Over the weekend, The New York Times reported on a leaked Trump administration memo outlining another tactic to disenfranchise and erase some of the most marginalized among us. According to this memo, the Department of Health and Human Services would federally redefine sex strictly as “either male or female, unchangeable, and determined by the genitals that a person is born with,” with any “disputes” to be settled by “reliable genetic evidence.” This redefinition effectively weaponizes the concept of “biological sex” against transgender, gender-nonconforming, and intersex individuals.
Such is what passes for a strategic attempt to impose a definition that is “clear, grounded in science, objective, and administrable” — but leaning on any single bodily trait as evidence of someone’s “true” sex is none of these things. The idea that genitals alone don’t determine one’s gender, while still a radical proposition in the minds of many, is widely accepted by the medical community. However, when it comes to the concept of sex, most of us are still shy about challenging the notion that it too does not exist on a binary.
We hear this shyness reverberating in terms like “male-bodied,” often seen as adding a hurtful asterisk to a transgender woman’s identity by lumping her in with cisgender men who were assigned male at birth. If we allow genitals, or even genetics, such an elevated status, we’re liable to keep falling for the same trick again and again: a shell game where the gender someone feels like or their preferred pronouns or their beliefs might be indulged, but when it comes down to legal recognition or protection, a false understanding of “biology” has blocked their path.
While society has historically tried to understand “gender” as a clean binary of “man” and “woman,” we have known for some time our biology behaves quite differently. After centuries of medical gatekeeping impacting intersex and transgender individuals, the medical community has taken massive steps forward in recognizing gender as complex and far from binary.
But transgender and intersex people continue to face mistreatment and ignorance in many areas of life, including from health care providers and insurers. A societal obsession with divining a “true” sex via any particular “biological” marker has left intersex people with a community-wide legacy of trauma.
The intersex community is still fighting against nonconsensual hormonal and surgical interventions that position our natural traits as problems to be fixed. Fixating on one “biological” marker means medically “correcting” other traits — to match a gender someone may or may not have. For LGB and transgender people, so-called conversion therapy is the legacy left by an antiquated worldview that treats variation as pathological. Intersex differences are pathologized and forcibly converted in a similar pattern.
In the world of policy, the previous wave of state “bathroom bills” shows how transphobia has attempted to exclude and erase anyone who challenges the narrative that gender is as simple as your original birth certificate. The less visible group also impacted by this policy push was, again, the intersex community, and the narrative disruption they introduce is even more fundamental: Sex characteristics also are a natural spectrum, and the categories we construct around them are arbitrary.
The intersex population therefore throws a hefty wrench into the administration’s proposed sex classification scheme: Not all intersex genitals match what we would typically associate with either binary category, nor do all chromosomes. For example, some intersex people, like coauthor Kimberly Zieselman, develop with XY chromosomes, internal testes, a vagina and vulva, and go through a “typical” feminization at puberty because of their insensitivity to testosterone. Some intersex people have chromosomal patterns that are neither XX nor XY, or a mixture of both XX and XY in different cells in their bodies.
Chromosomes came into vogue as the “one true biological marker” soon after they were discovered, replacing their incumbents: genitals, preceded by gonads. In earlier times, when gonads ruled as the true biological signal of gender, intersex people who were discovered to have internal testes or ovaries that did not align with their external bodies were forced into the gender role corresponding with their internal gonads, regardless of how they’d lived their entire lives. Intersex people have lived the news before: We know all about attempts to control and categorize people into binary gender roles by traits based on the bodily marker of the day.
Intersex bodies can also change and develop different sex traits later in life, in ways that are unexpected based on their phenotype at birth. This might happen because of an intersex trait like 5-alpha reductase deficiency or nonclassical Congenital Adrenal Hyperplasia — variations that may cause unexpected hair growth, genital growth, or a deeper-pitched voice. Many intersex people take hormones to medically manage their characteristics and bring their bodies into alignment with their gender.
Whether someone is intersex or not, this much is clear: Genitals (or any other bodily trait), whether observed at birth or later on, don’t tell you everything about gender. This administration is counting on you to believe otherwise so that you’ll accept our erasure as simple “science.” Please pay better attention. Hinging policy on definitions that reflect rigid ideology more than the complexities of science and human experience is a dangerous attempt to undermine the validity of intersex, transgender, and gender- nonconforming lives, and we will not take this lightly.
HARPER JEAN TOBIN is director of policy at the National Center for Transgender Equality. SAM AMES is executive director of Trans Lifeline. KIMBERLY ZIESELMAN is executive director of interACT: Advocates for Intersex Youth.