The Ramifications of Legally Defining Sex
This is part of a series of posts I wrote in the last year of school. This is an essay I wrote for my college composition class in fall 2018.
On October twenty-first, 2018, the New York Times reported the Trump administration has plans to request before the end of the year that the Department of Justice legally define sex as male and female. Specifically that sex is “unchangeable, and determined by the genitals that a person is born with…any dispute about one’s sex would have to be clarified using genetic testing.” (nytimes.com). This definition would be established under Title IX which is the civil rights law that bans discrimination based on gender in governmentally funded education programs. This move would give schools and other organizations the ability to ignore the needs and human rights of intersex individuals. People whose bodies do not fit into a binary understanding of sex have always existed and attempts to categorize them medically has fallen short due to the endless combinations of variations in external organs, internal reproductive organs, and chromosomes. Sean Saifa Wall, an intersex activist claims that “Intersex people who are identified at birth have already faced the physical and emotional impact [referring to cosmetic genital surgery]of doctors’ biases against intersex infants and children. If this…were codified into law, intersex people would be subject to further trauma and medical violence.” (pinknews.co.uk). Sex should not be legally defined because there are too many biological variations that do not fit a male/female binary. More research needs to be done, taking the lived experiences of affected people into account, before legal changes are made.
Sex and gender are widely confused and misunderstood. Sex is a label (male or female) assigned to a person at birth that is based on the genitals as interpreted by the doctor. Approximately .5- 1.7% of births are intersex babies (Intersex Society of America) whose genitals do not fit either of those labels. In this case, the doctor will do a chromosome test in an attempt to determine the child’s “true” sex. Regardless of a person’s physical sex characteristics, their gender identity may or may not match their body. Gender is a social construct based on expectations of behavior, dress, parenting roles and more. Many cultures throughout history have recognized more than two genders. A person can be intersex and transgender as in the case of Mx. Anunnaki Ray Marquez (Mx is a gender neutral honorific that is gaining recognition within the LGBTI community.). Marquez was born with an interesex variation but assigned female at birth. He now identifies as nonbinary (neither male nor female) and became the first person to obtain a corrected Colorado birth certificate marking him as intersex.
Biological sex at birth is assigned based on what genitals the doctor notices, but it is much more complicated than that would suggest. Brown University professor emeritus, Anne Fausto-Sterling, frequently cites the layer upon layer of human biology and psychology that determines sex. It begins with the chromosomes an embryo has and continues through early life when adults perceive a baby as a certain sex therefore teaching gender expectations. If a fetus develops Androgen Insensitivity Syndrome it will have XY chromosomes but the body will not be able to recognize testosterone. In this case although the chromosomes may be a layer of “male”, the gonads and external genitalia will be layers of “female” or nonbinary.
There are at least fourteen sex chromosome variations that affect how sex organs and hormones develop and work. One example is 46XX/46XY otherwise known as chimerism. Chimerism occurs when zygotes that would have developed into a set of male/female twins combine to become one embryo. While the physical appearance of Chimeric people can vary widely, they may have gonads and genitals that do not fit into the male/female binary. They also may develop differently than expected at puberty.
When an intersex child is born, the doctors and parents often make the decision to use “normalizing” cosmetic genital surgery to fit the baby into a binary understanding of sex. The history of intersexuality and the surgeries performed are deeply steeped in shame and secrecy. Parents were told to keep the truth a secret and thus intersex people would spend their lives suffering the physical and psychological of multiple surgeries that were not adequately explained. In July 2017, three former US Surgeons-General, wrote that they believed “there is insufficient evidence that growing up with atypical genitalia leads to psychosocial distress,” and “while there is little evidence that cosmetic infant genitoplasty is necessary to reduce psychological damage, evidence does show that the surgery itself can cause severe and irreversible physical harm and emotional distress.” They said: “These surgeries violate an individual’s right to personal autonomy over their own future.” In September of 2018, Lambda Legal published the first policy guide encouraging hospitals and medical providers to delay cosmetic genital surgeries on intersex infants and children until they are old enough to make their own informed decisions.
Intersex variations are an immutable, biological condition which are being ignored and erased by the Trump administration’s suggested definition of male and female. Experts in the fields of medicine, psychology, and LGBTI issues all agree that intersex people should not be forced into a binary sex through nonconsensual cosmetic surgery. Attempts to legally define binary sex categories as male or female only will have a catastrophic effect on human rights. So-called “bathroom bills” such as North Carolina’s House Bill 2 which says that people must use public restrooms that correspond with their legal sex would be more likely to remain unchecked if sex is defined at a federal level. This proposed definitional legal action would also effectively erase transgender and other nonbinary identifying people. The Fourth Amendment of the Constitution of the United States affords us all the right to be “secure in our persons”. Persons in this amendment refers to our bodies. We have the right to keep our bodies and information about our bodies private. No one has the right to legally define our sex against our will. Sex is not binary or unchangeable and therefore cannot be defined in a binary manner.
