'Progress and Politics in the Intersex Rights Movement: Feminist Theory in Action' by Dreger & April Herndon in (2009) 15(2) GLQ: A Journal of Lesbian & Gay Studies 199-224 considers thinking since Kessler's "foundational" article, one that from the perspective of historical research was weak (citation of Foucault's Hercule Barbin and History of Sexuality is unpersuasive) but highlighted questions of cultural construction. Dreger & Herndon
use the term intersex to refer to variations in congenital sex anatomy that are considered atypical for females or males. The definition of intersex is thus context specific. What counts as an intersex phallus, for example, depends on local standards for penises and clitorises. Similarly ... a person with no obvious sex ambiguity but with 'sex chromosomes' other than simply XX (female-typical) or XY (male-typical) is today considered an intersex person by some intersex advocates, medical researchers, and clinicians, but not by all. Yet such a person could not have been considered intersex before the ability to diagnose 'sex chromosomes'. So the definition of intersex depends on the state of scientific knowledge as well as general cultural beliefs about sex.Reis' 'Perfect or Perverted? Hermaphroditism and homosexuality in nineteenth-century America' in (2008) 8(2) Common-Place thus noted the perplexity of US anatomist Jonathan Neill in 1850 in characterising a deceased person (conveniently destitute and perhaps as conveniently Black):
For this reason, in practice we define a person as intersex if she or he was born with a body that someone decided isn't typical for males or females.
Though the subject dressed in women's clothes, Dr. Neill was not entirely persuaded that she was female. She had large breasts and no hair on her face, two markers that typically would indicate femaleness. But other secondary sex characteristics suggested maleness. Neill wrote that if one looked only at the ratio of the broad shoulders to the narrow hips and also at the shape of the limbs, it would "have indicated the male sex". What were the definitive markers of sex, then? Did large breasts and a smooth face trump narrow hips and broad shoulders?Dreger & Herndon comment that
Delineating intersex ultimately depends on delineating males and females, and when you get into the nitty-gritty of biology, this is not a simple task; nature is messy and often surprising ... That said, there are some forms of intersex that make a person's body obviously different from what is usual — for example, when a child is born otherwise male but without a penis, or when a child is born otherwise female but with a very small vagina and a large clitoris. So when we say that intersex is context specific, we do not mean to imply that these biological variations are not real but that how many variations (and thus people) are included in the category intersex depends on time and place. ... Making things rather confusing to the novice, the medical names for various intersex conditions may refer specifically to the genotype (genetic basis), or to the phenotype (body type), or to the etiology (causal pathway of the condition), or to some combination of these. So saying someone is “intersex” does not tell you anything specific about a person's genes, anatomy, physiology, developmental history, or psychology. Intersex functions as a blanket term for many different biological possibilities — and as we show, many different political possibilities too.One conclusion might be that law accommodates or constrains those possibilities, whether through recognition or through legitimation of surgical or other intervention (eg dress codes) founded on an ideal binary system of male/female identity.
Another might be that it is appropriate to question formulations of intersex as "Disorders of Sex Development" (defined by the 2006 'Consensus Statement on Intersex Disorders' as "congenital conditions in which development of chromosomal, gonadal, or anatomic sex is atypical"). From a legal perspective 'disorder' is not a neutral term. It may imply deficiency or defect, an implication for example that is of concern for theorists who have criticised the tendency of much law to treat women as defective men. Atypicality might not be construed as a disorder, a foundation of a biopolitics in which those with a medical 'problem' are encouraged by law to seek a medical solution to correct that problem and even, as in employer responses to cognitive styles such as ADHD, considered to have forgone protection under discrimination or other law if those people choose not to medicate.
