The Legal Implication of Defining “Sex”

By Francis Northwood (PO ’21)

The Department of Health and Human Services (HHS) is currently attempting to define the word “sex”, according to a memo leaked to the New York Times. This definition would describe sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.” With an estimated 1.4 millions Americans opting to not identify with the sex that they were assigned at birth, there are massive implications to defining sex. The definition that the HHS is proposing would specifically be located under Title IX, the law which prevents discrimination in educational settings. In potentially reworking the definition of sex, the transgender community would become even more vulnerable to systemic discrimination, the intersex community would become a legal incongruity, and there would be precedent for other government departments to take actions in defining sex outside of the educational setting.

In the medical community, sex and gender are two distinct concepts, sex being more anatomical, while gender represents a much more societal concept. The United States government does not distinguish between the two, meaning that there are only protections based upon sex. The Obama administration substantiated legal gender protections within the scope of protections based upon sex. Thus, applying this explicit definition of “sex” would result in the removal of legal protection based upon gender. For now, only the protections under Title IX would be removed, but as will be discussed later, there are broader implications to that.

Over a hundred hate crimes in 2016 were directed at a transgender community. Even without the removal of legal protections, the transgender community is already acutely vulnerable. If this definition where to go into effect, the transgender community would immediately feel the impact in educational settings, and would not be protected from bullying and discrimination within the confines of schools.

While discussions regarding gender more often are fixated on the social construction of such, the intersex population reveals the biological—not social—oversight in the proposed definition. 0.5% of Americans are intersex. This condition encompasses those who are born with any of several variations in sex characteristics including chromosomes, gonads, sex hormones, or genitals that do not fit the typical definitions for male or female bodies. By defining sex as the “immutable biological traits identifiable by or before birth” a legal loophole arises for those who are intersex. Doctors assign a sex to infants they deliver, which may not accurately represent the person’s identity as they later grow up. So, if a doctor were to assign an intersex person a female, but their male traits would surpass the previously prominent female traits, the person might identify as and look female, but be officially male. In essence, sex cannot be solely seen as the immutable biological traits identifiable by or before birth, as long as intersex people exist.

If Title IX were to define sex, it would set a precedent for other departments and agencies to create similar definitions, which encompasses the aforementioned trans and intersex demographics. While HHS is requesting a definition under Title IX in the Department of Education, the Department of Labor and other departments would have the immediate precedent to define sex. If the Department of Labor were to define sex, protections in the workplace would also disappear. These ripple effects would make the transgender and intersex community far more susceptible to unprotected harassment and unfair treatment. Furthermore, the current administration would reveal their complete disregard and neglect for these communities.

This change may not end up impacting many due to state-level protections already in place. Despite this, the most powerless members of the transgender and intersex communities often live in the most conservative states with fewer protections. So those already vulnerable are the ones most likely to be impacted by the Trump Administration’s efforts to define sex. It is yet to be seen whether or not the Department of Education will take on the suggested definition, but with such a strong-willed administration in place, it would not be that unexpected.

 

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