleep, or a child—there
are two types of error one can make. In the rst type
of error, one fails to engage with the person’s sexual
anatomy when, in fact, the person would have con-
sented to, and even benetted from, the engagement
with their genitalia if they had been able to consent
at the time. ere is some loss here—a “missed
opportunity” to benet the person—but in most sit-
uations, the harm done, if any, is relatively small. In
the second type of error, one engages with a
non-autonomous person’s sexual anatomy, perhaps
believing that this is what the person would consent
to (or benet the most from), when in fact the per-
son would not have consented to the engagement
had they been able to do so. In contrast to the rst
type of error, the potential harms to the individual
associated with the second type of error—for exam-
ple, a feeling of having been sexually violated, or of
having had one’s most important boundaries not
respected—are enormous. us, it is [typically] much
worse, from a moral perspective, to commit the sec-
ond type of error compared to the rst. (Earp 2022b,
307–8)
How might we make sense of these common per-
spectives or attitudes? In contemporary Western soci-
eties, among others, one’s genitalia, along with other
sexual or reproductive features, are regarded as excep-
tionally “personal” in at least two senses. Firstly, the
shape, constitution, and classification of one’s genitalia,
and how one comes to relate to these factors over the
course of development, may be central to one’s iden-
tification in terms of sex, gender, and sexual orienta-
tion, all of which may powerfully shape a person’s
sense of self (Ashley 2022). One cannot know, in early
childhood, how a person will later conceive of them-
selves in terms of these key categories.
Second, in these same Western societies, among
many others, the genitals are culturally associated with
particular environments, activities, and relationships
that are considered to be especially intimate or pri-
vate, and therefore most appropriately governed by
powerful norms of willing participation, personal dis-
cretion, and free choice (Sörensdotter and Siwe 2016;
of Human Rights—it may also be against the law. See the following
decisions of the European Court of Human Rights: Wainwright v UK
(2007) 44 EHRR 40 prison search: touching of minor’s penis (breach
of Art 8 ECHR); YF v Turkey (2004) 39 EHRR 34: nonconsensual
gynecological examination (breach of Art 8 ECHR); Valasinas v
Lithuania (2001) 12 BHRC 266—prison search: handling of adult’s gen-
itals (breach of Art 3 ECHR).
14 THE BRUSSELS COLLABORATION ON BODILY INTEGRITY
Archard 2007, 2022). So, for example, from a young
age, children are taught to regard their genitals as
their “private parts”27—not to be seen or touched by
others except in certain limited situations—unless and
until they are in a position to decide for themselves
when and how this may happen (Edelman 2013;
Sanders 2021; Emote 2023; see also, in relation to
adults, Sörensdotter and Siwe 2016). The same rule,
they are told, applies to others (i.e., they must also
respect others’ bodily and sexual boundaries)
(Babatsikos and Miles 2015).
What about infants and newborns, however? They
will not learn about such “grown up” matters until
later; in the meantime, up to a certain age, they will
not form any consciously retrievable memories of
their experiences,28 including with respect to potential
surgeries that may be carried out on their bodies.
Being entirely reliant on adult caretakers to make
decisions on their behalf, infants and newborns do
not yet have “bodily autonomy” in any meaningful
sense; they cannot set or maintain almost any bound-
aries with respect to their physical embodiment
(Godwin 2020). So, perhaps it does not make sense to
impose a categorical limit on the kinds of actions that
clinicians may permissibly take toward children’s gen-
itals at such a young age.
It is true that newborns and infants do not yet
have a conception of their genitals as being private
anatomy (see Box 1). However, as they are socialized
into early childhood and beyond, they will inevitably
come to associate this part of their body (but not, for
instance, their earlobes) with the aforementioned con-
cepts: privacy, intimacy, sexuality, personal identity,
and a powerful presumption of individual discretion
or choice. If, therefore, they come to reflect on the
fact that their genitals were already subject to a non-
voluntary yet medically unnecessary surgery, they may
feel, as many affected persons do feel, that a signifi-
cant violation has occurred (for examples and discus-
sion, see Morland 2008, 2009; Watson 2014; Davis
2015; Hammond and Carmack 2017; Berg etal. 2017;
Earp and Darby 2017; Jordal, Griffin, and Sigurjonsson
2019; Bastien-Charlebois 2020; Pagonis 2023; Uberoi
et al. 2023).
27 However see, for example, Burrows etal. (2017) on the need for chil-
dren to learn anatomically correct terms for their sexual anatomy (e.g.,
for purposes of reporting sexual abuse).
28 Note that early experiences of pain and trauma are nevertheless reg-
istered by the brain, even if not in the form of consciously retrievable
memories, risking long-term adverse implications for neurodevelop-
ment as well as psychological health and well-being, possibly into
adulthood (Taddio and Katz 2005; Grunau, Holsti, and Peters 2006;
AAP 2016; Walker 2019; for a general discussion, see Tye and
Sardi 2023).
In their memoir, Pidgeon Pagonis, one of the inter-
sex campaigners who challenged Lurie Children’s
Hospital to change its policy, connects such feelings to
a subsequent aversion toward certain forms of inti-
macy. When a partner tried to touch Pagonis sexually,
“I wanted to cry and scream and run away, but instead
I froze. I’d learned early on, in the days after surgery,
[that] my body was not my own. It didn’t belong to
me. It belonged to everyone else. It belonged to the
people who could ‘fix’ it, to the people who wanted to
study it, to the people who would use it” (Pagonis
2023, 87). Similarly, Janik Bastien-Charlebois, an inter-
sex woman and professor of sociology, writes of her
own experiences with early-childhood medical
interventions:
I did not have a word for that kind of sexual [viola-
tion], nor could I ever envision it applying to such a
context, having been raised to see doctors as benevo-
lent professionals whom I must trust, and who have
a right of access to my body. is dispossession pro-
cess is insidious. We are told our bodies belong to
ourselves in some awareness-raising classes at school
or by parents, except experience oen imprints
another message … that our bodies belong to medi-
cine, and that doctors have the nal authority to
judge of its worth. (Bastien-Charlebois 2020, n.p.)
In response to this or similar testimony, those who
defend the performance of nonvoluntary genital sur-
geries even in the absence of a serious and
time-sensitive physical health need are likely to grant
that an unknown proportion of affected persons could,
like Pagonis and Bastien-Charlebois, go on to feel
harmed, or even sexually violated (for background,
see Buckler 2024), by what was done to their bodies
before they could consent. However, this does not
typically lead such defenders to concede that the sur-
geries should therefore be discontinued. Instead, they
may suggest that any negative feelings associated with
the performance of such surgeries must be balanced
against the possibility that negative feelings could also
result from a lack of surgery in certain cases. For
example, as a peer reviewer on an earlier version of
this article suggested, “if one accepts that the genitalia
are ‘involved to a high degree in people’s sense of pri-
vacy and sexuality,’ then withholding surgery may also
be considered an involuntarily imposed decision asso-
ciated with harm” (emphasis added).
This argument, however, has several weaknesses.
First, it seems to imply a moral or practical equiva-
lency between the two types of harm alluded to ear-
lier: that is, the harms associated with the two types of
“error”—namely, of omission or commission—one can
THE AMERICAN JOURNAL OF BIOETHICS 15
make in relation to another’s intimate anatomy.
However, the harms are not equivalent. On the one
hand, there are the harms of having had one’s sexual
embodiment nonvoluntarily intruded upon while in a
highly vulnerable state, exposed to surgical risk and
pain, and permanently altered without one’s consent.
These are, on most accounts, paradigmatic harms, and
ones that are widely considered to be especially seri-
ous. On the other hand, there is the hypothetical harm
of being left to grow up with one’s genitals intact;
being thus spared surgical risk and pain (unless one
personally judges these are “worth” a desired end, hav-
ing considered all relevant alternatives); being offered
noninvasive psychosocial support if necessary (e.g., in
response to possible mistreatment by others); and, if
all else fails, still having the option of surgery left open
to one to pursue on a voluntary basis (see Grimstad
et al. 2023). As it seems to us, there is no comparison.
Second, however, even if the harms could be mean-
ingfully compared, there is no empirical evidence to
support the claim that net harm actually is caused by
“withholding” nonvoluntary genital surgeries in the
absence of a physical health emergency while preserv-
ing the choice to undergo a similar surgery later in
life. By contrast, there is abundant evidence that non-
voluntary surgeries have themselves caused harm to
many people, both intersex and endosex: not only
physically (e.g., due to surgical complications), but
also to self and sexuality, often with the nonvoluntary
status of such procedures playing a significant role in
shaping these experiences of harm (see “Most Don’t
Complain,” below).
Finally, even if a person did feel harmed by a lack
of medically unnecessary genital surgery in early
childhood (i.e., an error of omission), that person
would, as noted, still have voluntary surgery available
to them as an option. Although it is true that such a
person could not go back in time to undergo the
desired surgery while still in childhood (see Box 3 for
details), their primary concern about the unmodified
state of their body could at least potentially be reme-
died. By contrast, if a person felt harmed by having
had such a surgery imposed on them without their
consent (i.e., an error of commission), that person
would have no comparable remedy for their com-
plaint. Thus, the two situations are not equivalent:
either in terms of the type or magnitude of the poten-
tial harms that might be caused by withholding versus
performing a nonconsensual genital surgery, or in
terms of the potential means of addressing those
harms (or associated moral complaints) should
they occur.
Accordingly, we believe the concept of a “right in
trust” should be given significant weight here:
Clinicians, parents, and others with caretaking respon-
sibilities toward infants and children have an obliga-
tion to hold certain rights in trust for the child to
exercise when they have reached a certain stage of
maturity, rather than undermine those rights in
advance (Feinberg 2014; Lotz 2006; Darby 2013). We
propose that the right to make certain intimate deci-
sions about one’s own genitalia, sexed embodiment,
or sexual or reproductive anatomy—especially in the
case of irreversible surgical interventions that are not
strictly medically necessary—is among the most
important rights a person has. In the case of chil-
dren, therefore, this right to genital autonomy must
be held in trust until they can exercise it themselves
(Meddings and Wisdom 2017; Munzer 2018; Earp
and Steinfeld 2018; Garland and Travis 2020b).29
The implications of this claim for healthcare ethics
should be clear. In a previous article by members of this
group (BCBI 2019), we observed that any medical pro-
fessional who even handles the genitals of a child or
other nonconsenting person when doing so is not
strictly required for adequately evidence-based screen-
ing, diagnosis, or treatment thereby crosses a boundary
and behaves unethically, irrespective of stated intentions
(on the related issue of “unconsented intimate exams,”
see, Friesen 2018; Bruce 2020; Hendricks and Seybold
2022; Tillman 2018, 2023; Friesen et al. 2022). For the
same reasons, it is likewise unethical—if not more so—
to actually cut into, remove tissue from, or otherwise
permanently alter a child’s genitals when doing so is not
similarly medically required.
29 For an alternative argument based around the right to bodily integ-
rity—which is not an autonomy-based right and is therefore applicable
to persons while they are still in childhood—see the following refer-
ences: Fox and Thomson (2017), Townsend (2020, 2023a, 2023b), and
Chambers (2022). This is relevant to the case of children or other per-
sons who are unlikely ever to be sufficiently autonomous to be able to
provide informed consent to the permanent alteration of their own
genitals: for example, because of a long-lasting, autonomy-undermining
cognitive difference.
Box 3. Apples to oranges?
Responding to the argument that “early” versus “delayed” genital
surgeries are not medically equivalent options. Some phrases in this
box are adapted from Earp (2022b, 306). See also Meyers and Earp
(2020).
Proponents of genital autonomy argue that unless there is a
relevant medical emergency (i.e., a serious physical health condition
requiring surgical intervention into a person’s genital, sexual, or
reproductive anatomy while they are incapable of personally
authorizing this), the decision about whether to undergo any form
of genital cutting or surgery should be preserved for individuals to
make for themselves when they are capable of doing so.
16 THE BRUSSELS COLLABORATION ON BODILY INTEGRITY
PHYSICAL VERSUS MENTAL HEALTH AND
MEDICAL NECESSITY
We have so far refrained from giving a precise account
of what we mean by “medical necessity” or specifying
the conditions under which a nonvoluntary genital
operation would fit this description. In this section, we
tackle these issues directly. We will start with a general
definition of medical necessity recently proposed by
the physician-ethicist Dominic Wilkinson (2023):
Medical Necessity: Treatment X is “medically neces-
sary” just if, in the absence of X, patient P will suer
from, or has a high chance of suering from, a sig-
nicant deterioration in health-related wellbeing, or
continuation of a signicantly lower than normal state
of health-related wellbeing. (285)
According to Wilkinson, there are two main ele-
ments to this concept. The first is the emphasis on
need.30 We interpret “need” here as referring to
30 As opposed to talk of medical “benefit,” for example. Strikingly, to
illustrate this point, Wilkinson uses the example of a contested genital
surgery, and one that, moreover, is often performed on a nonvoluntary
basis—namely, nonreligious penile circumcision: “For example,
situations in which it is highly likely that a patient
will fall or remain below a minimally acceptable
threshold of health-related well-being if they do not
receive the intervention in question, accounting for
all relevant alternatives (i.e., there are no other
comparably effective options that are less risky,
more respectful of autonomy, and so on; see Van
Howe and Svoboda 2008; Cocanour 2017). The sec-
ond feature is the medical nature of the need: that
is, the anticipated decrement in well-being must be
“related to a state of poor health” (285) (but see
Davies 2023).
One reason to keep the latter constraint is that cli-
nicians receive specialized training and develop exper-
tise in health-related well-being (paradigmatically, in
relation to diseases of the body), whereas they do not
have expertise in “overall” well-being: for example, in
relation to contested sociocultural practices. It is true
that some clinicians have developed expertise in men-
tal health, which can include concerns beyond the
treatment of physical diseases. However, clinicians
with mental health expertise are generally not among
the ones responsible for performing, or deciding to
perform, nonvoluntary genital operations on children.
Nor is there any evidence, in any case, of a mental
health-related need for such surgeries, as we will soon
explain.
Equipped with Wilkinson’s definition, we can now
ask when, or under what conditions, a nonvoluntary
genital procedure would plausibly fulfill the concept’s
normative requirements. To do this, we unpack the
concept of “physical health” as invoked in the state-
ment from Boston Children’s Hospital (as this will
feature in our set of relevant conditions).
As a reminder, the hospital stated that it will no
longer perform certain genital surgeries without the
input of the affected child “unless anatomical differ-
ences threaten the physical health of the child.” We
agree with this condition but add the following cave-
ats in light of Wilkinson’s proposed definition of med-
ical necessity and the “intimate” nature of the anatomy
in question (from Box 1):
1. the threat to physical health is both serious and
time-sensitive, such that it must be resolved,
prior to the possibility of obtaining personal
consent, through genital surgery specically (i.e.,
circumcision might be regarded as medically necessary in cases of
severe phimosis with recurrent balanitis (narrowing of the foreskin and
repeated inflammation/infection) that is unlikely to resolve without
surgery. However, circumcision would not be medically necessary in
order to reduce the risk of future acquisition of HIV (since this may
be prevented in other ways), or cancer of the foreskin (since the risk
of this occurring is low)” (285).
However, critics of this view might respond that “early” (i.e.,
nonvoluntary) genital surgery and “delayed” (i.e., voluntary) surgery
are not necessarily medically equivalent. For example, it could be
the case that a nonvoluntary genital operation performed in
childhood, compared to a similar, albeit voluntary, operation
performed later (e.g., in adolescence or adulthood), is technically
simpler for the surgeon to perform, or has a lower risk of
complications, a faster healing time, or the like. In such a case,
“delaying” genital cutting or surgery until it could be voluntary
would not, on this view, amount to oering the same operation,
only at a later time, but rather, it would amount to oering a
dierent (e.g., physically riskier) operation. Thus, it might not be as
simple as allowing individuals (who are not facing a relevant
medical emergency as indicated above) to decide for themselves
whether to undergo a given genital operation.
This argument should be carefully examined. First, it assumes
the procedure will happen either way (i.e., either “now” or “later”),
whereas in reality many adults with surgically unmodied
genitalia may choose to keep them that way; and no surgery,
compared to early surgery, is even less medically risky (etc.).
Second, any number of potential surgeries—for example, earlobe
removal or cosmetic labiaplasty—might be less medically risky in
infancy compared to later in life, but it must rst be established
that it is ethical to perform the surgery without the aected
person’s own permission. As the examples just given suggest,
however, it is normally not permissible to surgically remove
healthy body parts from someone who does not, or cannot,
authorize this, irrespective of the relative risk prole that may be
associated with performing the surgery at various dierent times
of life. Third, even if it is the case that the relative risk of some
(but perhaps not other) problems is increased by some amount
in voluntary, compared to nonvoluntary, genital operations, the
dierence in absolute risk between these options is unlikely to
be big enough to deserve decisive ethical weight, whereas the
inability of the person to consent to the latter, compared to the
former, operation is a 100% risk (i.e., it is a certainty) that would
be seen as ethically decisive in most analogous situations. See
Appendix B for further discussion.
THE AMERICAN JOURNAL OF BIOETHICS 17
it is not possible to delay the intervention—or
to substitute a more conservative alternative—
until the individual could consent without put-
ting them at an even greater risk of “signicant
deterioration in health-related well-being”);
2. the surgery in question is among the least
risky, invasive, or harmful of the available treat-
ment options for which there is evidence of
comparable eectiveness (i.e., “accounting for
all relevant alternatives” per our earlier clari-
cation); and
3. the surgery is among the options that will pre-
serve, as far as possible (given the other crite-
ria), the individual’s future ability to make any
personal, preference-sensitive decisions about
their own sexual or reproductive anatomy (i.e.,
given the special considerations laid out in Box
1 and the section “Private Anatomy, Personal
Choice”).
In other words, if a child’s anatomical difference
posed only a weak or distant threat to their health,
such that it would be reasonable to delay any proposed
surgical interventions until they could decide for them-
selves; or if there were other effective options for
addressing the health threat that were less risky or
harmful than genital surgery; or if there were options
that would better preserve the child’s future ability to
make certain decisions about their body as described
earlier, then nonvoluntary genital surgery would still
not be permissible according to the criteria we have
adopted, notwithstanding the posited threat to physi-
cal health.
How, then, should we understand the term “physi-
cal health”? The term is not defined in the Boston
statement. However, it seems to have been intended as
a contrast with something like “psychological” or
“psychosocial” health—we’ll say “mental health” for
simplicity—insofar as nonvoluntary surgeries on chil-
dren with intersex traits have traditionally been
defended on such a basis: that is, with the belief that
they will causally improve the child’s future mental
health, given certain assumptions about their long-term
psychosocial environment, notwithstanding any risks
to physical (or indeed mental) health introduced by
the surgery itself.
Such a defense, however, is problematic, as we
elucidate in Box 4. Analogous arguments regarding
potential future benefits to physical health, albeit
ones that do not rise to the level of medical neces-
sity, such as a reduction in the risk of certain treat-
able infections, are addressed separately in Appendix
B in relation to nonreligious penile circumcision.
Given the concerns spelled out in Box 4, we sug-
gest that for a nonvoluntary genital surgery on a
child to be ethically permissible, it must be necessary
to prevent or alleviate a significant and pressing
threat to physical health (rather than a potential
future threat to physical or mental health). In other
Box 4. Problems with the “mental health” defense of
nonvoluntary genital surgery.
It is uncontroversial that genital surgery, like any surgery, poses
physical risks to a patient’s health (and, we would add, also to
their mental health). Given this, it generally understood that
surgery typically should not be performed, especially on a
nonconsenting individual such as a child, unless the patient’s own
body is posing an even greater physical health risk for which the
surgery in question is among the least harmful of the adequately
eective treatment options available (Hutson 2004).
However, proponents of “early” genital surgeries might argue as
follows: Suppose that performing a genital surgery on a child
whose body is not, in the relevant cases, posing any such physical
health risk, nevertheless served to bolster the child’s eventual
mental health. For example, suppose it increased their genital
self-image or sexual self-condence, or reduced the likelihood that
they will be bullied, teased, or sexually rejected for having
culturally or anatomically nonnormative genitalia. If so, the surgery
could still be justied, on this view, on grounds of “total” health
(i.e., physical plus mental health).
The assumption, then, is that a child whose genitalia are
surgically altered (that is, in an attempt to make them look or
function more like those of a “typical” member of their sex or
gender class—an attempt that is not always successful) will in fact
be better o in terms of mental health than a similarly situated
child with identical genital anatomy who does not undergo such a
surgery.
A further, implicit, assumption is that the postulated increase in
mental health will be suciently great so as to reliably oset, and
indeed outweigh, any combined decreases in physical and mental
health that may be caused by the surgery itself (e.g., due to pain,
bleeding, pigmentary changes, recurrent infection, scarring, keloid
formation, skin bridges, stulas; numbness or hypersensitivity due
to nerve damage; possible loss or diminishment of sexual feeling;
unhappiness about the scarred appearance of one’s genitalia;
frustration about often needing multiple follow-up surgeries and
repairs; persistent shame due to being perceived as unacceptable
and in need of “xing”; resentment about being deprived of an
important personal choice; feelings of violation about having had
one’s sexual anatomy surgically operated on without one’s consent;
and so on).
However, there is not any credible evidence to support the
just-stated assumptions: namely, that such positive mental health
outcomes reliably occur; that if they do occur, they can be causally
attributed to “early” (as opposed to delayed, or no) genital
surgeries; and that, even if so, they are of such a great magnitude
that they can be said to outweigh the various risks, harms, and
other disadvantages of the surgeries, many of which have been
amply documented. Moreover, at least some of these harms, in
contrast to almost all of the postulated benets, can be directly
causally linked to the surgeries themselves.
This is not to suggest that the ethics of nonvoluntary genital
cutting or surgery might one day be determined by simple
appeals to empirical studies attempting, however well or poorly,
to measure or assign weights to long-term physical or
psychological benets versus harms (Reis-Dennis and Reis 2021).
After all, many of the key moral factors we raise, such as the value
of personal choice, are not susceptible to being measured with
scientic instruments. Instead, it is to note that, even if one
believes that postulated mental health benets could somehow
render such operations permissible, such a view lacks empirical
support.
18 THE BRUSSELS COLLABORATION ON BODILY INTEGRITY
words, to fulfill Wilkinson’s (and our) criteria for
being medically necessary, an individual would need
to be suffering from (a) a physical-functional impair-
ment in a relevant biomechanical structure or pro-
cess, where (b) this impairment poses a serious,
time-sensitive threat to the person’s life or long-term
health or well-being (e.g., an anatomical difference
that blocks the passage of urine; recurrent infections
that cannot be more conservatively managed or pre-
vented than by nonvoluntary surgery; a malignant
genital tumor, or the like).
By contrast, in the case of voluntary genital modi-
fications in adolescence or adulthood (i.e., a person-
ally requested operation whose all-things-considered
desirability to the individual is not a matter of specu-
lation), the appropriate ethical standard might well be
more expansive. For example, it might include consid-
erations of potential benefits to mental health, since
the particular psychosocial or identity-related concerns
of the individual will, in such cases, be much more
meaningfully ascertainable, as will the particular risks
or trade-offs the individual is willing to accept in
attempting to address those concerns by whatever
chosen means.
Even so, in the case of nonvoluntary modifica-
tions, it might still be asked why we have focused
so narrowly on serious physical impairments, rather
than mere anatomical differences (i.e., deviations
from population-level statistical norms for various
genital traits or features), or even perceived devia-
tions from widely endorsed heteronormative stan-
dards for genital function or appearance. The
reason for this is that such serious impairments,
but not the other conditions, constitute a subset of
bodily states or configurations for which immediate
surgical intervention without the prior consent of
the affected individual is almost universally recog-
nized as being all-things-considered justified, even
though it concentrates risk on a nonconsenting
person’s “intimate” anatomy (see Box 1). As such,
the individual would have no reasonable basis for
subsequently raising a moral complaint against
those who authorized or performed such a surgery
on them without their permission (i.e., under those
special conditions).31
31 In other words, medical necessity constitutes a kind of justification
for intervening in such cases to which all reasonable people can agree;
it therefore provides sufficient “public reason” for treatment (Van Howe
2013b; Chambers 2018). Under such conditions, the future adult can,
on some views, provide retrospective consent to the intervention
(Clayton 2012; for a related analysis in terms of “anticipated” consent,
see Somerville 2006, 214). An alternative account holds that one can
justify the performance of the surgery by appealing to the strength of
the future autonomy-based interest which the surgery is necessary to
protect. In the case of medically necessary surgeries, to wait until the
Notably, medically unnecessary genital surgeries are
characterized by a different set of features, making
subsequent moral complaints much more reasonable
and justified. In particular, the norms, beliefs, and val-
ues that motivate such surgeries (e.g., contested gen-
der norms, cultural attitudes, or metaphysical beliefs)
are much more susceptible to being changed upon
reflection, following exposure to alternative points of
view. In other words, “assuming a multicultural con-
text with sufficient access to contrary perspectives,
there will typically be greater opportunity for someone
who was pre-autonomously exposed to a medically
unnecessary genital operation to (re)construe the oper-
ation as having been harmful or inappropriate, than
for someone who was exposed to a medically neces-
sary genital operation, all else being equal” (Earp
2021, 4).
So, for example, we reject claims of “functional
impairment” that are premised on heterosexist (or
other oppressive or discriminatory) social norms, such
as the notion that a male should be able to “pee
standing up” in order to be a “real man,” or that a
female should be capable of being vaginally penetrated
by a penis in order to be a “real woman” (Kraus et al.
2008; Behrensen 2013; Orr 2019; Dalke, Baratz, and
Greenberg 2020; Walsh and Einstein 2020; Cannoot
2021; Carpenter 2024). Insofar as a person grows up
to endorse such contested norms, they may, if genital
surgery would be required to achieve them, weigh the
risks and benefits of proceeding in light of their own
values, aesthetic or sexual preferences, tolerance for
different kinds or degrees of risk, and so on, and
decide for themselves.
This ability to decide for oneself is key. As some
of us stated in our previous contribution: “If some-
one is capable of consenting to genital cutting but
declines to do so, no type or degree of expected
benefit,” whether physical or psychosocial, “can
ethically justify the imposition of such cutting. If,
by contrast, a person is not even capable of con-
senting due to a temporary lack of sufficient
autonomy (e.g., an incapacitated adult or a young
child), there are strong moral reasons in the
absence of a relevant medical emergency to wait
child is able to authoritatively waive their own right to bodily integrity
is to postpone treatment in a manner that will itself substantially
restrict their future set of valuable personal choices. As such, providing
the intervention may be necessary for affording the individual a suffi-
cient degree of autonomy in the future, while failing to provide the
intervention may not be. In the case of a medically unnecessary sur-
gery, by contrast, it is much less plausible that such an irreversible
intervention would better protect the child’s future interest in genital
autonomy than would the failure to provide it. See Pugh (2020, 2023).
For a response to Pugh, see Mazor (2024).
THE AMERICAN JOURNAL OF BIOETHICS 19
until the person acquires the capacity to make their
own decision” (BCBI, 2019, 18).
Accordingly, we maintain that certain sensitive,
permanent choices about one’s own sexual embodi-
ment, including how one’s genitals should look or
function, ought to be left to the individual to make
on a voluntary basis: that is, when they have—among
other things—a more stable sense of their long-term
preferences, values, or sociocultural environment,
which may be very different from the one(s) into
which they were born or with which they were raised.
We argue that, at least in societies whose ethical and
legal traditions position bodily integrity, personal
autonomy, consent, respect for sexual boundaries, and
nondiscrimination on the basis of sex as foundational
values, nonvoluntary genital cutting that is not medi-
cally necessary is wrong for clinicians to perform as a
matter of principle (Möller 2020; BCBI 2019; Alston
etal. 2017; Carpenter 2021; Frisch 2002; Buckler 2022;
Catalan and Emilova 2023).
WHO DESERVES PROTECTION?
The preceding arguments against medically unneces-
sary, nonvoluntary genital cutting or surgery apply to
children irrespective of their sex characteristics or
gender. As is increasingly recognized, children with
intersex traits due to diverse sexual development
(Lampalzer, Briken, and Schweizer 2020) have a pow-
erful interest in having decisions about such modifica-
tions preserved for them to make when they are older
(Feder 2014). This principle is clearly articulated in
the statements from Lurie and Boston Children’s hos-
pitals quoted earlier. Likewise, children who are not
intersex, that is, children whose features are deemed
to fall more clearly within normative standards for
“binary” female or male bodies—namely, endosex
females or males (Carpenter, Dalke, and Earp 2023)—
also have such a powerful interest.
In prior sections, we noted that when it comes to
endosex female children, it is hospital policy—not
only in the United States, but in many hospitals
worldwide—that no cutting of a person’s vulva should
occur, however slight, unless it is (at least) voluntary
or medically necessary. Failure to comply with this
rule is, as noted, also unlawful in many countries.
Special statutes in numerous jurisdictions explicitly
ban such cutting as “female genital mutilation” whether
or not it is done by a specialist surgeon (Garcia et al.
2022). According to a 2017 statement from the
American College of Obstetricians and Gynecologists,
surgery of the vulva, including labiaplasty, in girls
younger than 18 years should be restricted to situa-
tions in which serious or persistent symptoms are
caused “directly” by vulval anatomy. Otherwise,
Physicians should be aware that surgical alteration of
the labia that is not necessary to the health of the ado-
lescent, who is younger than 18 years, is a violation of
federal criminal law [i.e., the law prohibiting “FGM”].
At least half of the states also have laws criminalizing
labiaplasty under certain circumstances, and some of
these laws apply to minors and adults. (ACOG 2017,
2, emphasis added)
Moreover, in some legal contexts, medically unnec-
essary cutting of the vulva may also be interpreted as
constituting criminal assault, even if no tissue is
removed, the clitoral glans is not affected, and the
procedure is performed, as noted, for explicitly reli-
gious reasons at the request of the child’s parents
(Hayter 1984; Bronitt 1998; Atkinson and Geisler
2019; Earp 2022a; see also Sheldon and Wilkinson
1998).32
These striking considerations about endosex
female genital cutting were the focus of our previous
article (BCBI 2019). In the present context, what
they help to reveal is a significant inconsistency in
the updated policies of Lurie and Boston Children’s
hospitals. Although both hospitals now recognize
that children with certain intersex traits, alongside
those with anatomically normative vulvas, should not
have their genitals operated on in healthcare settings
for social, cultural, religious, aesthetic, or any other
reasons apart from strict medical necessity, their
respective websites reveal that these same hospitals
continue to perform both routine (i.e., nonreligious)
penile circumcisions (LCH 2022b; BCH 2022a) and
medically unnecessary surgeries for hypospadias33
(LCH 2022a; BCH 2022b) on a nonvoluntary basis.
Moreover, neither hospital explicitly rules out the
performance of medically unnecessary “internal”
genital surgeries (e.g., prophylactic gonadectomies in
32 As for endosex male children, it should be noted that legal scholars
have argued since the 1980s (Somerville 1980; Brigman 1984; Price
1997; Van Howe et al. 1999; Boyle et al. 2000), and with increasing
force in recent years (Somerville 2000; Adler 2012; Merkel and Putzke
2013; Svoboda, Adler, and Van Howe 2016; 2019; Lenta and Poltera
2020; Adler et al. 2020), that medically unnecessary, nonvoluntary cut-
ting of the penis—including its prepuce or foreskin as in the case of
circumcision; see Appendix B—is likewise interpretable as criminal
assault, with parental “proxy” consent or permission argued to be legally
invalid (see, e.g., Svoboda, Van Howe, and Dwyer 2000). Yet such cut-
ting is not currently treated as illegal in virtually any jurisdiction
(Geisheker 2013; Sandland 2019). For a recent analysis, see Brown (2023).
33 For further discussion of hypospadias and the lack of medical need
(according to the conception employed in this article) for nonvoluntary
surgery in many cases, see Kessler (1998); Kraus (2013); Carmack,
Notini, and Earp (2016); see also Roen and Hegarty (2018). For a con-
trary perspective, see Wirmer et al. (2023); see also the replies.
20 THE BRUSSELS COLLABORATION ON BODILY INTEGRITY
situations where retention of the gonads is unlikely
to seriously endanger the child’s health before they
can meaningfully participate in any associated deci-
sions; see Cools et al., 2018; O’Connell et al. 2023;
Peard et al. 2023; Ho et al., 2024).
To see the inconsistencies here, consider the hypo-
thetical case of a child born with a genital morphol-
ogy that might plausibly be regarded either as an
unusually small penis or an unusually large clitoris,
due to a difference of sex development (Kessler 1990;
Lee and Houk 2010; Lee, Houk, and Husmann 2010;
Kraus 2017). Under the new Lurie Children’s Hospital
policy, if the child is deemed “intersex,” it seems they
should be protected from medically unnecessary surgi-
cal operations, including the needless repositioning of
their urethral opening, or the excision of their healthy
genital prepuce (foreskin). As the policy states, “irre-
versible genital procedures [on intersex individuals]
should not be performed until patients can participate
meaningfully in making the decision for themselves,
unless medically necessary.”
But now suppose the child is deemed to be a boy,
albeit one with a smaller-than-average penis. Does he
suddenly become eligible, under the hospital’s new
policy, for the very same medically unnecessary pro-
cedures, that is, “cosmetic” surgery for hypospadias or
nontherapeutic penile circumcision? At present, it
would seem so. But this is problematic: Simply being
recategorized in this way should not cause him to lose
his interest, explicitly recognized under the new hos-
pital policy, in “participating meaningfully” in so per-
sonal a decision as to whether his own genitals should
be cut, much less permanently modified.
The same, of course, would be true if the child
were deemed to be a girl, whether or not she has
CAH. To put it differently: The shape of one’s geni-
talia, or how one is socially or legally categorized on
that basis, is morally irrelevant to whether one
deserves to be protected from medically unneces-
sary, nonvoluntary genital cutting or surgery. Rather,
all children, irrespective of their sex characteristics,
have a powerful right-in-trust to at least participate
in such intimate decisions when they are able to
verbalize their preferences and advocate on their
own behalf.
To reiterate, this powerful interest does not primar-
ily depend on the precise degree of anticipated physi-
cal risk (e.g., of surgical complications) associated
with any particular procedure. Both ethically and for
purposes of health policy, it is possible and often
desirable to position certain kinds of interventions as
being entirely “off the table”—even if they could in
principle be done relatively safely or in a de minimis
fashion.34 We suggest that nonvoluntary genital cutting
or surgery that is not medically necessary should like-
wise be “off the table” for healthcare providers, irre-
spective of their patient’s sexual anatomy (Bewley,
Creighton, and Momoh 2010; for a related discussion,
see Chambers 2004).
“MOST DON’T COMPLAIN”
Some have argued that, insofar as most individuals
who have undergone medically unnecessary genital
cutting or surgery in childhood do not seem strongly
opposed to what happened, there is insufficient reason
to change the status quo. For example, Meyer-Bahlburg
(2022) has recently reported (based on a review of 10
different patient surveys)35 that “a clear majority of
patients with somatic intersexuality favors genital sur-
gery before the age of consent, particularly in infancy
or early childhood … these patients have personally
experienced the psychosocial consequences of living
with somatic intersexuality, and most of the survey
participants had undergone one or more genital sur-
geries” (16). From these empirical results,
Meyer-Bahlburg draws the following normative
conclusion:
[is majority] preference for early surgery constitutes
a striking contrast to the human rights-based demands
for surgery delay by ethicists and politicians who usu-
ally do not have that lived experience … us, the
preference of the majority of patients is incompatible
with a legal ban of such surgery before the age of
consent and does also not support a general morato-
rium of early surgery. (16–17, emphasis added)
There are several problems with this line of reason-
ing. First, even if one accepts the empirical premise
34 As Behnke (2006) argues, “Licensing boards and ethics committees—
unlike courts in a malpractice action—do not need to find harm in
order to find a violation, and thereby ‘de-link’ the ethical and the
empirical in relation to specific cases. Such ‘de-linkage’ allows a com-
mittee or board to find a violation apart from finding harm and
thereby provides considerably greater discretion in finding a violation
… such discretion [is] an essential and valuable feature of the ways
boards and committees work, [and] an absolute prohibition [on certain
practices] should not depend upon finding harm in every specific
case” (86).
35 Per the author, “all were published in the English language: three from
the USA; four from European countries; and one each from Brazil,
China, and Malaysia. All 10 surveys were based on samples of clinic
patients, most of whom had previously undergone genital surgery …
Total sample sizes of participants answering questions regarding the tim-
ing of genital surgery ranged from n = 21 to n = 415. Five surveys were
limited to women with XX CAH. One survey included XX women with
CAH and XY women with androgen insensitivity, one other focused on
men and women with various categories of XY intersexuality, two cov-
ered males and females with diverse XX and XY intersex syndromes,
and one dealt with male-raised patients with diverse 46,XY, 46,XY/45,X,
and 46,XX syndromes” (Meyer-Bahlburg 2022, 16).
THE AMERICAN JOURNAL OF BIOETHICS 21
(notwithstanding serious methodological shortcomings
in the surveys purporting to show it, as discussed
below), the conclusion is a non sequitur. This can be
seen by drawing an analogy. Suppose a “clear major-
ity” of British women prior to suffrage had a real or
apparent preference not to be enfranchised, or were
indifferent to the question, as historians argue is plau-
sible.36 As John Stuart Mill (1869) argued more than
a century ago, this would not entail that the women
did not have a justice-based moral right to vote, nor
that the laws that prevented them from doing so
(based on socially reinforced beliefs among those with
more political power about what was in their best
interests) should no