When State Law Defines ‘Man’ And ‘Woman,’ Who Gets Left Out?


Maggie Koerth: If a state wants to limit who can use a women’s restroom or play on a women’s sports team, lawmakers first have to narrowly define what it means to be a woman or a man.

For example, the Kansas legislature recently passed a “women’s bill of rights” that attempts to define “woman” and “man” as innate biological categories, based on whether a person’s reproductive system produces eggs or fertilizes them. Similar bills defining sex based on physical characteristics at birth have passed in Tennessee and North Dakota, and they’re working their way through other states, as well.

Lawyers say these bills raise major privacy issues, and harm trans kids. But that’s not the only problem. As it turns out, it’s impossible to slot everyone into one of two categories, even if you are relying on basic biology. In fact, these legal definitions ignore the existence of a whole category of humans.

Koerth: Intersex, also called differences of sexual development, describes people whose biology doesn’t neatly fit into male or female. Sylvan Fraser is the legal and policy director for interACT, an intersex advocacy group. … One thing that I think that we are really interested in, how laws that are sort of framing sex as just a binary male or female, how that ends up affecting intersex people..

Sylvan Fraser: When a bill is written to define sex on the basis of a particular physical characteristic, or a combination thereof, that’s going to impact trans people, which is obviously the intent behind these bills, but it’s going to impact intersex people as well.

Koerth: Some people are clearly intersex from birth. Others find out when puberty hits. There’s even people who are intersex their whole lives and never know it

Dr. Ilene Wong: I know people who found out in their 40s that they were intersex.

Koerth: Dr. Ilene Wong is a urologist and author whose work has led her to advocate for intersex people and who educates doctors on the science of intersex.

Wong: To really, truly understand the breadth of intersex variations, it takes almost a graduate-level course. Because it’s not just studying one variation, it’s studying dozens of them.

Koerth: That’s because intersex is actually an umbrella that covers four parts of human biology: chromosomes, those X’s and Y’s that carry genetic information; gonads, the organs that produce eggs or sperm; the mixture of hormones coursing through a person’s veins; and what their genitalia looks like. An intersex person might have differences in one of these areas, or all of them.

Wong: Not only is gender a spectrum, but actual physical, biological sex is a spectrum … And so it’s impossible to fit these bodies into a single box.

Koerth: Dr. Wong says it’s hard to know for sure what the rate of intersex traits are because there are so many differences that could be counted and because some differences go unnoticed without genetic testing — which most Americans never do. But she and Fraser worry that these laws could mandate that kind of test, say for participation in sports.

Fraser: There’s absolutely reason to believe that subjecting schoolchildren to invasive exams and public scrutiny about their sex or gender will be really traumatic for kids with intersex variations, some of whom could be learning about their own intersex status for the first time through a procedure like this.

Koerth: I reached out to multiple politicians and activists who are pushing these bills, and most did not reply to me. But I did get a statement from Independent Women’s Voice, the advocacy group that drafted the Kansas “women’s bill of rights” and other bills like it. They said that intersex people won’t be harmed and can simply get accommodations under the Americans with Disabilities Act, adding:

Reading statement from Independent Women’s Voice: People with DSD conditions are biologically female or male, not a third sex. They are people with a medical condition, the exception that proves the scientific sex binary.

Koerth: But Fraser sees this as a particularly dangerous way to talk about intersex people. Advocates have worked for decades to stop the practice of routine “normalization” surgery on intersex babies and children too young to consent. Some bills that ban gender confirmation therapy for trans kids specifically make exceptions for surgery on intersex kids. Fraser says a definition of sex that treats intersex as a medical condition only encourages this.

Fraser: The greatest risk that I see in these bills is that they will reinforce the idea that intersex bodies are broken when that is simply not the case.

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