By Elizabeth Reis
October 23, 2018
IDEAS
Reis is a professor of gender and bioethics at the Macaulay Honors College, City University of New York and the author of Bodies in Doubt: An American History of Intersex.

A memo circulating through the Trump Administration proposes that several government agencies should define sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth,” according to the New York Times. This definition is a blunt instrument that, along with its cruel dismissal of the transgender population, fundamentally misunderstands the scientific nature of a person’s sex.

Sex is not so binary as we have assumed. A small but substantial portion of the population is born with intersex traits, including atypical sex development and sometimes genital and chromosomal ambiguity. This has been the case from the dawn of humanity, as some religious traditions have recognized; for instance, the Talmud, an ancient body of Jewish law and commentary, established rules for how to handle such ambiguity.

Consider this example: Some babies are born with female genitals but have XY (typically male) chromosomes. Since we don’t commonly test chromosomes at birth, such children are raised as girls, and in fact they develop female secondary characteristics at puberty. Many happily identify as women and are surprised when they find out their XY genetic make-up. Would these women now be forced to change their gender identity and become men? Clearly, this ill-considered proposal would confound science and human experience.

The suggestion also ignores what scholars have been saying since the mid-20th century: that sex and gender are two different ways of thinking about the human body. Sex, we’ve come to understand, is the biological part; it’s the answer to the question we ask when a baby is born: girl or boy? Gender is social and cultural; it refers to the standards we develop and assign to masculine or feminine identity. Pink and blue are neither inherently masculine nor feminine, but we use them to color code gender identity.

Separating sex and gender can be confusing because they often go together — usually those born with male genitals grow up to identify as men and those born with female genitals grow up to be women. But that is not always true.

Gender scholars like myself deserve a share of the blame for the confusion in parsing distinctions between sex and gender. Our explanation early on suggested that sex is the biological bedrock that cannot be changed, while gender is mutable, something that our society can reconfigure to achieve greater equality and fairness — so that, for example, girls might grow up in a less-restrictive environment and enjoy the opportunities afforded to boys, or that boys might be allowed to cultivate a gentler and more emotional affect, which we typically mark as feminine. Gender is indeed alterable, but it turns out that biological sex is too. Transgender people who modify their genitals or their hormone balances have shown this, though they need not take this route to live as trans. Transgender men can acquire beards, masculinized chests, bald heads; there would be nothing “female” about them, except their chromosomes. In the proposed chilling form of government intrusion on our privacy and individual rights, these could be tested.

But again, chromosomes aren’t the perfect sex markers we might think. Only fairly recently have we been able to see that chromosomes do not define a person’s “true” sex, if we insist on seeing sex as a simple male-female binary. Some intersex people have XX, XY and XO chromosomes — all in the same body. Our insistence in forcing them to choose one of two genders is perhaps unfortunate, and surgically imposing male or female presentation by altering an infant’s genitals is ethically unconscionable, but to legally enforce an artificial binary based strictly on chromosomes is scientifically unsound.

Furthermore, bodies sometimes simply do not match gender identities. If the government were to require this binary broadly, it would harm transgender people whose identity documents, including passports, driver’s licenses and other forms of required identification, would no longer accurately represent their bodies if they’ve undergone surgery or taken hormones. Their IDs would undermine the way they live in the world. Trans people would still exist, as they have throughout time — even before they had access to medical intervention — but their lives would become nightmares, as they would constantly have to navigate the new, government-imposed mismatch.

Sex and gender are not so straightforward as we have imagined, and this fact raises philosophical questions about social identity that call for careful consideration. As we do this work, let’s make it easier for all people to live freely and successfully, whether or not they conform to the potentially tentative pronouncements about their sex made at their birth.

Contact us at editors@time.com.

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