The Legal Effort to Reduce Gender to Biological Sex
Biological determinism’s ugly history
Update: On May 24, 2019, the Department of Health and Human Services announced its intent to no longer enforce the provisions of the Affordable Care Act (“Obamacare”) that barred discrimination against transgender Americans in healthcare settings. This decision is based on a narrow definition of the term “sex” that excludes sexual orientation and gender identity. Cynically, that announcement framed the decision as an advancement in civil rights…
I’m not sure it’s possible for me to be more alarmed at the New York Times report that the Trump administration is proposing to legally redefine the term “sex” in an effort to reverse Obama-era interpretations laws banning sex discrimination that advanced protections for LGBT people.
Under the proposed new definition, one’s legal sex would be viewed as immutable and determined from birth on the basis of genetics or genitals. That definition is not supported by the science on biological sex nor is it consistent with literally dozens of court cases that employ more nuanced and scientifically-accurate understandings of sex, gender, and sexual orientation.
The obvious target is transgender people and their access to healthcare insurance and services. But the underlying logic of the proposed new definition poses a threat to the civil rights of women, lesbians and gays, those with mental and physical disabilities, and all people of color.
Sex is not binary!
First, a quick primer. Though the words are commonly used interchangeably, for decades scientific and academic experts have distinguished between two different, but related, aspects of the human condition: “sex” and “gender.” (Indeed, the New York Times confused these two terms in its story on the proposed definitional change.) Distinguishing between these two concepts is fundamental to the experience of LGBT people, and understanding the implications of the proposed new definition of sex.
The word “sex” is now used to refer to aspects of the physical body that are commonly used to label a person “female” or “male.” Though genitals and genetics are the most common basis for labeling a person’s sex, Brown University professor emerita of Biology Anne Fausto-Sterling has proposed that sex also encompasses reproductive organs (or “gonads”), hormones, and brain anatomy and function.
In most people, these five aspects of sex are consistent (or “line-up”) in ways that are typical for human sexual development. I call these “female-typical” and “male-typical” people. Although there are many differences within and between these two common types of people, it is clear that human sexual development has a generally binary distribution. Most people are in one of two camps: female or male.
However, not all aspects of sex are consistent within every individual.
Some people have genetics that are different than the typical XX or XY sex chromosomes (like XXY and XO combinations). Others have gonads and genitals that differ in appearance and function from typical patterns of sexual development (for someone with their genetics). Still others have atypical hormone profiles, either during development in the womb or later in life.
Moreover, all bodies combine traits often thought of as solely female or male; we are all the result of combined “female” and “male” geneic material; we all have “female” and “male” hormones (androgens, estrogens) circulating in our blood; until about week six of fetal development, we’re all anatomically indistinguishable (even ‘down there’).
But the term doctors use to describe the most profound variations in sex is “Disorders of Sex Development” or DSDs. (Less-stigmatizing terms are “Differences” or “Divergences in Sex Development.”) The term preferred by those affected is “intersex,” meaning a person born with sexual or reproductive anatomy that does not allow them to be easily labelled “female” or “male.”
DSDs can be caused by unusual combinations of inherited chromosomes, exposure to high levels of androgen hormones in the womb (or insensitivity to androgens), or side-effects of pharmaceutical drugs taken during pregnancy. Some DSDs, like 5-alpha Reductase Syndrome result from recessive genes that are more likely to be expressed in small, isolated populations (like island communities).
Sometimes DSD variations are obvious from birth. Other times, they’re not apparent until the lack of onset of puberty brings a teenager to the attention of a physician who runs the appropriate tests. And, we have to imagine, that many other intersex people escape the notice of healthcare professionals for their entire lives. After all, not all babies are born in a medical context…and most people never have their genetics sequenced or hormones assayed to determine if they all aspects of their biological sex are consistent.
Many biologists now consider intersex people to be just another example of the kinds of developmental variation that are common within the human species. Fausto-Sterling and other scientists have estimated that as much as 2–4% of people are intersex — that’s as many as 280 million people worldwide. The large number of intersex people suggest that the most accurate spatial model to represent human sex diversity might be a barbell or a dog-biscuit: two general groupings on either end and a smaller, but still significant, number of people ‘in between.’ (But even that model fails to capture the true complexity of sex.)
Though thinking of sex as a binary might be familiar and comforting, that model simply isn’t supported by a mountain of scientific evidence showing that human sexual and reproductive anatomy exists along a spectrum. There are some typical patterns, but many, many people exhibit some form of atypical biological sex.
Gender does not equal sex
“Gender” is a more complicated term that refers to the social, cultural, and psychological aspects of being a woman, man, or any other gender-based identity in society (including girl, boy, and transgender, gender non-binary, and agender people). The psychological aspects of gender refer to a person’s “gender identity”: their subjective or internal sense of themselves as a particular gender (i.e. “feeling like a woman”).
But gender also involves how we present our selves outwardly to society; our “gender expression” or “gender presentation.” Social expectations for gender identification, gender expression, and gender presentation are called “gender roles.” And social expectations for fulfilling a gender-role are conveyed starting at a very young age by parents and peers, and through cultural forms like art, music, theater, literature, and the mass media.
Again, most people have a gender identity that is expected for someone of their assigned sex: if they are labelled male at birth, they grow up to identify as boys and then men. They present their gender identity in ways that are typical and expected for their society, and fulfill expected social roles for boys and men. Their gender identity is consistent with their biological sex and birth assignment to a gender category.
But not everyone.
Roughly 1% of the population experiences a conflict between their assigned sex at birth and their gender identity (i.e. they are labelled female at birth but grow up to identify as boys or men, etc.) And they may opt to express or present their gender identity by styling their body to match: hair, clothing, voice, mannerisms, gestures, etc.
Some may also alter the shape or structure of their bodies through hormones or surgery so it better aligns with their gender identity. The broad term describing such people is “transgender.” The term “gender non-binary” has a related meaning, but sidesteps the implications (in the term “transgender”) that gender is binary in form. (The term for those whose gender identity corresponds in socially-expected ways to their assigned sex is “cisgender.”)
Interestingly, emerging research suggests that everyone’s gender identity — not just transgender identities— result from changes to the brain caused by hormone exposure in the womb. That would mean that gender identity is an aspect of biological sex — brain anatomy and function — rather than gender, as has long been believed. The transgender experience might be shaped and channeled by one’s socio-cultural environment but it could be biological in origin.
Bodies can lie
All of which is to say: for both intersex and transgender people, the “truth” of their sex or gender will not be found in genes or genitals.
Intersex bodies may have genitals that appear male-typical but internal reproductive organs that are female-typical, and vice versa. Their genetics may not be consistent with the appearance of their genitals, at birth or later in life. And their gender identity and gender expression may not be what’s typical or socially expected for a person with their genes or their genitals.
Similarly for transgender people, whose gender identity, expression and presentation — their lived experience of gender— does not correspond to their genetics or sex assignment at birth, or gonads and genitals (unless the latter have been medically altered). If gender identity is the result of brain development in utero, evidence gathered from genes and genitals will not reveal the “truth” of a transgender person’s gender.
Under the proposed new legal definition of sex (immutable and determined at birth by genes and genitals), intersex and transgender Americans would no longer be protected from discrimination in housing, employment, education, and healthcare — because the scientific evidence of their bodies and psychology will not be recognized under federal law.
This doesn’t end well…
Though sex- and gender-variant people — and their allies — are right to be concerned, we need to think more broadly about underlying logic of the proposed new definition of sex and what it says about the instincts of Trump administration officials.
What is being proposed is that a person’s civil rights, legal status, and place in society will be decided by their anatomy, physiology, and genetics. That’s just another way of saying “biological determinism.” Or, as Freud put it, “anatomy is destiny.” (The fact that I’m having to reference 19th century psychoanalysis is telling….)
I know we’re close to Halloween, but that noise you hear is not some harmless ghost. It’s the shameful specter of eugenics, Nazism, and scientific racism and sexism. It’s the historical echo of every despot who’s attempted to reserve human and civil rights to only those with certain, approved bodies and systematically deny them to all others (because of their physical traits or characteristics).
It’s apartheid South Africa and the antebellum South. It’s forced sterilization of women of color, it’s the KKK, it’s Indian boarding schools. It’s mass graves in the Balkans and Rwanda. It’s the horrors of Auschwitz and Buchenwald. It’s the worst episodes in human history.
And it’s consistent with all the other sexist, transphobic, homophobic, and white supremacist rhetoric and policy coming from Trump and all corners of his administration.
As we work to grasp the implications of the Trump administration’s attempt to redefine sex, we cannot forget where such thinking leads…
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Michael J. Murphy, PhD, is Associate Professor of Gender & Sexuality Studies at the University of Illinois Springfield. He is the author of many book chapters, and encyclopedia and journal articles. Most recently, he edited Living Out Loud: An Introduction to LGBTQ History, Society, and Culture (New York: Routledge, 2019). He tweets @emjaymurphee.
