Trump Administration Threatens to Change Definition of Sex

Three errors that have major impacts on civil rights protections.

Posted Oct 21, 2018

Today, The New York Times announced that the Trump administration’s Department of Health and Human Services is considering defining gender as a “biological, immutable condition determined by genitalia at birth.” In a departmental memo, the DHHS proposed that government agencies adopt a definition of gender that is determined "on a biological basis that is clear, grounded in science, objective and administrable." This is problematic for several reasons. First, it misrepresents the concept of gender. Second, it uses a very narrow and misinformed definition of sex assigned at birth. Third, it significantly narrows the scope and potential impact of civil rights protections.

The authors of this memo are under-informed or misusing terms and concepts that are generally agreed-upon by most active members of the scholarly community who research sex and gender. What I mean is that this memo fails to recognize several important points that have been well-established by researchers in many disciplines, including psychology, sociology, psychiatry, endocrinology, pediatrics, and biology, to name a few.

  1. Gender is an identity that can be expressed in many ways and defined using diverse terms. It is not an “immutable, biological” category.
  2. Sex is a category based in the medical profession’s interpretation of many aspects of a person’s physiology (gonads, chromosomes, hormone levels, etc.) and some jurisdictions recognize more than two categories. It is based on much more than just genitals.
  3. Assigning sex categories based on a quick examination of a person’s genitals has harmed many people and led to long-term harm as evidenced by the experiences of members of the intersex community.
  4. Sex is a category that has been created by social institutions to enforce the gender binary (see Fausto-Sterling 2000), gender is how a person identifies and includes many more gender identities than those currently recognized by most legal and medical professions.

This earlier blog post provides more information on the differences between sex and gender. The memo continues to state: "The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence." Which indicates that those individuals who have the financial means and support to undergo the lengthy medical then bureaucratic process of having their legal documentation changed will be allowed protections. However, those who don’t will be left vulnerable to discrimination that will be endorsed by the state.

Civil rights laws were designed and passed to ensure equal protection under the law for all people and to try and correct historical discrimination against groups who have not enjoyed these protections due to our nation’s history of systematic exclusion of people of color, women, immigrants, etc. from the full rights and protections of living in a democratic society. This narrowing of civil rights protections – which on its surface impacts a small percentage of the population – in actuality harms us all. It creates a precedent for limiting the scope of civil rights laws to certain groups of people rather than using them to address the problem of discrimination in all the ways it may manifest itself. I hope that we can raise the voices and influence of members of the scholarly community who study sex and gender to help correct these errors before they become federal policy.

For more info, please see my follow up post here.

References

Fausto-Sterling, A. (2000) Sexing the Body: Gender Politics and the Construction of Sexuality. Basic Books.

Meyer, E. (2010) Gender and Sexual Diversity in Schools. Springer: New York.