Words may do literal violence after all. News that the Department of Health and Human Services may be poised to clarify the definition of sex within federal civil rights law has fueled existential panic among transgender activists, who spent the last week rending their garments in opinion pieces across the Web. According to the New York Times, the leaked HHS memo signifies “the most drastic move yet in a government-wide effort to roll back recognition and protections of transgender people under federal civil rights law,” a sentiment magnified by White House protests and a #WontBeErased movement on Twitter, where the definition of sex was decried as needlessly cruel and prompted fears of internment camps.
Rumor has it that the HHS will define sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth,” with proof of this status determined by “[t]he sex listed on a person’s birth certificate, as originally issued...unless rebutted by reliable genetic evidence.” In other words, the definition of sex within federal law would be clarified to accord with the definition of medical doctors, who record sex according to external genitalia in 99.98 percent of births. “Reliable genetic evidence” is exactly what is needed to diagnose the rare disorders of sexual development (DSDs) that affect 0.018 percent of the population. DSDs do not, as activists often claim, disprove a sexual binary; DSDs are sex-specific disorders that cause anomalous development of sexual characteristics. Precisely the opposite of “assigning” sex via “bureaucratic fiat,” recognizing and recording human sex through observation of the body is the most objective and neutral way for the law to accurately see its subjects.
But the New York Times article screams that the “[t]he new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves—surgically or otherwise—as a gender other than the one they were born into.” Clearly there must be something lurking behind this “new” definition, something powerful enough to strike fear into the hearts of activists, celebrities, and politicians. But what is it?
Part of the answer lies in the way “gender” is typically defined. Some use the word to denote a social or behavioral aspect of sex, some use it to refer to sex stereotypes, and many more treat it as a synonym for “sex.” But when it appears in municipal and state laws it becomes a “self referential condition of mind” that is chosen, fluid, and not objectively verifiable. Sex exhibits properties that are exactly opposite to those of gender: It is a bodily, fixed, and verifiable status. Sex would go right on existing with or without the blessing of the law or even a word to describe it. “Gender,” on the other hand, doesn’t exist outside the realm of language. Neither a state of mind nor medical technology can change or remove one’s sex, but within the law—an immaterial world made of language—what is impossible for physical man becomes possible for legal man. Thus we can interpret the frantic quotes warning that an accurate definition of sex “quite simply negates the humanity of people” as an admission that “gender” only exists as a legal definition—words—and not as a material reality.
But if gender can exist within law, why can’t we just squeeze it in alongside sex? Gender has, of course, already tried to co-exist with sex in a number of policies across the world, but in each and every case, sex gets the short end of the stick. Take the examples of Terry Miller and Andraya Yearwood, male high school track athletes who both identify as the female “gender” and compete on the girls’ track team. Unsurprisingly, they both blew past their competitors with male speed, bringing home the first and second place trophies in a recent state meet. With “gender” as the determining principle for team eligibility, the advantages and limitations that sex confers to the body simply do not matter because the body does not matter. Once a policy includes “gender,” it does not just ignore the sexed body of the individuals who assert a “gender identity”; the policy will necessarily ignore the sexed body of every single person it governs. Put another way, when just one man is included on a women’s sports team due to his chosen female “gender,” it’s no longer a women’s sports team. The category of sex altogether collapses. It is only by excluding gender and anchoring legal human identity to the sexed body that the law will be able to protect fair play in women’s sports, uphold sex discrimination law, collect accurate demographic data and crime statistics, and maintain single-sex facilities like restrooms, prisons, and homeless shelters.
Hand-wringing over the definition of sex boils down to one thing: Sex and gender simply cannot co-exist within the law. We will either be governed as sexed and embodied beings, or we will be governed as purely mental states. Should the memo materialize as reported, the HHS is to be commended for taking steps to ensure that the law sees us as we are, no matter how we identify.