There are many ways to parse the biological meaning of “sex,” as we will review below. I am mostly interested in the legal meaning, however, because it affects social rights and status. I have traced the legal definition of “sex” back to the notorious Dr. John Money of David Reimer fame. Yes, indeed.
10. Money lists seven variables which interact to produce the ultimate sex of the individual:
- Chromosomal – fertilization and early zygotic proliferation as either a 46/XX female or a 46/XY male, that is a sex chromatin-positive or -negative respectively.
- Gonadal – differentiation of the primitive gonadal ridge into either an ovary or a testis.
- Hormonal – differentiation of hormonal function (a) in the fetus to produce feminine or masculine organizer substances, and (b) at puberty to produce either feminine or masculine secondary sexual characteristics.
- Internal morphological – differentiation of either the mfillerian or the mesonephric (wolffian) duct into the internal accessory organs of reproduction.
- External morphological – differentiation of the external genital anlagen into either female or male sex organs.
- Assignmental – assignment of sex at birth as either female or male, with subsequent experiences of rearing reinforcing this decision.
- Psychosexual – differentiation after birth of a psychosexual identity as either female or male.Money, The Sex Chromatin and Psycholosexual Differentiation, in THE SEX CHROMATIN 434-35 (K. Moore ed. 1966)
This list of “variables” is repeated in various judicial opinons and legal briefs affecting the status of transsexual people. Here are two examples.
From a petition filed in NYC (Berkley v. Farley) that challenges the surgical sex-change requirement for birth certificate revisions:
7. In those forty years, the medical, scientific, legal, and psychological understandings of trans gender persons have progressed substantially. The mainstream view of these communities no longer equates sex with chromosomes or genitalia alone. Rather, it is now accepted that a person’s sex is determined by a host of factors, including
(3) gonads (ovaries or testes),
(5) hormonal secretions,
(1) internal reproductive organs,
(2) external genitalia,
(6) secondary sexual characteristics, and
(7) the brain sex or one’s self-identified sex.
Bold, numbers, and line spacing have been added to show consistency with the 2003 decision of The Court of Appeals in Maryland In re: Heilig (see page 8).
There is a recognized medical viewpoint that gender is not determined by any single criterion, but that the following seven factors may be relevant:
(1) Internal morphologic sex (seminal vesicles/prostate or vagina/uterus/fallopian tubes);
(2) External morphologic sex (genitalia);
(3) Gonadal sex (testes or ovaries);
(4) Chromosomal sex (presence or absence of Y chromosome);
(5) Hormonal sex (predominance of androgens or estrogens);
(6) Phenotypic sex (secondary sex characteristics, e.g. facial hair, breasts, body type); and
(7) Personal sexual identity.
Bold added to the terms medical and gender. Interestingly, the Berkley petition seeks to prove sex, while Heilig cites gender. It is an excellent illustration of the legal mess created by using the word “gender” as interchangable with “sex.”
Of these seven factors, all but ONE refer to objectively demonstrable physical criteria. Using “gender identity” legislation, trans activists argue that the single subjective factor on the list (#7) should override the other six variables. Here is a typical example of a “gender identity” definition:
I repeat, “regardless of the individual’s assigned sex at birth.”
As a human born into a female body and socially assigned the girl/woman sex-role at birth, I am opposed to the replacement of legal “sex” with any kind of subjectively asserted identity, appearance, expression, and/or behavior. “Sex” is not an identity or a choice. Sex is a bodily reality.
No single factor can or should be dispositive of an individual’s sex. Evidence of secondary sex characteristics (6) is generally accepted as proof of an individual’s “sex” despite the fact that these physical markers can be constructed and/or modified through medical interventions. Factors (2), (5), and (6)–genitals, hormones, and secondary sex characteristics–are also medically malleable. As a result, one or more of them often serve as the only legally necessary proof that a person’s sex has changed from the one assigned to them at birth.
By contrast, chromosomes (4) are immutable. Factors (1) and (3)–internal morphologic sex (seminal vesicles/prostate or vagina/uterus/fallopian tubes) and gonadal sex (testes or ovaries)–are also immutable. They can be removed from the body but medical technology is not able to construct functional facsimiles of them. Either you’re born with these reproductive organs or you are not.
The biological purpose of these “sex” organs is clearly human reproduction.
From monthly menstruation to fetal gestation, female bodies bear the primary burden of human reproductive processes. This existential reality is not under human control. Recognizing this, therefore, we should use the physical manifestations of female reproductive processes as the lens through which we establish the legal meaning and substance of “sex.” Female bodies and perspectives should be the default, not males’.