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ANALYSIS: When Did ‘Assigning Sex At Birth’ Become A Debatable, Controversial Issue?

ANALYSIS: When Did ‘Assigning Sex At Birth’ Become A Debatable, Controversial Issue?

A CNN story claiming there is no “consensus criteria for assigning sex at birth” published in late March sparked backlash, highlighting an issue that has gone from a marginal political interest to a concern of the White House and state-level legislation within the past 20 years. 

The story was about Republican South Dakota Gov. Kristi Noem’s battle with state lawmakers over H.B. 1217, a bill that seeks to ban biological males from women’s sports.


“It’s not possible to know a person’s gender identity at birth, and there is no consensus criteria for assigning sex at birth,” CNN breaking news reported Devan Cole wrote, without attribution.

The story further noted that “biological sex” is a “disputed term that refers to the sex as listed on students’ original birth certificates.” CNN later updated the article.

A basic biological explanation of how sex has been determined in babies starts with the X and Y chromosomes. Both men and women have sex chromosomes — men usually have one X and one Y chromosome, while women have two X’s, according to Tech Interactive.

“During fertilization, the sperm cells race toward the mother-to-be’s egg cell. If a sperm with a Y beats all others, then the fetus will be XY. The pregnancy will result in a boy,” Amy Johnson of Stanford University wrote in the Tech Interactive in 2012. “However, if a sperm with an X wins the race to the egg, then the fetus will be XX.  The parents will have a baby girl.”

Scientists say roughly 1% of people can have differences or disorders of sex development (DSDs) which complicate this binary. Sex chromosomes say one thing, but the presence of ovaries or tests or other sexual anatomy say another at birth, which is referred to as an “intersex” condition. 

Sex was defined in Title IX amendments in 1972 as biological, although the Obama administration unilaterally changed the definition of “sex” to include sexual orientation and gender identity (SOGI). Some lawmakers, including Republican Illinois Rep. Mary Miller, have pushed to clarify that when Title IX defines “sex,” it means “sex determined solely by a person’s reproductive biology and genetics at birth.”

Gene mutations affecting gonad development in the womb can result in a person with XY chromosomes developing female characteristics, according to Nature. Alterations in hormone signaling can cause XX individuals to develop male characteristics.

According to Nature, the understanding of “sex at birth” began to change by the turn of the millennium. 

“Biologists may have been building a more nuanced view of sex, but society has yet to catch up,” an article in Nature magazine said in 2018. “True, more than half a century of activism from members of the lesbian, gay, bisexual and transgender community has softened social attitudes to sexual orientation and gender.”

(Photo by Scott Olson/Getty Images)

It was around this time that the law made options such as gender-neutral designation on birth certificates an option. California became the first state in 2017 to allow residents to opt for a gender-neutral designation on their birth certificates. The state recognized a “third, non-binary gender category” for people who didn’t identify as male or female despite an initial sex designation on their birth certificates, Smithsonian Magazine reported

California’s Gender Recognition Act defines non-binary as an “umbrella term for people with gender identities that fall somewhere outside of the traditional conceptions of strictly either female or male.”

Earlier that year in June, Oregon became the first state to offer a gender-neutral option for licenses. Washington, D.C., did the same thing later that month.

A 2017 article from Aeon argues that in order to “protect the right of gender self-determination, we should remove sex markers from birth certificates before they become the basis for sex discrimination.” 

An article from the New England Journal of Medicine from late 2020 argues for “rethinking” sex designations altogether. 

“Assigning sex at birth also doesn’t capture the diversity of people’s experiences. About 6 in 1000 people identify as transgender, meaning that their gender identity doesn’t match the sex they were assigned at birth. Others are nonbinary, meaning they don’t exclusively identify as a man or a woman, or gender nonconforming, meaning their behavior or appearance doesn’t align with social expectations for their assigned sex,” the article said. 

LONDON – DEC. 09: In this photo illustration a baby suckles a dummy whilst resting in her cot on Dec. 09, 2005, in London, England. (Photo illustration by Daniel Berehulak/Getty Images)

The authors of the article argue that sex designation should be removed from documents such as passports. 


“Passports and state identification cards relying on sex assigned at birth for identification pose another challenge,” the article said. 

“Governments could also remove gender designations from identification cards altogether and focus more on identifiable physical features and updated photographs. This change would accommodate nonbinary people and reduce the burdens associated with amending documents.”

States have stepped up their efforts in allowing people to change the sex they were assigned at birth, even for minors. New York announced in early 2020 that it was changing its policy prohibiting transgender minors from changing their sex on their birth certificate, letting children age 16 or younger to request the sex change. 

From The Daily Caller

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