The piece below, which just appeared in the prestigious New England Journal of Medicine, has three co-authors (two medical doctors and a lawyer) calling for removing sex designations from birth certificates—or at least putting them “below the line of demarcation,” which I guess means putting them where they are not publicly accessible. Click on the screenshot below to read the 2.5-page piece, or download the pdf here.
There are, I suppose, reasons to hide one’s “birth sex” from the public, but there are also reasons to keep it “above the line”. But the authors’ thesis is this:
We believe that it is now time to update the practice of designating sex on birth certificates, given the particularly harmful effects of such designations on intersex and transgender people.
I’ll summarize what the authors think those “harmful effects” are, but first will briefly discuss their claim that it’s even fatuous to designate sex on a birth certificate:
Designating sex as male or female on birth certificates suggests that sex is simple and binary when, biologically, it is not. Sex is a function of multiple biologic processes with many resultant combinations. About 1 in 5000 people have intersex variations. As many as 1 in 100 people exhibit chimerism, mosaicism, or micromosaicism, conditions in which a person’s cells may contain varying sex chromosomes, often unbeknownst to them. The biologic processes responsible for sex are incompletely defined, and there is no universally accepted test for determining sex.
In fact, as I’ve said many times before, sex in humans is about as close to a binary as you can get. Although “sex” in newborns is usually recognized by genitalia (“primary” sex characteristics), it’s defined biologically as the condition of producing either small, mobile gametes (sperm, i.e. in males) or large nonmobile gametes (eggs, i.e., in females). Eggs and sperm aren’t recognizable at birth, though a newborn female has a complement of eggs, and so genitalia is used as a surrogate trait. The fact that only 1 in 5,000 people have ambiguous or intersex genitalia does not materially diminish the claim that birth sex is a binary. That’s still about a close to a binary as you can get! After all, if sex isn’t a binary, what on earth does “transsexual” mean? It means you transition from one sex to the other, and that implies a binary in itself. (Perhaps this is why “transsexual” is being abandoned in favor of “transgender”, but if that’s to imply that sex isn’t binary, its duplicitous.)
As for chimerism, mosaicism, and micromosaicism, which are a bit more common, this just means that some of the cells in the body may not have chromosomes corresponding to the cells that determine gametes and genitalia. But these rarely affect the designation of “birth sex” (or whether one can function reproductively as a male or female), so it’s not an important point. This claim that sex isn’t binary made by people who should know better reminds me of a statement two years ago by The Society for the Study of Evolution that also asserted that sex wasn’t a binary (also gender, for which you can make a better case). That was ludicrous, especially coming from evolutionary biologists who have theorized about why there are only two sexes, and who also know that sex is binary in virtually all mammals, often diagnosed quite easily. I spent my life sexing fruit flies, and maybe once every couple of years I’d find an intermediate fly or gynandromorph (half male, half female).
The authors give another reason why perhaps one shouldn’t assign sex at birth, at least in a way viewable in public records:
Assigning sex at birth also doesn’t capture the diversity of people’s experiences. About 6 in 1000 people identify as transgender, meaning that their gender identity doesn’t match the sex they were assigned at birth. Others are nonbinary, meaning they don’t exclusively identify as a man or a woman, or gender nonconforming, meaning their behavior or appearance doesn’t align with social expectations for their assigned sex.
But this has nothing to do with biological sex at birth; it is about gender. And (as the authors note) there are ways to change your gender on driver’s licenses and even on birth certificates, if you’re one of those who suffer from gender dysphoria, which of course isn’t present at birth. Biological sex on birth certificates is not intended to “capture the diversity of people’s experiences.” That diversity comes later, and if you experience it, you can go back and make changes on the records.
Now, what are the advantages and disadvantages of publicly making biological sex visible? I’ll give what the authors say (indented) and my own take, where I have one (flush left):
Advantages of putting sex “above the line”:
Sex designations on birth certificates offer no clinical utility; they serve only legal — not medical — goals. Certainly, knowing a patient’s sex is useful in many contexts, when it is appropriately interpreted. Sex modifies the clinical suspicion of a heart attack in the absence of classic symptoms and is a proxy for many undefined social, environmental, and biologic factors in research, for example. But, in each of these applications, sex is merely a stand-in for other variables and is not generally ascertained from a birth certificate.
Indeed, the authors are right here: this isn’t much of an advantage.
Keeping statistical data on newborn sex may further public health interests. Moving information on sex below the line of demarcation wouldn’t compromise the birth certificate’s public health function. But keeping sex designations above the line causes harm.
More about that harm later.
Passports and state identification cards relying on sex assigned at birth for identification pose another challenge. These documents are usually issued or renewed when the holder is an adolescent or an adult, however, so moving sex designations below the line of demarcation on birth certificates would permit applicants to identify their gender without medical verification. Governments could also remove gender designations from identification cards altogether and focus more on identifiable physical features and updated photographs. This change would accommodate nonbinary people and reduce the burdens associated with amending documents.
To me there is value in putting sex on identifying documents, as it gives an instant check (as do photographs) of someone’s identity. Since the vast majority of people keep their biological sex throughout life, the advantage here would seem to outweigh the disadvantage of not using assigned birth sex. But, as I noted, there are provisions for altering your ID cards so that if you are, say, a trans person, you can use your gender identification on ID cards. As the article notes, there are “burdens associated with amending documents”, but those who assume the burdens are very few.
But to me, the biggest advantage of specifying biological sex is because it is important in several ways: for determining which category people participate in when doing sports, when assigning someone to prison or homeless shelters, or when choosing people to do sex-preferred tasks like rape counseling. I don’t care about bathroom assignments, which the authors bang on about, as there are lots of non-gender bathrooms (we have some) that aren’t problematic. But sports is a different matter that I’ve discussed before, and there are also known issues with putting, say, trans women in women’s prisons. Also, a woman who is raped might (and this is often the case) preferred to be counseled by a biological woman rather than a trans woman, on the grounds that a trans woman doesn’t have the kind of experiences that a biological woman has. Finally, if you’re keeping track for Title IX of men’s versus women’s access to equal educational resources, you’d presumably want to use birth-certificate statistics, which are easy to get and would barely differ, given the rarity of gender nonconforming individuals, from asking everyone what sex they think they conform to. Everything above also becomes more problematic if, as is happening increasingly, you can identify as one sex when you were born the other, and yet have no medical interentions to alter your physiology or phenotype.
All in all, given that you can change your sex on all documents save the birth certificate, these advantages of keeping biological sex publicly available aren’t that striking. But remember that for the vast majority of people there’s no reason not to identify with your birth sex. The case against keeping biological birth sex “above the line”, then, must rest on the degree of “harm” that this does to individual who don’t conform to the sex given on their birth certificates. Let’s examine the purported harms.
Disadvantages of putting sex “above the line”.
Here are the harms described upfront:
For people with intersex variations, the birth certificate’s public sex designation invites scrutiny, shame, and pressure to undergo unnecessary and unwanted surgical and medical interventions. Sex assignments at birth may be used to exclude transgender people from serving in appropriate military units, serving sentences in appropriate prisons, enrolling in health insurance, and, in states with strict identification laws, voting. Less visibly, assigning sex at birth perpetuates a view that sex as defined by a binary variable is natural, essential, and immutable. Participation by the medical profession and the government in assigning sex is often used as evidence supporting this view. Imposing such a categorization system risks stifling self-expression and self-identification.
People with intersex variations may undergo surgeries before they are old enough to consent, often losing reproductive capacity and sexual sensation as a result. Transgender people receive worse health care and have worse outcomes than cisgender people. Health care professionals have a particular duty to support vulnerable populations who have historically been harmed by clinicians and by the medical system in general.
I’m not sure how much “harm” this causes due to scrunity, shame, and pressure, this may be, largely hypothetical, and you can make the case that sometimes it’s useful to know sex for things like prison assignments and insurance (which is based on actuarial statistics. (I reject the view that it’s “harmful” to perpetuate the view that sex is binary.) But this is all moot given that people don’t look up other people’s birth certificates.
As for transgender people getting worse health care or unconsenting surgeries, I’m not sure what that has to do with putting sex above or below the line. It’s the parents who decide whether to surgically intervene in a sexually ambiguous child (something that, I think, should be rethought, for perhaps a child, when older, wouldn’t have wanted that surgery). But at any rate, the issue of whether kids get unnecessary surgeries does not rest on whether the sex is above or below the public line, for the parents know the situation regardless.
As for transgender people being mistreated, yes, this should be considered, yet one also has to consider that a). most people don’t look up the birth certificates of other people, which does take some trouble, and b). many transgender people proclaim their status and aren’t embarrassed about it at all. These days, saying that you’re transgender or transsexual garners you a degree of approbation, as we’ve discussed recently. Further, people don’t look up birth certificates when they’re abusing transsexual people; they either go by appearance or by someone’s own proclamation which you wouldn’t proclaim if you opposed public designation of birth sex.
But the medical outcomes claim is a canard, since medical personnel will know whether a patient is transsexual by either inspection or by being told; medical personnel do not look up birth certificates. Insofar as transsexual people are mistreated, either in public or in the medical system, the solution must come from education and moral suasion, not from changing birth certificates!
When it comes to sports and related organizations that require biological sex before making decisions, the article becomes quite weird:
Finally, governments can protect against sex discrimination in the absence of birth-certificate sex designations. Moving sex designations below the line of demarcation wouldn’t imperil programs that support women or gender minorities, it would simply require that programs define sex in ways that are tailored to their goals. For example, the Wing, a women-focused workspace club, admits people who are committed to building a community to support women’s advancement, regardless of their sex or gender identity. The International Association of Athletics Federations has defined “female” as a person with a testosterone level of 5 nmol per liter or lower, rather than relying on birth certificates. Although this definition is controversial, it has the benefit of making the goals and assumptions of the policy transparent, thereby allowing for more effective public debate.
Yes, but the problem comes—and it is coming soon—when people of one biological sex simply state that they are members of the other sex, and never undergo any surgery or hormone treatment for this “transition”. Already two runners in Connecticut are cleaning up in track and field competitions—runners who are fully biological males without any surgery or hormone treatment. Connecticut—and I think this trend will spread—allows you to simply declare what sex you are; no medical intervention required. The ACLU in fact supports this practice. And the more widespread this practice becomes, the more urgent it is to have a record—yes, a public record —of what sex you were at birth. Imagine putting a bearded, muscular man into a women’s prison because he declares that his gender dysphoria makes him equivalent to a woman.
This is not just hypothetical: something similar happened when a biological man in Canada declared he was a woman and demanded that female beauticians, expert in waxing women, wax his balls. They refused, and he sued them. In a rare example of Canadian non-wokeness, the guy lost in court (he lost, of course, because he could be identified as a biological male!), but this kind of thing is becoming more and more common. To forestall this trend, I think that, for the nonce, birth sex should be kept public. The supposed “harms” that attend to that practice don’t seem to me to be harmful enough to outweigh adhering to tradition. The age is coming when a simple declaration will be sufficient to identify your sex to the public, regardless of your biology.
But perhaps you disagree, and I’m willing to hear counterarguments. We haven’t yet regained our ability to have polls here, so weigh in below. Do you agree with the NEJM authors that biological sex at birth should not be a matter of public record that is in fact visible to the public? Or do you disagree? I’m listening.