This development was terrifying and bizarre. Such a policy would go against everything we have come to understand about gender, and how it is defined by social and cultural factors rather than biological traits. And in a country where thousands of transgender individuals have undergone surgeries such as vaginoplasty and phalloplasty, it makes no sense to declare even biological sex (let alone gender identity) to be immutable and based on genitalia at birth.
What’s more, the proposed definition defies scientific fact: Even natal biological sex is not binary. According to current estimates, more than 3 million Americans have some kind of intersex condition (also referred to as disorders of sex development or DSDs). Intersex conditions affect about 1.7 percent of the population, making the occurrence roughly as common as red hair.
Though the Trump administration wants to establish simple and strict sex classifications, research indicates that the line between male and female is often ambiguous.
“According to the simple scenario, the presence or absence of a Y chromosome is what counts: with it, you are male, and without it, you are female,” explains a 2015 article in the journal Nature. “But doctors have long known that some people straddle the boundary — their sex chromosomes say one thing, but their gonads (ovaries or testes) or sexual anatomy say another.”
Anne Fausto-Sterling, a biology professor at Brown University, writes that by the 1950s, scientists had developed a complex model of sexual development. By birth, humans have five layers of sexual development, starting with chromosomes, and then adding on fetal gonadal sex, fetal hormonal sex, internal reproductive sex and external genital sex. None of these layers are strictly binary, and they can conflict with each other. A person with Swyer syndrome, for example, typically has XY chromosomes, a vagina, a uterus, and nonfunctional gonads.
Genetics, far from providing a clear-cut definition of biological sex, blurs that boundary even further. Although most people have XX or XY chromosomal pairs, many individuals are born with a single sex chromosome (X or Y) or three or more chromosomes — for example, XXX, XYY or even XXXXY. People with mosaicism, meanwhile, have one set of chromosomes in some of their cells, and a different set in other cells.
The memo leaves unclear how the new legal definition would classify intersex individuals. But Kristina Turner, the mother of an 11-year-old intersex child named Ori, is already concerned. Ori has mosaicism, so if federal guidelines required them to take a blood test, the results would show both XX and XY cells.
“I don’t know how people like Ori would even be definable,” Turner said. “I don’t understand how they think they’re going to be able to define gender when we have people that exist under that umbrella.”
Intersex individuals already struggle to be recognized by the U.S. government. In 2016, intersex Navy veteran Dana Zzyym was denied a passport after refusing to identify as male or female on the application. This put Zzyym in a confounding position: making false statements on a passport application is a federal crime, but the application makes it impossible for Zzyym to list their actual sex.
“This is how I was born,” Zzyym told the Los Angeles Times. “Many people are able to get their passports with their biological sex, and I should be allowed to do the same thing.”
The policy could also set back the gains that intersex people have made in their struggle for respect and recognition within the medical community. Many medically healthy intersex children involuntarily undergo irreversible, scarring surgeries in an attempt to bring their anatomy in line with their sex assigned at birth. Growing up, intersex activist Pidgeon Pagonis experienced this horrific treatment from doctors after being born with ambiguous internal genitalia and fears that this practice could increase under the proposed system.
“They castrated me when I was 1, gave me a clitorectomy when I was 4, and performed a vaginoplasty that left me scarred and insensitive when I was 11,” says Pagonis. Though Pagonis observes that more parents are advocating for the autonomy of their intersex children, the policy shift could squash this progress. It might encourage doctors to retrench to an erroneously rigid notion of biological sex and insist that surgeries are necessary.
It’s worth noting that many intersex individuals identify as the gender they were assigned at birth, but Ori, Zzyym and Pagonis all identify as gender non-binary, which makes them doubly at risk under the HHS’s proposed system. The policy would strip away any opportunity for Americans to identify as anything other than men or women, male or female — even as more and more Americans do so, and several states now allow non-binary “X” gender markers on ID cards, driver’s licenses and birth certificates.
The government declared a need to establish a definition of sex “on a biological basis that is clear, grounded in science, objective and administrable.” But the very concept of binary biological sex is none of those things. The distinction between male and female is blurry, created not by incontrovertible data but by a culture that fears gray areas. The Trump administration cannot pretend intersex or non-binary people out of existence, and it can’t do it through bad-faith appeals to an impartial, science-based approach.
“There have always been people whose gender is on a spectrum,” said Turner, the mother of an intersex child. “So I feel like, you won’t win, you’re not going to erase people. You can try, but you’re not going to.”