An Offer You Can't Refuse: Coercing Consent to Surgery through the Medicalization of Gender Identity
![handle is hein.journals/coljgl26 and id is 510 raw text is: 488
COLUMBIA JOURNAL OF GENDER AND LAW
26.2
AN OFFER YOU CAN'T REFUSE: COERCING CONSENT
TO SURGERY THROUGH THE MEDICALIZATION OF
GENDER IDENTITY
ANNE E. SILVER*
Abstract
Can consent to medical treatment be voluntary when legal rights, benefits, and
protections are conditioned on the completion of surgery? This Note will analyze this
question by applying the doctrine ofinformed consent and basic bioethical principles to the
medical model that has emerged as the dominant methodfor determining the legal status
of transgender and intersex individuals. Under the medical model, reclassification of legal
sex-a process that provides access to legal rights, resources, and benefits-is available to
trans persons only after the individual has undergone permanent, body-altering surgery.
This Note will argue that conditioning legal status on the completion ofsurgery coerces or
manipulates consent in such a manner as to render consent involuntary under the doctrine
of informed consent. This Note will suggest alternatives to the medical model that do not
violate the doctrine of informed consent and basic bioethical norms.
INTRODUCTION
The right to bodily integrity is a right deeply ingrained in Western consciousness and
culture.' A fundamental aspect of this right is the ability to make individual decisions about
* J.D. Candidate, 2014, Columbia Law School. I would like to thank Professor Katherine Franke for
providing invaluable advice and guidance in the drafting, revising, and editing of this piece. I also owe a debt
of gratitude to Gretchen Stertz and Andrew Kravis for reading and editing early drafts of this Note, and to the
Columbia Journal of Gender and Law for its support and assistance in the editorial and production process.
Finally, I would like to thank my family for their constant support and encouragement, and particularly my
sister, who inspired this piece.
I See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (holding that due process rights include
the right to bodily integrity); Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972) (describing the root
premise of informed consent doctrine as the concept, fundamental in American jurisprudence, that '[e]very
human being of adult years and sound mind has a right to determine what shall be done with his own body . .
. ') (quoting Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129 (1914)); Olmstead v. United
States, 277 U.S. 438 (1928) (describing the right to be left alone by the government as a comprehensive right
most valued by civilized men); X. and Y. v. Netherlands, 91 Eur. Ct. H.R. 1, 11 (1985) (holding that the right](ViewImageLocal?handle=hein.journals/coljgl26&div=14&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
An Offer You Can't Refuse: Coercing Consent to Surgery through the Medicalization of Gender Identity
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most