Wednesday, March 30, 2022
Noa Ben-Asher, Gender Identity, The New Legal Sex,
The American legal system is in the final stages of a legal sex change. This Article reveals, names, and assesses a new legal landscape in which gender-identity is gradually becoming the new legal sex. That is, across different areas of policy, law, and regulation, legal sex is now defined in a different way than it was even two decades ago. From legal sex located somewhere in the real or imagined physical body, it is now, for a growing number of purposes, located in the gendered mind. The Article will show that while at the turn of the twenty-first century legal sex was strictly defined as sex designated at birth, usually based on the appearance of genitals, today the trend is towards defining legal sex as gender-identity. For a process that has taken only two decades this is shocking. It is thus no surprise that conservative think tanks appear panicked and are fighting back. It is also no surprise that the target is children and youth– they are the future transgender or non-binary adults. The article examines both the gains of this legal and cultural shift, but also its costs, including (1) medicalization (2) an imposition of a notion of an immutable, inner-true self; (3) vulnerability to epistemic critique of legal and social conservatives; and (4) a commitment to a binary sex system.