States deny transgender people legal recognition by defining sex
TOPEKA, KAN. >> Mack Allen, an 18-year-old high school senior from Kansas, braces for sideways glances, questioning looks and snide comments whenever he has to hand over his driver's license, which still identifies him as female.
They've come from a police officer responding to a car accident. They've come from an urgent care employee loudly using the wrong name and pronouns. They've come from the people in the waiting room who overheard.
“It just feels gross because I've worked so hard to get to where I am now in my transition, and obviously I don't look like a woman and I don't sound like a woman,” said Allen, who has been on testosterone for two years.
Kansas enacted a law last year that ended legal recognition of transgender identities. The measure says there are only two sexes, male and female, that are based on a person's “biological reproductive system” at birth.
That law and others introduced around the nation this year — often labeled as “bills of rights” for women — are part of a push by conservatives who say states have a legitimate interest in restricting transgender people from competing on sports teams or using bathrooms that align with their gender identity.
Critics argue the proposals to legally define sex as binary are essentially erasing transgender and nonbinary people's existences by making it as difficult as possible for them to update documents, use facilities and generally participate authentically in public life.
They're also creating uncertainty for the many intersex people — those born with physical traits that don't fit typical definitions of male or female — with the measures unclear on how people would prove they're exempt.
Some measures would remove the word gender, which refers to social and self-identity, from state code and replace it with sex, which refers to biological traits, conflating the two terms. Others make gender a synonym for sex. Medical experts say the efforts rely on an outdated idea of gender by defining it as binary rather than a spectrum.
“You pass a law because there's a problem. The medical community doesn't see people having different gender identities or being born with an intersex condition as a problem for society,” said Dr. Jack Drescher, a clinical professor of psychiatry at Columbia University who edited the section about gender dysphoria in the American Psychiatric Association's diagnostic manual. “The medical community can only stand back to say, what exactly are you passing this law to protect?”
Measures have been proposed this year in at least 13 states — Alabama, Arizona, Florida, Idaho, Indiana, Iowa, Mississippi, Missouri, Oklahoma, South Carolina, Utah, West Virginia and Wyoming — and advocates expect that number to grow.
The bills follow a historic push for restrictions on transgender people, especially youths, by Republican lawmakers last year. At least 23 states have banned gender-affirming medical care for transgender minors, and some states are shifting their focus to trying to restrict that care for adults, as well. Others have moved on restroom and sports restrictions.
Many political observers say the Republican focus on transgender people is an attempt to rally a voting base with a “wedge issue” to replace abortion rights, which the public has largely favored, notably in Kansas.
The efforts also worry transgender people and their allies that they're further stigmatizing and threatening a community already at high risk of stress, depression and suicidal behavior.
With the latest round of bills defining man and woman, it's clear “the intent is to make it as difficult as possible for transgender people to operate within a state,” said Sarah Warbelow, legal vice president of the Human Rights Campaign, a large LGBTQ+ rights group.
“It's an attempt to deny transgender people's existence,” she said.
A similar proposal in Iowa put forward by Republican Gov. Kim Reynolds led to protests at the state Capitol.
The bill was introduced soon after the failure of a lawmaker's effort to remove gender identity from the state's civil right law. It would narrowly define male and female and require a transgender person's assigned sex at birth to be listed alongside their gender identity on their birth certificate.
“Women and men are not identical; they possess unique biological differences,” Reynolds said after introducing the measure. “That's not controversial, it's common sense.”