USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 62 of 150
recognized for millennia,[1] and courts have been confronted with many intersex-related legal issues.[2]
For many intersex people, biological sex is not determinable at birth. Although intersex people are not the same as LGBTQ people, they face many of the same issues. Many intersex individuals are assigned a particular sex at birth based on the available indicia at the time, live their childhood as that sex, and later discover during adolescence—due to biological changes—that they in fact have the chromosomal or reproductive attributes of the opposite sex. Under the Majority’s conception of male and female based on genital and chromosomal indicia—their biological sex assignment has changed.
Take for instance individuals who have 5-alpha reductase, a condition where the person has XY chromosomes (i.e., “male” chromosomes) and an enzyme deficiency that prevents the body
- ↑ Justinian’s Code, for example, recognized “hermaphrodites” and instructed they should be assigned whichever “sex … predominates.” 1 Enactments of Justinian: The Digest or Pandects, tit. 5 para. 10 (Scott ed. 1932).
- ↑ See, e.g., Zzyym v. Pompeo, 958 F.3d 1014 (10th Cir. 2020) (considering intersex identity on a passport application); M.C. ex rel. Crawford v. Amrhein, 598 F. App’x 143, 149 (4th Cir. 2015) (considering whether sex reassignment surgery in infancy violated a constitutional right to delay medically unnecessary intervention); Thompson v. Lengerich, 798 F. App’x 204, 213 (10th Cir. 2019) (considering equal protection implications for intersex inmates who are guaranteed private showers).
