New England Journal of Medicine piece calls for removing sex designations from birth certificates

December 21, 2020 • 11:00 am

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.

48 thoughts on “New England Journal of Medicine piece calls for removing sex designations from birth certificates

    1. Indeed, I had hoped that scientifically literate people would be relatively immune from this transgender nonsense, but I guess not. NEJM should be ashamed.

    2. The NEJM publishing a “perspectives” piece does not necessarily imply that the journal itself or its editors agree with it (although they might). I’m all for publications allowing a range of opinions. It’ll be interesting to see if they now publish a piece giving the opposite perspective (or whether anyone would dare write it).

  1. Dodging the debate about sex and gender I believe that any state documentary change which would cause ripples throughout society shouldn’t be decided on mere political assertion but on a thorough evaluation of what that change would entail.

      1. Great news! Expectant persons will now be able to answer that intrusive “Is it a boy or a girl” question, with “He/she/them/they haven’t decided yet.”

  2. If the AAP (American Academy of Pediatrics) is fine with it then that would weigh heavily… but in the end, it could be an option for the parents – I think the family wishes comes first.

  3. To the NEJM’s proposal, I would make one simple addition. Let us no longer indicate an individual’s species on public documents. Since subspecies are known to exist, the species concept should not be taken as “simple and binary”, to use the eloquent language of the NEJM article. And think of the harm done to a trans-species individual who is designated as Homo sapiens, but feels internally that it is really, in its heart of hearts, Ornithorhynchus anatinus.

  4. I suppose a similar argument could be made about putting a name on the birth certificate, since that could later be used to dead-name a person. Frankly, I think we are at the beginning of the debate over transgenderism rather than the end (although transphilic people would like to pretend it’s over). I think in the next ten years we will, as a society, accept the fact that pretending gender overrides sex does harm to young lives. We might as well try to hold the line and minimize damage.

  5. Question for the house:

    Seems that in terms of identity, sex/gender is completely porous to the point that mere saying that one is a man or woman requires society to recognize one as such.

    On the other hand, race/color is completely impermeable and absolute: one is cancelled, or worse, for pretending to be a race/color one is not.

    Has anyone seen convincing arguments for why this extraordinary disparity in the treatment of these 2 facets of identity is tenable? If so, Can someone provide reference or link? I have tried, but find only one writer saying as such and such has stated…….etc etc, but no argument.

        1. The tragic results of wasted university tuition. Which, in a probably vain attempt to keep things topical, might make one wonder if early exposure to absurdity standing with its pants around its ankles might have eliminated some of the clueless fog in which the authors of this idiocy clearly live. Or to put it another way, maybe if MP was part of the basic curriculum, then people like this would stand a better chance of recognizing their own absurdity before digging in too far.

    1. I don’t believe birth certificates identify a newborn by race. It used to be that birth certificates identified the race of the mother and the race of the father (see, for example, the famous Hawaiian longform certificate of live birth Barack Obama made public in a futile effort to quell the ridiculous Birther conspiracy), but now such certificates list the mother and father only by their names, dates of birth, and places of birth.

      Although mileage may still vary on this from state-to-state across the nation.

  6. To make their case, the NEJM authors should be able to *document* their claims that the location of biological sex information above the line causes or has caused harm to the individuals involved. Like, documentation that would hold up in court. I’d be very interested in seeing such evidence. In the meantime, I’m mentally filing this episode under the ‘useful idiocy’ heading. Apparently being an MD doesn’t guarantee that anyone is immune from holding views meeting that description, but we knew that anyway from those on the opposite end of the ‘woke’ axis (e.g., Scott Atlas, the authors of the Great Barrington Declaration, etc.)

    1. I’m betting that the authors would argue something like:

      It’s because, and only because, doctors assign a sex that parents and everyone else then treat the baby as being of that sex. If it weren’t for that, the child would grow up without anyone regarding them as being a “boy” or a “girl”, until such time that the child could declare their own identity and pronouns.

      Which is of course the most utter tosh.

  7. I strongly disagree with the proposal.

    Birth certificates are not little essays seeking to capture the internal experiences, personal preferences, and subjective identification of the individuals. They are records. Sex isn’t “assigned at birth” — that’s a phrase taken from the past regarding intersex, when doctors made unscientific guesses when dealing with the rare situation of very ambiguous genitalia. And my guess is that Transgender Rights Advocates are again using people with Disorders in Sexual Development as a shield in order to claim that putting sex on birth certificates is harmful. Did intersex people complain in the past? Identifying as transgender and having a DSD are not related.

    Ironically, if transgenderism really was about crossing genders — meaning the characteristics, behaviors, and appearances that different societies assign to the sexes — then there’d be no problem with birth certificates or anything else. Being transgender would simply mean you don’t follow expected stereotypes regarding “masculine” and “feminine.” Excellent. Most everyone is now more or less transgender.

    They are not transcending gender. They are trying to cross sex by establishing, reinforcing, and using gender.

    1. “And my guess is that Transgender Rights Advocates are again using people with Disorders in Sexual Development as a shield in order to claim that putting sex on birth certificates is harmful.”

      Exactly. Being intersex is an unwanted outcome where something went wrong during fetal development. We don’t use people who are born with congenital defects in their legs to say, “look! The idea that humans are a bipedal species is a lie perpetrated by problematic scientists!”

  8. The world tends to set things up according to the majority, not by the exceptions. If sex becomes a classified or top secret item not allowed on the birth certificate next we will remove year born as well. Many will want to adjust their age.

    1. Not to mention “Place of Birth.”

      “My Birth Certificate says ‘Podunk, Kansas,’ but I have lived on the Upper East Side of New York City for ages and Kansas just doesn’t represent who I am at all!”

      1. How about, “my birth certificate says I was born in Tijuana but I identify as having been born in Podunk. I can haz green card?

      1. Interesting you should say that. I myself am now convinced that I’m Marcus Aurelius, and I was thinking the same thing about anyone who disagrees with *me* on that. Funny old world, eh?

        1. Or, as Sam Harris has put it: If you think your wine is changed into the blood of Elvis Presley, you’re crazy. If you think it’s the blood of Jesus, you’re just a Catholic. (I paraphrase.)

  9. Arguments along the lines of “nobody looks up the birth certificate to …” are not convincing because characteristics shown on documents that a person would actually present, like a driver’s license or insurance policies, is derived from the birth certificate.

      1. Ah, right, of course, for practical reasons and others.

        Makes me wonder if being able to change the birth certificate is why the conservative wording is “assigned at birth”.

  10. Hmm. How long before they go for the parents that assume the gender of their child based upon their genitalia at birth? Madness seems to be contagious.

  11. Difficult to deny a binary sex system without denying how the hell you got here!
    If you think you’re special get in line. Hiding your birth sex is like “cooking the books” to suit your agenda.
    How you end up describing yourself is up to you and knowing the truth about your lived experience (birth to present day) means you have nothing to hide and here I am.

    1. Children seeing their parents naked and asking those difficult questions? Better for adults remain clothed at all times, and neutrally, so that children don’t feel coerced into thinking that they are one or the other.

  12. Very long ago, I had just enrolled in sixth form college when some of my new friends recognised a female fellow student as someone they had known at school as male. (For what it’s worth, no birth certificate identification was required.) I’m ashamed to admit that we were immature and ignorant idiots and didn’t handle the situation very sensitively.

    However, I genuinely think that things have improved in this regard. One of my children enrolled in sixth form last year and became good friends with someone in the same position as the person identified by my college friends years ago. The student’s new gender identity was openly acknowledged and accepted by everyone without batting an eyelid. (Despite this, my child’s friend has since chosen to revert to their original gender identity, but I daresay that’s another story…)

  13. Maybe slightly off the topic of ‘above’ or ‘below’ the line, what I really found shocking is the: “…may undergo surgeries before they are old enough to consent, often losing reproductive capacity and sexual sensation as a result. ” That is great, nearly immeasurable harm. Is this actually happening to children?
    For surgery with such important and irreversible consequences, I’d say that parents should have no right to decide for their child. And the child should not be able to decide until it reaches adulthood. I also have difficulty to accept there are surgeons actually carrying out this surgery on young children (if so).
    [Re the subject, I disagree whit the NEJM authors, I think Jerry argued well enough to keep it ‘above’ the line.]

    1. The quote you mention is about DSD (intersex) babies, who are sometimes born with ambiguous genitalia. Years ago it became common practice for doctors and parents to decide to “normalize” the infant one way or the other, performing surgeries which were sometimes problematic, and occasionally disastrous. The tendency today is to be much more cautious. Disorders in Sexual Development being a mixed bag, some surgeries are necessary.

      https://www.wgbh.org/news/science-and-technology/2019/10/24/medically-necessary-or-cruel-inside-the-battle-over-surgery-on-intersex-babies

      It’s interesting that your quote also applies to what’s called “gender confirmation surgeries” for the transgender, though they’re usually performed on adults and older teens, and with their consent (though not necessarily with a good understanding of the risks.)

  14. as there are lots of non-gender bathrooms (we have some) that aren’t problematic

    Do architects still design new buildings with “gendered” sanitary facilities in any sense more fundamental than the label on the door.

    Edit : the image link got chopped – a new “feature”, no doubt ; “desired” is open to question. The link was to
    img src=”https://media.istockphoto.com/photos/toilet-sign-men-women-aliens-picture-id517228542″ alt=”NB : the alien may be from a non-binary biology. Sign is reversible.”

    1. Wonder if extraterrestrials will be more or less likely to visit us, as that stock photo company may have given them their own bathroom sign, but it stereotypes them.

  15. I’m saying this as a GLBT person (thankfully more or less anonymously) but all this BS has just gone too far. We included an “X” available in addition to F or M to accomodate intersex people on birth certificates.
    I agree that this is important. At first the concept was “sex is assigned at birth, but gender is more fluid.” I definitely agree that just because you have a penis or vagina doesn’t mean that you will immediately act in certain ways. There is definitely a SPECTRUM of masculinity/femininity which is influenced by all sorts of things, including exposure to androgens in utero, epigenetics, and I do think some amount of socialization matters as well. HOWEVER, as someone with a medical background who has trans friends, just because you transitioned and now have a penis instead of a vagina doesn’t mean that you still won’t have certain health issues associated with females, and vice versa. If you had a penis before and now have a vagina, you won’t get cervical cancer or experience menopause in the same way due to the fact that you will be on synthetic hormones.

    In my college sociology class, we had to comment on the idea that “race was a construct.” Well, given that blacks have increased incidence of sickle cell, hispanics have more diabetes, and whites are more pre-disposed to colon cancer, this would indicate that race is something more than a construct. WE CANNOT ERASE all the influences of our biology and genetics no matter how many meds we take. For many, this is the ultimate philosophical and psychological surrender, but we have to go on hard evidence here. We cannot “meditate” all of our biological predispositions away.

    Removing bio-sex info from studies also is harmful to everyone, because it removes stats that show that certain groups are more vulnerable.

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