Bringing Sex Back
by Emily Zinos, First Things:
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?
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