Trump’s executive order about gender is even dumber than simply defining everyone as female. That would at least be coherent, if weird. It defines it as “belonging to the sex” that produces egg or sperm “at conception,” obviously before any gametes are produced. It does not specify how one belongs to a sex so it’s a circular definition as it doesn’t specifically require gametes actually be produced at that point.
The traditional (pre-20th century) understanding of sex is based on being the phenotypic sex associated with the reproductive sex, which would actually mean that an infertile intersex XY cis woman as well as a trans woman who medically transitioned are both female after all. The wording doesn’t preclude this definition, but this is probably not what they meant to intend. This is information the federal government doesn’t have and would require inspection by a physician if they’re unwilling to defer to the states’ judgement on the matter.
Possibly they meant chromosomes, but the EO doesn’t specify that. And it’s unclear which sex an X0 individual belongs to. People with that chromosome configuration don’t produce either gamete so putting them in the category of sex that produces large gametes would require either using another thing as a fallback. Or they could contradict the document’s claim of a strict binary by creating a third category. Chromosomes or phenotype could be the fallback, but it doesn’t specify this and again, it’s information the government (and possibly the applicant) don’t have.
Birth assignment isn’t and has never been based on gametes. Traditionally it’s just external morphology and since the advent of karyotyping sometimes that’s done to break a tie in case of ambiguous genitalia, though at least as often they do coercive “corrective” surgery, literally choosing which gender they think they can raise the kid as (and since gender identity isn’t plastic, this has a high likelihood of causing gender dysphoria).
So this executive order is insisting that all legal documents be based on something. We’re not sure what it is, but whatever it is, it’s information the government doesn’t have and never had. If they avoided greedily including a swipe at reproductive rights with the “at conception” wording, they could have simply based it on natal sex or birth assignment. They could have “left it to the states” and required it to be based on birth certificate, which would screw trans people in states that don’t allow you to amend. Even as it is, they probably can’t stop a first-time applicant who already amended their birth certificate unless there’s some mechanism for various agencies unsealing pre-amendment birth certificates, which would have all sorts of chilling effects for the general public, not just trans people.
The anti-trans gender ideology always produces incoherence, which it then projects on those who support trans rights, as the EO does. They want gender do to multiple things that it cannot simultaneously do. You can make it just chromosomes or you can make it visually ascertainable but you can’t make it both. You can make it immutable or you can make it physiologically and medically relevant for most contexts, but you can’t make it both. Medical transition is biological reality and so is natural variation.
They want to pretend we live in a world where physiology, reproductive sex and birth assignment always correlate and are strictly binary, but such a world has never existed. There are many ways they could make it coherent, but none would not fit their requirements for the make-believe world they want to live in. It’s not simple biological ignorance, it is an ideological mandate that cannot be met.
This parallels the issues with trying to remove birthright citizenship. The way birth records have been kept for the entirety of US history isn’t compatible with requirements for citizenship beyond US-based birth. There are leftovers from a time when citizenship was limited to whites which is bad enough. Birth certificates do not document the legal status of parents, nor does it document chromosomes, gametes or anatomy. It is not documented why a judgment of M or F were made. Birth assignment is a binary (or ternary in some jurisdiction), lossy encoding of the situation better left to medical records. It’s the subway map that these people conflate with the spatial territory.
The government should not, but also in many cases, cannot probe into information it doesn’t have or that might not even exist in any document anywhere. The incoherence isn’t simply a result of sloppy thinking and biological ignorance; the ambiguity is the whole point. By placing everyone in uncertain state and filling the government with regime loyalists, the state will be empowered to harass any individual it wishes to, the situation in authoritarian regimes. Without rule by clear laws, we instead have rule by people with too much power. Anti-trans laws have created many cases of cis people being accused of being trans and so can this.
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