ABSTRACT
This chapter investigates whether judicial understanding reflects brain-sex binary theories as a guiding concept of gender identity development in intersex children. An examination of the jurisprudence approving medical interventions on intersex minors suggests that the ‘born this way’ approach does not guide decision-making. The emerging picture is somewhat incoherent but appears to be dominated by optimal gender theory, which has long been superseded in biomedical literature by the DSD model. While the research shows some clinical deference to the DSD model, which aligns with brain-sex binary theories, the cases seem to endorse an ongoing belief that gender identity can be moulded through careful medical management which requires early genital surgeries and sterilisation. The cases show judicial deference to a medicalised perspective. This has led to the adoption of procedures to reduce the adversarial nature of proceedings. These changes have undermined the court's effectiveness as a mechanism for heightened accountability where ethically dubious medical procedures are proposed, which was the rationale for the High Court introducing the ‘special medical jurisdiction’ in Marion's Case. These cases demonstrate the Family Court's failure to protect the human rights of intersex minors.
