Wednesday, March 15, 2023

Transforming Legal Determinations of Sex from Biology to Gender Identity

Noa Ben-Asher, Transforming Legal Sex, NC L. Rev (forthcoming)

Legal Sex in the U.S. is in the final stages of a dramatic transformation. This Article begins by charting this transformation. By “legal sex” this Article refers to various instances in which legal authorities engage in defining an individual’s sex, either directly or indirectly. Until around mid-twentieth century, legal sex was mostly understood as immutable sexual difference between males and females that is biologically determined prior to birth. Groundbreaking scientific and medical theories in the 1950s introduced gender identity as a new way to describe an internal sense of being male or female. Since then, in slow steps, this concept has been integrated into various areas of law and policy. Today, the overwhelming trend in U.S. law is toward defining legal sex as gender identity, defined as “an individual’s own internal sense of whether they are a man, a woman, or nonbinary.” While there is not one coherent definition of sex across all areas of law, this Article observes that the trend across these legal domains, including sex reclassification laws, antidiscrimination laws, and family laws, is clear: the legal system is shifting towards gender identity as the primary indicator of legal sex.

This Article demonstrates why it is urgent to name and evaluate this phenomenon. As of 2023, lawmakers and politicians, as part of the ongoing “culture wars,” have introduced and passed hundreds of bills and policies that target transgender children and adults by undermining the centrality of gender identity as a core characteristic of legal sex. These laws and policies limit access of transgender individuals to locker rooms, restrooms, sports, gender affirming care, and antidiscrimination protections. They all reject the primacy of gender identity and call instead for narrow notions of immutable “biological sex” that is fixed at birth. This Article situates the current backlash against transgender people as an attempt to roll back laws, policies, and societal norms that view gender identity as the primary indicator of sex. The Article proposes that feminists, advocates on behalf of transgender people, and allies engage current debates about gender identity and transgender rights not only through the lens of medical science and the liberal principles of equality, liberty, and autonomy, but in addition, by insisting on the moral desirability of future generations of transgender people.

Gender, LGBT | Permalink


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