What is a Woman II: Let's Complicate Sex
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Well folks, it certainly has been a week for people concerned with the intersection of trans rights and religion. If you follow this blog you’ve seen my takes there at the beginning of the week, if you’re new, go take a look at my last two posts to get caught up, or not, you don’t necessarily need that background to understand my latest Hot Take of the Week.
Since this all popped off, I’ve been working through what the conflict actually is about. Most of y’all know that I hold firmly to my position that Coyne and Dawkins and co. are on the anti-trans grift through a combination of refusal to recognize the role that Imperial Christianity plays in their understanding of gender, as well as a general grasping at straws to stay relevant. But I also want to approach the issue with compassion and empathy, at least for the well meaning people who side with them because they trust their expertise. Stopping for just a moment to consider what the argument might look like if there is a genuine misunderstanding of my work, my mind has kept wandering back to the word “sex” and the frameworks we’re using to discuss it.
I’m a lawyer, with a background in political science, legal/political theory, and theology. Everything I write, everything I do, is always going to be through that very particular and wiggly lens. So of course when I’m thinking about categories like male/female, man/woman, etc., my energy is primarily focused on what the function of the categories are to begin with. And the more I think about it, I think that is a major, if not fundamental difference, in how lawyers approach this type of categorization compared to biologists. Very generally speaking biologists are not necessarily concerned with the social function of a given category, which is fine, that’s not what they’re trained to do. But I think that’s where we get this conflict regarding definitions of sex/gender, because we use the same language for two different, but interrelated concepts.
I want to pause just for a moment to clarify that I am not retracting my previous statements in the original “What Is a Woman” blog that caused this conflict (although I’m sure that some people will try to read it that way.) First of all I never conflated sex and gender. I will keep hammering that home because that claim keeps floating around as a way to discount my work.
The original blog was meeting conservative legislators where they were at, using their own arguments and claims about biological sex categorization to point out its ineffectiveness in a legal/policy context. It was thoroughly based on my own experience doing boots on the ground work in legislatures across the country. Instead, this is an expansion. I’m taking this time and opportunity to further discuss the terminology and frameworks to push the discussion forward instead of getting into the same base level arguments about “sex” being different from “gender” and what that means. I’m calling this “What is a Woman II” less because I want to attempt to answer the question, but because I think it is exploring the same general framework I was just barely beginning to articulate in that first piece.
That all being said, hold on to your hats for what I’m about to say.
“Biological” sex, “legal” sex, and gender are three different, though overlapping categories.
What we have been trying to discuss throughout this conflict as a matter of two categories is actually three, but we use the same word for two of them. Now I’m sure I am not the first person to make this distinction. Many gender scholars over the years have pointed out that much of the meaning we place behind sex is socially constructed. But outside of the world of gender scholarship, this concept can seem nonsensical, or a form of science denialism, which is why I wonder if it makes sense to point out the distinctions as being “biological” vs. “legal” at least for the purpose of trans rights.
“Biological sex” as I am considering it for this argument, refers to the sex category your body falls into based on chromosomes, outward presenting sex characteristics, and yes, even gametes Dr. Coyne. Most humans fall into one category or the other, male or female, but there is plenty of medically documented variance, which fall under the intersex umbrella. This categorization is real, and does matter for things like medical care, and is not technically changeable. (I say technically, as some people learn that they have an intersex condition later in life, so while their sex did not actually change they do experience a psychological change in their self-perception.) Most people will never have to consider their biological sex in great detail, because it does not conflict with their gender identity, and are not intersex. But if you never have a medical event that would require some kind of chromosomal testing, you probably will never know your biological sex with 100% certainty. (As an aside, many, but not all trans people do get tested for intersex conditions before starting hormone replacement therapy as HRT can sometimes uncover intersex conditions that were previously asymptomatic. That seems to depend on the doctor, but was the standard practice of my own physician when I started testosterone back in 2021.)
Overlapping with both that and our third category of gender is “legal sex” or what you might often see referred to as sex/gender assigned at birth, and the main focus of this essay. This sex category is the one you find on your birth certificate, driver’s license, etc. For governmental purposes you are, in some states, either “M” or “F”, with an additional third “X” category for adults in states where it is made available (speaking from a US legal context at least.) It’s most often based on what genitals are identified at birth, with the exception of intersex individuals whose condition is apparent at birth, in which case parents and doctors typically choose one category or another based on a variety of factors, and then pursue surgical interventions to align with that choice. For the majority of people this is going to align with their “biological sex” though, again, they likely will never know for certain without medical testing. The government tracks this information for demographic and identification purposes, and there are real consequences when your gender identity and legal sex do not align, which is why it is changeable. Back in October of 2024 I wrote a piece for Freethought Now titled “The gender marker problem” outlining some of those issues and arguing for the elimination of sex/gender markers from documents like state IDs and driver’s lisences.
As I noted in that previous piece, recorded sex as a civil legal category, at least in the way we understand it now, is a relatively new phenomenon in human history. Kit Heyam mentions in the introduction to their book “Before We Were Trans,” registering births, and by extension, gender assignment, with the civil government didn’t even begin in England and Wales until 1837, and didn’t become compulsory until 1875. Prior to that point in time, the recording of births was primarily the domain of family records and religious institutions, in large part because those houses of worship were the largest community centers with the infrastructure for recording those details on the local level. If you don’t believe me, go do a geneology hunt and see when the records start shifting from civil birth certificates to census records and baptismal certificates.
Now that’s not to say that those early records and recording of sex assigned at birth had no social or legal impact. People, especially women, were deeply limited by the societal expectations associated with one’s assigned sex at birth, and there were significant legal and social consequences for being discovered as trans in the past. But prior to the strict governmental recording of sex assigned at birth, the legal approach to gender relied much more on informal reporting than documentation from birth in a centralized database like we have now. Similar to how once upon a time you could just pick up your life and start from scratch in a new place with a new name with relative ease compared to today, you could do the same with your legal sex. Legal processes for changing your legal sex could even be as simple as community consensus.
In my own research of the lives of trans people in rural America over the years, I’ve come across many stories of families learning that one of their children was trans, and simply going with it. Those stories usually go something along the lines of “X said that she was actually a boy, and her parents said alright, and they had a son instead of a daughter, and that’s just how it was” (or vice versa.) From there they were recorded on census paperwork and family records as their new name and gender. While this of course was not how it went for all historical trans people, there simply was no standard procedure for your sex/gender status to change in the eyes of your community or the law.
Even now there isn’t really a standard procedure, as it varies from state to state, and now in a new era of legal transphobia laws are rapidly changing. Some states require proof of genital surgery, while other states simply require a doctor’s statement, and others will not allow trans people to amend their birth certificates/gender markers at all. Some states also have different standards for name changes than they do gender marker changes, even if you’re changing them for the same reason. Two trans people with similar gender journeys can have completely different outcomes for their “legal sex” based on nothing other than what state they were born in. That’s how arbitrary “legal sex” is compared to “biological sex.”
Legal sex has very real consequences, especially when your legal sex does not align with your gender. Prior to same-sex marriage equality, many trans/cis straight couples ran into trouble in attempting to get married because on paper they were considered a “same-sex” marriage. Access to these marriages varied wildly from state to state based on whether a state required the birth certificates in order to obtain a marriage license, and if the validity of said marriage was challenged for one reason or another. This likely will become a concern again as we face down the barrel of a possible overturning of Obergefell in the coming years, and the mess that has been created by some states reversing name and gender marker changes for trans people, or that never allowed it to begin with. Access to the polls is also impacted by legal sex. While technically speaking gender marker is not a valid legal reason to turn someone away at the polls so long as they match their photo ID, poll workers have been known to do so regardless. Even when given access to a provisional ballot as an alternative, this still inhibits access to the right to vote, as evidenced by my home state’s failure to count any of the 300 provisional ballots cast at the Indiana University on campus polling place. This can have real impacts on elections, especially when politicians are increasingly attempting to run on anti-transgender platforms. Even the right to make basic purchases, like that of certain medications, alcohol, spray paint, certain adhesives, nicotine products, cannabis, and others can be denied if a cashier takes issue with your ID, as often occurs when your legal sex does not match your outward gender presentation.
There is also the risk presented by interactions with law enforcement when your legal sex does not align with your gender presentation. Interactions with law enforcement are risky, and no matter how much of a law abiding citizen you are, it will probably happen at some point in your life. If your gender expression does not match the information on your ID, and you are therefore outed, you’re at an increased risk for violence. Transgender people face a significantly increased risk of violence in police interactions, with Black and Latina trans women being the most vulnerable. This is a major area where race and gender issues intersect. BIPOC individuals already contend with an increased assumption of criminality in police interactions, and this is compounded by the assumptions made about trans people being deceptive. In a situation where an officer views transness as inherently suspect or an indication of other criminal activity and decides to use physical violence, a person’s legal sex could mean the difference between life and death.
None of these incredibly common ways legal sex appears impacts our lives have anything to do with our biological sex, other than the fact that most people have identical biological and legal sexes. There are some social situations in which biological sex does matter, such as sports, I am not denying that, but that does not present a compelling case for preventing trans people from competing as their identified gender/amended legal sex when applicable.
All it means is that it is prudent to have guidelines for when trans people can compete as their gender, which most sports leagues at all levels have had without government interference. Most leagues require trans athletes to have undergone medical transition, namely HRT, for one to two years before they can register to compete as their gender. This is based on studies that have shown that after two years of hormone replacement therapy the difference between a trans athlete and their cisgender counterpart is negligible if not nonexistent. The Canadian Center for Ethics in Sport has noted in a recent literature review that much of the recent biomedical scholarship that states otherwise have major issues in methodology, sample sizes, and concerning financial backing from biased sources, something else I have pointed to frequently over the years. Their review showed that when taking those concerns into account, while the study of transgender athletes is limited, there is very little biomedical or sociocultural evidence to support excluding post transition athletes from competing within their gender identity. Looking at every transphobe’s favorite athlete, Lia Thomas as just one example, you do see that in her final years competing in the men’s division her placements were low, but that is due to the fact that she was competing in the men’s category while on HRT. When looking more critically at the data we see that across the same distance, her top time in the men’s division pre-transition was 10 seconds behind the men’s record, while post-transition her top time was 10 seconds behind the women’s record. While yes, she has won some races, she did not, as some people claim, start dominating the women’s competition, and there is no logical reason why a cisgender athlete would go through the social and medical hurdles of transitioning just to get, at best, a minor advantage in sports (nor would any reputable medical professional allow it). Transition standards do not invalidate the idea that transgender people are the gender they say they are, they’re just a qualification standard, the same way that there are plenty of other eligibility requirements surrounding age, substance use, and other factors to ensure fairness.
There’s also no reputable evidence that indicates that someone’s legal sex being contrary to their biological sex presents a risk of violence in so-called “women’s spaces” like public restrooms, locker rooms, domestic violence shelters, and other sex-separated spaces like jails/prisons.
In 2018, Sexuality Research and Social Policy published a study comparing safety and privacy crimes in public restrooms in different Massachusetts localities with and without public accommodations laws protecting the rights of trans people to use the restroom that aligns with their gender identity. This study found that there was no statistical difference in the rate of such crimes when trans people were legally able to use the restroom, and also noted that sexual assaults in public restrooms, locker rooms, and changing rooms are exceedingly rare — one of the least common types of violent sexual crimes, in fact. Since then there has been no reputable data to suggest that this peer-reviewed, transparent study is an outlier
According to the National Sexual Violence Resource Center, trans and nonbinary people are significantly more likely to experience sexual violence than our cisgender counterparts. According to research conducted by the center, nearly half of all transgender people have experienced sexual assault in their lifetime (compare to overall stats of 18 percent of women and 1.4 percent of men). Trans people were also less likely to receive equal treatment from police and rape crisis centers. Data also shows that there is a correlation between bathroom bans and rates of harassment and assault experienced by trans people, and in particular trans youth. According to a study done by the National Institute of Health, trans youth aged 13–17 who attend schools that prevent them from using the restroom or locker room that align with their gender identity experienced higher rates of both sexual and nonsexual assault and harassment.
Sexual assault and domestic violence advocates have debunked the “bathroom predator myth” for years, noting that transgender people are more likely to be the victims of violent assaults in public bathrooms, rather than the perpetrators. There is no evidence to back the idea that allowing transgender women to serve as counselors in domestic violence shelters or other therapeutic settings, for example, are likely to harm their patients. Anecdotally speaking I can tell you that as someone who has been in therapy on and off for two decades now, I’ve never once thought about my therapist’s genitals, nor has my therapist ever brought it up. If that were to happen, my therapist being trans would be the least of my concerns.
Similarly claims that housing incarcerated trans women in women’s prisons puts female incarcerated people at an increased risk of sexual assault have no reputable data to back it. Sexual assault does occur in women’s prisons, contrary to popular stereotypes, but there is no significant evidence that shows a correlation between gender identity and the likelihood of committing sexual assault in an incarceration setting. Once again, it is actually the very people opponents see as a threat that are most at risk for sexual violence when policies do not permit them to be housed as their identified gender. Incarcerated trans people have the right to protection from sexual violence, as well as access to gender affirming care under the 8th Amendment’s protection from “cruel and unusual punishment” yet that protection is rarely enforced, an issue that is not unique to trans people in the prison industrial complex. Acknowledgement of the difference between legal and biological sex does not solve this issue completely, but is a step towards progress, and certainly does not create more problems.
Legal sex, in many states, is changeable, and I argue should be changeable across the country, because of the complications outlined above, and because of the functional purpose it serves surrounding the collection of demographic/population information. However I do think there are better, more functional approaches to the concept than what we currently have, including limiting what documentation requires the display of legal sex markers. While I have yet to come up with a name for this category that does not create confusion with biological sex, or our next category of gender, on a purely functional level I feel it is absolutely sensible to consider this its own, though overlapping category from the other two.
Finally, our third category, which also overlaps with the previous two categories, is gender. Gender in this framework, is a person’s internal self-identity in the cultural context that they live within. Like the previous two categories, most, but not all people’s gender aligns with both their biological and legal sex. This is the most social of the categories, as most people are not checking the IDs of random strangers on the street, or even their friends and relatives. It is a category that can only be determined by the individual for themselves, though they may seek support in that process from friends, family, therapists, and other medical providers. As the most social category, it is also the most fluid, and incredibly dependent on a given culture’s approach to gender. As I noted in the original “What is a Woman” blog, different cultures in different places throughout history have had different numbers of recognized genders beyond the man/woman binary. A person’s understanding of their gender can change at different points in their life without invalidating their previous understanding, while other people might experience a stable gender identity throughout their lives. Our gender identity, in relation to both our biological and legal sex categorizations, informs how we navigate the world, interact with others, how we understand our romantic and sexual attraction, and any innumerable other life experiences.
There is a biological component to gender, as there is evidence to suggest a genetic component to transness, and studies of brain scans have shown greater structural similarity based on gender identity than biological sex.
That being said, I don’t think it is strictly necessary to have a biological explanation for gender, as fascinating as those explanations are, to validate it as its own functional category. Gender variance as a socio-cultural phenomenon has been recognized for centuries without any need for medical explanations, and humanity has yet to collapse. There is no real functional role that a biological explanation plays in terms of what the distinct label of gender actually does when we look at how society is organized, especially from a legal and political viewpoint. From this perspective, trusting the individual ability to explore and self-determine gender is a matter of allowing both individual and collective liberty. Reducing the nature of woman/manhood to mere reproductive capacity has historically lead to greater oppression and reduction of status for women, as women have their value couched in their baby making ability first, rather than their personhood. Gender being viewed as a separate, socio-cultural category, allows all individuals, whether cis or trans, to define what their gender experience means to them. It prevents womanhood from being watered down to genitals or lipstick and dresses. It also prevents manhood from being watered down to stereotypes of aggression, sexual dominance, and emotional repression. Individual gender determination liberates the collective from harmful sex stereotyping.
It is also a much needed psychological vaccination against fascism, which typically weaponizes biological essentialist approaches to gender to reinforce hierarchy. As I’ve written before, when a given society accepts that the government can determine what a person is allowed to wear, how they dress, and how they are addressed, that society also tends to accept oppressive government dominance over other facets of life, and allows for increased intrusion into our homes, doctors’ offices, bodies, and every aspect of our lives.
Is this a perfect framework? No. It’s gooey and messy and overlaps in all sorts of ways that make fully understanding it incredibly complicated. But I think it’s as good a start as any, especially as we continue to fight for the evolution of legal and political structures that better reflect people's lived experiences, and yes, medical science, over the cultural influence of Imperial Christianity. I’m sure I’ll revise and revisit this framework over the years as I continue to research, learn, and receive feedback. But that’s the beautiful thing about this kind of work. Every time I revisit it, I get a little bit closer to figuring out a system that can be leveraged to build a better world for everyone.
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Kat (they/them) is a queer lawyer, activist, and theorist focusing on the intersections of law, queerness, religion, and politics, with the occasional bit of theology, political theory, and legal theory thrown in for good measure. Originally from rural southern Indiana, Kat earned their B.A. in Political Science in 2019 before continuing on to earn their J.D. in 2022, both from Indiana University- Bloomington. A former Equal Justice Works Fellow for the Freedom From Religion Foundation, Kat has spent their professional career fighting for the separation of church and state and LGBTQIA+ rights. Outside of work you can find them at a ballet or contemporary dance class, sipping on dirty shirleys at their local gay bar, or playing video games with their cat, Merlin.