A few hours after taking the Oath of Office on Monday, President Donald Trump issued an executive order purporting to redefine “male” and “female” by fiat.
The order, with the cumbersome title “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” instructs all executive agencies—including those governing education, health, housing, and employment—to use new definitions of “male” and “female” in every aspect of their work:
(d) “Female” means a person belonging, at conception, to the sex that produces the large reproductive cell.
(e) “Male” means a person belonging, at conception, to the sex that produces the small reproductive cell.
The order is scant on details about how the new definitions will be applied, nor does it explain how sex will be measured for the policy purposes it does outline, such as determining which gender marker appears on a person’s passport or separating incarcerated people by sex. But the lack of specificity in no way limits its potentially dire consequences for transgender people, who face extremely high rates of discrimination and violence, including sexual violence in prison. Having a passport that matches one’s gender identity or expression, for instance, is a crucial safety measure when applying for jobs, crossing a border, or even showing ID in a grocery store line.
Yet Trump’s new sex definitions affect not only transgender people, whose gender identity will no longer be acknowledged by executive branch agencies, but also everyone else who may soon find themselves classified according to whether they were destined at conception to produce an egg or a sperm.
“The potential implications and scope of this executive order are limited only by our imagination,” says Kellan Baker, executive director of the Whitman-Walker Institute for Health Research & Policy, a leading LGBTQ health organization. “It seeks to define women according to the functions of their bodies, and regulate how all people, not just transgender people, move through the world and their interactions with federal government entities, or federally supported entities.”
For one thing, lawyers fighting for the rights of pregnant people say the executive order’s definitions of male and female advance an anti-abortion agenda by defining sex as starting “at conception.” This is the language of “fetal personhood“—a favorite theory of the anti-abortion movement that maintains an embryo is a person with full legal rights from the moment of fertilization when egg meets sperm. The theory has been used in efforts to end access to IVF, prosecute people who have miscarriages for manslaughter, and ban certain forms of birth control.
“This executive order is essentially a Trojan horse for embryonic and fetal personhood,” says Kulsoom Ijaz, senior staff attorney at Pregnancy Justice. “They are smuggling this ideology into federal policy. By defining a male or female as a person starting at conception, this administration is normalizing the extreme notion that embryos, even fertilized embryos, have the same rights as you and I.”
Agencies have been ordered to report back on their progress in implementing the new sex definitions within 120 days. Much remains unknown about what policies they’ll produce, whether they’ll target pregnant people as well as trans people, and how the courts will rule on the various legal challenges sure to be filed each step of the way.
But to begin to understand the vast potential consequences of the White House’s new definition of sex, I wanted to start with the basics. So I called Kathryn Clancy, a biological anthropologist at the University of Illinois Urbana-Champagne, whose research examines the biology and culture around menstruation, pregnancy, and sexual harassment—topics all founded on a scientific understanding of sex, and the differences between us.
Let’s start with a straightforward question: How do scientists define sex?
There is no one definition of sex. For scientists, the way you might choose to define it can and should vary based on your research question. Some people will define sex around gamete size—do we produce larger gametes [eggs] versus smaller gametes [sperm]? That means there are more than two groups, because where do we put people who don’t produce gametes?
Then there are sex chromosomes. It’s not just XX and XY. There are a whole bunch of categories. Another one that people look at is neurotypicality. [Some] say there’s such a thing as a male brain and a female brain, and you’re going to get way different boundaries on those sex categories. One definition that is starting to shift right now is around typical hormone ranges. [For instance, people with] polycystic ovary syndrome can end up having androgen levels that are very different from those of most people that we might put in the sex category of female.
Genitals aren’t one of the common ways of defining sex. But the problem we come across is we often collect information on sex with a little form that says, “What sex are you?” What that’s typically asking a person is not “What’s your gamete size? What sex chromosomes do you have? What hormone levels are typical for you?” It’s asking about sex assigned at birth—a completely different way to measure sex that is based on baby genitals.
OK, so how good a proxy are baby genitals for all these other ways of measuring sex?
It doesn’t work for lots of people. If I had to hazard a guess, I would say several percent. There are lots of intersex conditions that, because of some developmental differences or chromosomal differences, a person’s genitals might appear very clearly within the realm of what we’d call female genitalia or male genitalia, and that person might have other sex categories that don’t fit.
As you know, the new executive order defines two types of people, female and male, by whether, at conception, they will produce a sperm or an egg. Does this mean they’ve picked one of the measures—gamete size—as the way to measure sex?
Yes. But the way it’s worded is really confusing because you’re not producing any gametes yet at conception.
So how would anyone know whether an embryo belongs to a sex that produces eggs or sperm at conception?
Anti-abortion rhetoric defines conception as happening at fertilization. [The American College of Obstetricians and Gynecologists, the leading US authority on reproductive health, defines “conception” as happening when a fertilized egg implants in the uterus.] We’re not even a multi-celled embryo yet at fertilization. At that moment, does an embryo have sexed chromosomes? Yes. Are they knowable with our current technology? No. In IVF, for people who do pre-implantation genetic testing, we typically wait until at least day three, if not day five, until the sex chromosomes are even measurable. And is it a point at which the embryo is even producing gametes? No. That’s still months away.
But the executive order says these definitions should be used to determine which sex marker should go on a passport, or whether a prisoner should be incarcerated in a men’s or a women’s prison.
This is what’s so stupid about it, but also what’s so dangerous. What is the enforcement plan? Are we going to test people’s gonads to see what type of gametes they produce? Because if the obsession is at the level of gametes, the tests are much more invasive than a sex chromosome test.
Nor will there be an actual way to logically enforce it, because it’s an illogical order. I think what will happen is it will be basically about punishing people in the worst way possible, treating people as poorly as possible, and creating as much discord and mayhem as possible.
“I think what will happen is it will be basically about punishing people in the worst way possible, treating people as poorly as possible, and creating as much discord and mayhem as possible.”Kathryn Clancy, a biological anthropologist at the University of Illinois Urbana-Champagne
normal
This is mostly going to be around one sex category: The female sex category. They will only be doing this towards anybody who might fall into the woman category or might self-report as being in the woman category. I think Trump, in whatever terrible language is available to him, is trying to control women and control people he perceives to be in the woman category. A lot of this is keeping the category of women pure—and also, obviously, about doing immense harm to trans people.
There’s also a very racial, white supremacist thing going on here with this “defending women.” It’s a very old idea—it appears in travelogs, early writings of Europeans, as well as in the United States when they started encountering North American indigenous folks, and the way that they thought about enslaved peoples. There was this belief that in the “lower races,” men and women were less different and that in the “higher races,” there were more differences between women and men. This was about saying men and women are differentiated, clear, non-overlapping categories because that makes us a more evolved people.
The title of the executive order describes it as “restoring biological truth to the federal government.” The idea seems to be that if we could just look at someone’s physiology or their cells, we can put them in the male or female bucket, and that’s what matters for policy purposes. But the way you’re describing the real “biological truth” sounds way more complicated.
It is. That’s not to mention the fact that most people are at least a little mosaic, meaning that when we’re formed as embryos, we often have some funky cells in there, and some of them persist. Depending on how someone collects cells from you, they could get different DNA and sometimes even different sex chromosomes. [Some people are] chimeric, which is when you have the cells of another person: either a vanishing twin or your own offspring. If you have ever been pregnant, DNA from the embryo or fetus breaks off and enters our circulation and embeds in our tissues all over our body for the rest of our lives.
Hang on, so someone who gives birth to a child with XY chromosomes will have XY cells in their body that show up in testing?
They’re in your blood during the pregnancy. Then, for the rest of your life, they go and find cool places to hang out. They live in your brain. They live in your liver. They’ve been found in every tissue in your body.
You wrote in American Scientist that many scholars have ditched a sex classification system based primarily on gametes. Why is that?
Some people will never produce a gamete. Intersex people are one clear example. There are some intersex conditions where, developmentally, you are not making organs that are going to lead to gamete production. So what is the sex category of a person who does not have organs, does not have gonads, that will lead to any type of gamete production?
Another example is infertility. The reason I know so much about IVF is my husband is a two-time cancer survivor. He doesn’t make sperm, and he probably hasn’t since he had radiation when he was one—which is not even when you’re making sperm yet. His sex category, I’m pretty sure, would be comfortably considered male across a couple of different axes. But no gametes. So, what sex category does he fall into?
Reporting on the rise of anti-trans politics, one of the arguments I often hear from conservatives is that intersex people can just be considered male or female, part of the binary, just with something gone “wrong.”
I think it’s weird and unfortunate that we’d call these developmental and chromosomal differences “wrong,” as opposed to interesting and beautiful human variability. A lot of people talk about the social construction of gender, but sex is also socially constructed. We’re seeing it take place right now with these executive orders, where they are trying to impose their own definition—an ahistorical, a-scientific definition of supposedly a scientific phenomenon. You see the same thing with “intersex.” Folks who we now put in that category have always existed, but we didn’t always have a name for that category.
As a biological anthropologist—someone who considers not just physiology but the meaning we make of it—what was your reaction to the executive order defining male and female?
The scientist in me is in disbelief at how stupid it is. How can you so fully misunderstand basic human biology, and then legislate about it?
My next reaction is just incredible distress. There are some very intentional wordings here that are completely untethered from reality but clearly are signaling particular things: Protecting the purity of the female category and trying to lay claim to personhood and sex as early in the existence of a human as possible. That really says something about how big a step this executive order is trying to take—they’re trying to make it as all-encompassing and as absolutely draconian as possible.
The word I keep thinking of is constricting. We have all this variety, all this diversity, whether it’s in our hormones, chromosomes, genitalia, gametes—and yet it’s all sort of shoved into one bucket or another. And our destiny is based on that bucket.
When you try to define a person at the stage of a fertilized egg, and you think you’re doing them a favor by defining their personhood and sex early, what you’re actually doing is stripping them of all the potential and possibility of what their life might be.
There’s this term in life history theory called the “reaction norm.” Take height for example. Your height is at least 50 percent heritable, and then there are all sorts of things that are going to happen in your life, choices—exposures, eating, exercising, that then play a role in what your final height is. The reaction norm is that full range of variability—the full possibility of what your adult height may end up being. What they’re trying to say is, “No, I’ve already said your adult height is 5’10”.”
Maybe for height that doesn’t matter so much, but when it comes to gender, or gender expression, or sex, or any number of other categories that vary over time and have all sorts of different political and personal meanings, to be prescriptive that early is to rob them of the chance to learn enough about themselves, to decide who it is they want to be, and where they are going to fit along that full range of who they might turn out to be.
