Two legal sexes aren’t enough: Why governments should recognize non-binary bodies and identities

By Lal Zimman

Virtually every form we fill out that serves to identify us – whether administered by governmental, educational, medical, economic, or social institutions – asks for sex or gender. In most cases, the only recognized options are female and male. Thanks to the work of intersex and transgender activists, there is increasing recognition that individuals may possess bodies and/or identities that fall outside of the normative categories of female and male. However, governmental and legal institutions largely remain resistant to official recognition of non-binary sexes or genders, instead requiring all citizens to be categorized as female or male despite the well-documented diversity of gender and sex. This resistance can be seen in recent cases in which governments have rejected bids to create a third legal sex category, as France did last month and Germany did in 2016.

To many people, the concept of legal sex seems like an intuitively obvious system that reflects information about an individual’s identity. This sense of intuition, however, comes from the naturalization of biological sex as a simple binary, when in fact it is a complex web of characteristics that can be aligned in many different ways. The notion that there are only two sexes relies on the erasure of intersex bodies, i.e. those that show distinctive or ambiguous physiological characteristics that are neither normatively female nor normatively male. Such erasure happens culturally – by pretending intersex bodies don’t exist – and medically – by operating on or removing ambiguous organs so that a child’s body appears more normatively female or male. The insistence that there are only two sexes is simply not supported by the observation of biological diversity among humans.

Christopher Hutton a scholar of language and the law, has argued that legal sex presents itself as a descriptive category, but in practice serves normative functions.1 In other words, we are meant to think of legal sex as simply reflecting a natural, universal reality in which every individual is obviously and unproblematically female or male. Ultimately, however, one’s assignment to a legal sex category creates both restrictions and obligations in terms of access to spaces, activities, and even other forms of recognition – as when states restrict allowable names based on legal sex.2

Gender_neutral_bathroom_sign
By sarahmirk (Own work) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)%5D, via Wikimedia Commons

Someone whose identity documents are seen as being “in conflict” with their sex, gender identity, or gender expression can face numerous, and often quite serious, consequences. They may be unable to travel freely; unable to access safe and appropriate housing, shelters, medical care, or public facilities like bathrooms; unable to access certain spaces where identification is required for entry, like venues where alcohol is served; unable to engage in certain kinds of commercial transactions, such as using a credit or bank card or purchasing goods that require proof of age; and at particular risk during interactions with the state such as being pulled over or detained by police, being jailed or imprisoned, or navigating immigration systems. Someone whose identification outs them as trans, gender non-conforming, or intersex may routinely have to choose between personal safety and taking part in everyday, life-sustaining activities. Some may be unable to publicly articulate that identity at all because of the risks involved.

These points are often used to support the argument that transgender people shifting from one binary gender role to another should be permitted to change their legal sex, ideally without medical requirements such as hormones or surgery. But this logic applies with at least as much force for those living outside of the sex/gender binary all together.

In most cases, legal sex is, indeed, formulated in terms of sex – that is, physiology rather than social identity. In places where legal sex can be changed at all, individuals are generally required to alter their bodies in dramatic ways, including sterilization, in order to gain access to a new legal sex.3 The key assumption here is that biological differentiation is more important than social differentiation, and that the state is in the business of categorizing people on the basis of sexual phenotype rather than social identity.

Given how important the body is for arguments about legal sex, it is particularly striking when states refuse to acknowledge intersex individuals, who are born with bodies that cannot be straight-forwardly categorized as either female or male. If legal sex is supposed to reflect biological difference, and we know that intersex bodies exist, why are the differences between intersex bodies and normatively female or male bodies not worth capturing? What danger is there in recognizing the full range of what nature provides? How can we justify burdening this population – or any population – by denying them identification documents that match their bodies, identities, or presentations?4

Surely the key to answering to this question is the fear that legal recognition might reveal other cultural gaps, creating a demand for greater social, as well as legal, awareness and affirmation. If a state accepts that intersex bodies exist, and that they are not simply malformed versions of female or male bodies, how can it justify the non-consensual modification of those bodies in order to fit the binary system? How can educational institutions insist that only two genders exist, both through the way students are treated and in the material they are taught? How can trans people be denied the right to change their documents or required to achieve a certain degree of physical conformity in order to do so if the law recognizes that gender is more complicated than we’ve been led to believe? And if those with indisputably non-binary bodies can be recognized as legally different from non-intersex people, how can the state refuse to acknowledge those with non-binary identities, who are as deeply affected by lack of proper documentation as any other trans or intersex individuals?

The primary issue here is what role states will take in the transformation the gender binary is undergoing. While purporting to remain neutral in the face of radical social change, governments who perpetuate binary systems for assigning legal sex actively erase intersex bodies and delegitimize trans identities. The creation of more categories is not an instance of governments creating or pushing for social change, but rather reflecting the reality already occupied by many of the people it purports to serve. Legal sex has real consequences for individuals, and reforming it is a matter of safety, of equal participation in public life, and of individuals’ access to legal recognition and dignity. As long as legal sex exists, we need more than two categories.

Lal Zimman is an Assistant Professor of Linguistics and Affiliated Faculty in Feminist Studies at the University of California, Santa Barbara. He is also General Editor of Oxford University Press’s Series in Language, Gender, and Sexuality. His research is broadly focused on the linguistic practices of transgender speakers, in which he employs
a range of qualitative and quantitative methodologies. He has published on the homonormativity of the coming out narrative genre (Gender & Language, 2009), the construction of biological sex in trans men’s use of gendered body part terminology (Queer Excursions, 2014, Oxford; Journal of Homosexuality, 2014), and the complex role of embodiment in the acoustic characteristics of the voice (Journal of Language & Sexuality, 2013; Language and Masculinities, 2015, Routledge). In 2014, he published a co-edited volume, Retheorizing Binaries in Language, Gender, and Sexuality with Oxford University Press.

1 Hutton, Christopher (forthcoming). Transgender jurisprudence, legal sex, and ordinary language.  In Evan Hazenberg & Miriam Meyerhoff (eds.), Representing Trans. Wellington, New Zealand:  Victoria University Press.

2 Several countries limit names for infants so that they are “gender appropriate,” including Denmark [link: http://www.cnn.com/2010/LIVING/07/03/mf.baby.naming.laws/index.html%5D, Iceland [link: http://www.npr.org/sections/thetwo-way/2013/01/04/168642200/a-girl-fights-to-be-called-by-her-name-in-iceland-suing-government%5D, and Hungary [link: http://www.nytud.hu/oszt/nyelvmuvelo/utonevek/%5D.

3 See, for instance, Lee, R. (2015). Forced sterilization and mandatory divorce: How a majority of Council of Europe member states’ laws regarding gender identity violate the internationally and regionally established human rights of trans people. Berkeley Journal of International Law 33(1):114-152.

4 I am being intentionally broad here in speaking of bodies, identities, or presentations out of recognition that not all intersex people want their intersex status reflected in their legal sex. Individuals should be able to choose which legal sex category will make them safest, affirm their dignity, and allow them to participate fully and comfortably in social life. For some, that means using a non-binary sex category.

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