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Opinion Requiring fixed, binary sex on birth certificates erases real Oklahomans

Oklahoma Gov. Kevin Stitt (R) delivers remarks in a news conference on April 12. (Sue Ogrocki/AP)
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Jennifer Finney Boylan is the Anna Quindlen Writer in Residence at Barnard College of Columbia University.

On April 26, Oklahoma Gov. Kevin Stitt signed a bill prohibiting nonbinary gender markers on birth certificates. “I believe that people are created by God to be male or female,” he said. “There is no such thing as nonbinary sex.”

I am guessing that the Republican governor has never met Courtney Skaggs, who was born with both testicles and a clitoris. Or Cheryl Chase, who was born with what doctors identified as a penis. (Doctors kept her mother sedated for three days while they tried to determine the baby’s sex.) Or Hanne Gaby Odiele, a model who is one of the thousands of people born with androgen insensitivity syndrome (AIS), a condition in which a person born with a Y chromosome lacks the ability to absorb male hormones, and thus develops outwardly as female. Many women who have androgen insensitivity syndrome never know that they have a Y chromosome.

I’m also concluding that the governor did not read the June 2021 report of the American Medical Association, in which the organization recommended removing sex from the public portion of birth certificates altogether.

The examples above are of people with intersex conditions — which is different from the “nonbinary sex” which the governor insists does not exist. “Nonbinary” refers to people who identify neither as male nor female, an understanding of self which might develop over the course of a full life. But both intersex and nonbinary people might object to being designated with the M or F label doctors perceived at birth, with good reason. And the new law follows a November executive order that banned changing gender on birth certificates, so transgender Oklahomans are now forced to maintain documents at odds with their current identity as well.

The governor’s simplistic statement is not about science, or medicine. It is about insisting on a traditional worldview that doesn’t include the real range of Oklahomans. It is about erasing anyone who is transgender or intersex or nonbinary. It is, above all, about firing up the base.

Oklahoma now joins two other states in which changing one’s birth certificate is impossible: Tennessee and Ohio. Nationwide, the policy varies wildly: In some states changing a birth certificate requires a court order; others require evidence of a medical transition; in still others, neither is required and an individual can simply go to a vital records agency and make the change.

The inconsistency in the law — in which your very identity is hostage to the whims of politicians — is reminiscent of the ruling in a 1999 case, Littleton v. Prange, in which the legality of a transgender woman’s marriage (in the days before Obergefell v. Hodges) to a male was considered by a Texas court. “Taking this situation to its logical conclusion,” her lawyer said, “Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”

No person should ever have to live under the threat of a judge — or a governor — ruling they are not who they know themselves to be.

Which is why transgender and nonbinary and intersex people seek to have their birth certificates changed — so that they can get other vital records issued in conformity with their presentation. In other words, so that they can live their lives in peace.

At the heart of this argument is the question of what it is a birth certificate actually measures. Is it physical (or externally evident) sex? Or is it something more elusive — a sense of self? Is it about who you were, or appeared to be, at the moment of your birth? Or is it about something else — the person, perhaps, that you grew up to be, and finally came to understand through the experience of living in the world?

I am no philosopher, but I am a transgender woman. And I do think I know what sex I am, not by considering what was between my legs in 1958 when I was born, but by understanding what is in my heart, and the life I have lived since then. Surely, if I lost my body below the waist, I would still know myself to be female, just as a woman who has had a hysterectomy or a mastectomy still knows herself to be female, just as a woman with AIS (and a Y chromosome) might know herself to be female. Even if I were just a head in a jar, I would still know my own soul.

But Gov. Stitt’s order is not about understanding the soul or the body or the mind. It’s about sending a message — that there is only one way to exist in his state, and that is according to his rigid definitions of man and woman.

There is no room for me in Oklahoma. Is there room for me in the place where you live?

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