The Trumpies Define Sex

Let’s not let this story get buried under the garbage stream emanating from the White House.

The New York Times obtained a memo from the Department of Health and Human Services attempting to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance.

The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.” The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo, which was drafted and has been circulating since last spring. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

So many things wrong. Let’s look at them one at a time.

Sex has to do with biology, gender with the social construction of one’s role. The quotes from the memo all relate to sex, although the reporter(s) seem to conflate gender with sex. So let’s focus on biological sex.

The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with

It’s possible that as many as 2% of babies have ambiguous genitalia.

Any dispute about one’s sex would have to be clarified using genetic testing.

There are difficulties there, too. In addition to the XX and XY chromosomes that the author(s) of the memo seem to be thinking of, people may have extra sex chromosomes, resulting in XXY and XYY combinations. Those triplets may be associated with ambiguous genitalia, or they may not.

Does this mean that all babies will have to be tested for their sex chromosomes? Will the proper sex be tattooed onto them for entry into the proper bathrooms? Or will there be a genital check before bathroom entry?

Science says that genitals may be ambiguous and we know that those additional sex chromosome combinations exist. That’s objective. So the proposed standard is neither “clear, grounded in science, objective, [nor] administrable.”

And that’s without considering gender dysphoria and the treatments that mitigate it.

Presumably the purpose of attempting to define sex once and for all at birth is to placate those who are uncomfortable with fluid gender identities. Or perhaps those writing the report themselves believe, or want to believe that sex and gender are that simple.

The Trumpies, of course, want transgender people out of the military. Vox lists a number of other actions they have taken. This is one more step toward making them nonpersons.

This article gives more of the biology and raises the question of whether we think the government should be keeping a genital registry.

It won’t hurt to write your congressional delegation about this now, but I suspect they’re distracted with the election.

50 replies
  1. 1
    NotMax says:

    If there’s anything modern medicine and science have demonstrated, it is that biology is not necessarily immutable and is not automatically the same as destiny.

  2. 2

    I think I see your problem here Cheryl, you’re approaching this as a scientist; this administration doesn’t understand science.

  3. 3
    SiubhanDuinne says:

    WTF happened to John’s post on the GA governor debate? Not to mention my clever and well-crafted comment?

  4. 4

    @SiubhanDuinne: Bigfoot realized he was big-footing.

  5. 5
    trollhattan says:

    Is there anything these guys can’t screw up?

    “Trump Administration makes rootbeer floats taste like wombat feces.”

  6. 6

    Rotten shit they’re trying, really really bad, President Pence wouldn’t be doing anything differently.

  7. 7
    NotMax says:


    On the blog posts come and go
    Talking of Michaelangelo


  8. 8
    Schlemazel says:

    Caitlyn Jenner twitted about this today. She got hammered by everyone. I wonder if having that happen affects her?

  9. 9

    Where is Maureen Dowd and other preening assholes of the Beltway media who thought that T was a lovable rogue and better than the school marm HRC?

  10. 10
    debbie says:

    This reminds me of The GWB administration’s efforts to redefine torture. These guys need better dictionaries.

  11. 11
    Starfish says:

    @🐾BillinGlendaleCA: A lot of people have approached this in a way that is not scientific. This confirmed for me that this biological absolutism is complete nonsense.

  12. 12
    debbie says:

    @Major Major Major Major:

    Evangelicals are the devil’s spawn. They’re the real monsters behind all this crap.

  13. 13
    Dan B says:

    There are so many ways this issue illuminates our culture and many thousands of stories.

    One : a good friend is a urologist who trained in India. Gender assignment at birth for genital ambiguity has been rare because it’s costly, at least for a country with a high rate of poverty. This urologist says that 1 per cent of babies have ambiguous genitalial features.
    Historically children who had ambiguous genitalia were sent to live with, and/or, be raused by hijra (one spelling). They were considered to be at a higher spiritual level and invited to bless weddings. The British put an end to this and today they extort money by intimidation.

    This is the Cliff Notes version but it illustrates one tiny bit of western culture’s clash with reality. We don’t recognize the water we swim in. It buffets us anyway.

  14. 14
    BretH says:

    The problem with a discussion like this is its like taking a peer-reviewed science journal study to a poop fight. You are talking science and all the Republicans want to do is get the yahoos ginned up about “winning” the war on perverts.

  15. 15
    SiubhanDuinne says:


    I’m tired of this. We’re all grown ups. We can read one post and then read another. This whole thing about “bigfooting” and then backing off without a word of explanation is irritating and stupid.

  16. 16
    bcw says:

    The X and Y chromosomes are not the only set of genes that determine sex, they only start motion along a developmental path that has multiple steps and components for which variants can produce a multitude of disparate outcomes. Variants in environment and the structure and the degree of responsiveness to a multitude of hormones in multiple systems produce different outcomes in both physical and mental development. And there are hundreds of genes that affect brain development on top of all this. Biology is never simple. See for instance:

  17. 17
    SiubhanDuinne says:


    I grow old, apparently.

  18. 18

    It’s odd, I never really pegged Donald Tяump as one of these weirdos who lie awake at night worrying about other people’s sexuality. Maybe Pence is bringing him up to speed on this.

  19. 19

    Yeah, well, what do people who know what they’re talking about when they talk about this shit know? Or something…

  20. 20


    A lot of people have approached this in a way that is not scientific.

    That was kind of my point.

  21. 21


    I grow old, apparently

    You are neither a lobster nor a hydra, so, yes.

  22. 22


    We’re all grown ups.

    You must have missed my comments.

  23. 23
    joel hanes says:

    What do these fuckwits propose to do when the sex determined from genitalia and the sex determined from chromosomes do not match ?

    That happens.

    I believe they’re capable of mandating sex-assignment surgery in such cases, in order to impose their rigid binary view of how the world ought to be on the messy multivariate continuum of biological reality.

  24. 24
    Dan B says:

    A remedy has been floated. Assign bathroom monitors. Male monitors would inspect the genitals of people entering Mens Rooms and vice versa.

    Kavanaugh would object unless he could monitor the Girls Room. (Did I think /say that?)

    He’d have to fight Mother. Pay per View opportunity!?

  25. 25
    Mnemosyne says:

    I’m assuming that this is going to be like when the Olympics decided to do random “gender checks” and started pulling athletes’ pants down to make sure they were the “correct” gender.

    IIRC, the uproar over that had them start doing genetic testing where a good portion of the athletes got very surprising news, so they had to stop doing that as well.

    Fundamentalists have a very, very rudimentary understanding of human biology and reproduction. They do not understand the many ways a pregnancy can go wrong, or the multiple ways that babies can be born with various anomalies. And. They. Don’t. Care.

  26. 26
    tobie says:

    @SiubhanDuinne: can you recall what you wrote about the GA debate? I wanna see it–especially the clever and snarky parts!

  27. 27
  28. 28

    @Schlemazel: Caitlyn has finally been discovering that all her wealth and privilege won’t protect her.

  29. 29
    Amir Khalid says:


    this administration doesn’t understand science.

    Not only that; it is actively hostile to science, especially when the science conflicts with the policies it wants.

  30. 30
    Matt McIrvin says:

    I’ve heard about transgender people having problems getting/using passports. I’m wondering how it’s all going to related to the REAL ID grace period ending in 2020: access to airline flights and many federal services is going to be contingent on having a passport or some ID compliant with the new federal standards. This was bad enough when it was first proposed under Bush, but now that Trump is going to be in office when it takes place, I can see a real disaster looming; they’re going to do their best to exclude as many citizens of unfavored types from having a functional ID as they can.

  31. 31

    And thank you Cheryl for calling attention to this (and the applicable science).

    As I’ve said downstairs, this is part of a concerted effort by the Talibaptists to drive trans people out of public life.

    And yes, Virginia, they have a literal five-point plan for doing so. Most of which they’ve already been busy implementing at both the state and federal levels.

    There’s already six states that make it impossible to change the gender from what listed on one’s original birth certificate — making it difficult/impossible for trans people born in those states to ever get legal ID that matches who they are. Which forcibly outs them, and makes them vulnerable to legalized anti-trans discrimination.


  32. 32
    artem1s says:

    I never was a fan of the ‘you’re born with a sexual identity’ argument as a way to advocate for gay rights. the GOP has a great way of weaponizing whatever they want and using it as an excuse to make people’s lives more horrible. no one should spend a moment trying to define biological gender or sexual preference or gender identity to appease these jerks. the GOP is still trying to legally define people to maintain a class structure. let’s be clear, the intent here is to make sure there is a legal definition of ‘not male’ so Pence and his pals can use their religious bigotry to discriminate against them.

  33. 33

    @Amir Khalid: Some folk are hostile to things they don’t understand.

  34. 34
    Amir Khalid says:

    The Wikipedia entry on sex verification in sports makes sobering reading.

  35. 35
    Amir Khalid says:

    Even more so to being told they’re wrong.

  36. 36

    Speaking of legalized discrimination… #DrivingWhileTrans

    Although as a white trans woman at least she didn’t have to worry about being shot or found hung in her cell.

  37. 37
    cintibud says:

    No comments? Is this thing on?

  38. 38
    cintibud says:

    @cintibud: Never mind – a refresh problem

  39. 39
    Schlemazel says:

    @Smedley Darlington Prunebanks (formerly Mumphrey, et al.):
    hair furor cares for no one and nothing other than himself and his ego. But he is not a complete idiot, he knows this shit will excite GOP voters. This is about exciting the (very, very) base

  40. 40
    Schlemazel says:

    @Dan B:
    Too much opportunity for bad behaviour. Very bathroom, every stall must have a camera and the video has to be fed to monitors just outside the bathroom door, the local police station and the Internet. It is the only way we can be safe

  41. 41
    TheMightyTrowel says:

    @Amir Khalid: Indeed. I always bring this up when I talk in my classes about sex and gender in historic and archaeological populations. Gender testing is of course about policing and defining appropriate womanhood – note that there is no sex or gender testing for athletes who identify as men – they’re believed. There’s all sorts of gender crap about sport as a masculine space and women intruding into becoming suspect by default, but the way this is turned into a judgement on their bodies and the appropriateness of those bodies to conform to a specific gender identity is extremely revealing. Anyhow, it’s a good (often shocking) teaching tool for discussing sex and gender as spectrums and their interpretation as temporally and culturally variable.

  42. 42
    Amir Khalid says:

    If I remember right, there’s a legend (or maybe a historical record) of a woman who disguised as a man to compete in the ancient Olympics; she was found out and executed, and a new rule was made requiring athletes to compete naked. So there was a gender test for men, of a sort, in the old days

  43. 43
    JaneE says:

    This isn’t the first time they have tried to legislate reality. It doesn’t work that way. Pi is not 3, and sea level rise is not limited by legislative desires. Sex and gender don’t work that way either. Still they never learn.

  44. 44
    TheMightyTrowel says:

    @Amir Khalid: I mean… there was a women’s version of the ancient Olympic games…

  45. 45
    Redshift says:


    I think I see your problem here Cheryl, you’re approaching this as a scientist; this administration doesn’t understand science.

    But that’s the point; they claim to be basing this policy on “science.” Yeah, we all know they’re lying, but it’s worthwhile to point out how.

  46. 46
    Amir Khalid says:

    Remember, this administration is led by a man who thinks he knows all about all sciences because his uncle was a scientist.

  47. 47
    NotMax says:

    @Amir Khalid

    Expert on brothels too, if grandpappy is considered. //

  48. 48

    I have to confess that I can’t even think about this right now, at least not properly. I have too many other things already stressing me out right now. Being literally unpersoned by the government is something I simply can’t afford to process until I’ve straightened out the other messes in my life. So I’ve compartmentalised. I’m not going to read about this until I can afford to rage in full. Because I’m going to rage. I’m already completely furious. I’m probably never going to forgive any Trump voters for the rest of my life. I’m going to bear a grudge against them forever, especially Caitlyn Jenner. But I’m waiting to digest this in full until I’ve got some of my other shit straightened out.

    The fact that I can even do this is a sign of privilege, since even though I have a non-binary identity, I can tolerate passing as a rather androgynous but still cis-looking male – the disparity isn’t wide enough for me to find intolerable. My gender identity is close enough to my presentation that people don’t give me a second glance. As a result, I’m spared the literally life-threatening horrors that out non-binary people face on a daily basis. I certainly would not be capable of compartmentalising this if I were out.

    And there you have a major explanation for why non-binary people face mental disorders at a much higher rate than the general populace.

    I will not forget or forgive this. The Trump administration* is filled with monsters, and its supporters are little better.

  49. 49
    Dan B says:

    @Schlemazel: Sounds good especially if we hire experts: Drag Queens! Absolutely! They know how to recognize a fake better than anyone else.

    Haters, think on the thrill of having your privates judged by a panel more exacting than America’s Got Talent. Imagine the fame!

  50. 50
    Dan B says:

    @Matt McIrvin: Danni Askini ED of Gender Justice League fled Seattle to Sweden because of personal threats. Now she’s been informed that if she tries to reenter the US she will be arrested and likely put in a men’s prison.

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