Bioethics Forum Essay

Really Changing Sex

On Tuesday, the New York Times reported that New York City “is moving forward with a plan to let people alter the sex on their birth certificates even if they have not had sex-change surgery.” Under the new plan “being considered by the city’s Board of Health… people born in the city would be able to change the documented sex on their birth certificates by providing affidavits from a doctor and a mental health professional laying out why their patients should be considered members of the opposite sex, and asserting that their proposed change would be permanent.” No more need to get surgery or even hormone treatments to get the legal gender you feel is right for you.

Quite a progressive move, this. And nicely in keeping with the long history of liberal democracy, wherein social and political identities have been increasingly decoupled from anatomy. Think about it: your social identity and legal rights depend a lot less on your body type now than they did fifty years ago, and much less than they did a hundred or five hundred years ago. Most of the major civil rights movements have been about just this: arguing against body-based discrimination, whether it be race-based, sex-based, or ability-based.

Why should a person have to go through expensive and dangerous transsexual surgeries – many of which she might not want or be able to afford – to get people to recognize her as the gender she says she is?

But even for a gender progressive, the New York city approach raises a host of questions.

First off, consider what you have to do to get the medical certification saying you are who you claim: “Applicants would have to have changed their name and shown that they had lived in their adopted gender for at least two years.” Well, dandy, but it can be pretty hard to pull off living under a new gender identity before you get a legal change of sex. A lot of folks don’t want to play along without the legal change. Heck, as a number of trans folks have learned the hard way, a lot won’t play along even after the legal change.

And why exactly two years? Couldn’t an entire year of managing to live in a gender that doesn’t match your sex be enough to prove how serious you are?

At a deeper level, what’s with the idea that health care providers should be the ones certifying who is what gender? Sure, historically speaking, that’s how it has been. But that’s because legal gender/sex change was until recently tied to sex-change hormones and surgeries. Given that New York is considering giving up anatomical considerations of sex, why involve medical professionals in legal gender changes at all? Why not, for example, have a judge or a social worker review the evidence of a gendered life?

The obvious answer to that is to rule out people who are crazy. But the state doesn’t require other people who are about to undergo other major and seemingly permanent legal changes to first prove they’re not crazy. Marriage is supposed to be forever, but you don’t need a doctor’s note to prove you understand and believe that before you get hitched. And adults seeking to adopt are typically evaluated by social workers and judges, not psychiatrists. Certainly it makes sense for a surgeon about to lop off someone’s gonads and radically alter genitals to want some kind of assurance from a mental health professional that the surgical candidate is both sane and serious. But the New York plan isn’t about surgery, right?

Ah, but it does seek to be about permanence. The Times article quotes the city’s health commissioner, Thomas R. Frieden, as saying “It’s the permanence of the transition that matters most.” And therein lies the conservatism of the move. Okay, we’ll let you change legal sex, but only once. You have to make sure you claim that we just got it wrong in the first place; you were always the gender you say you are now. This way we don’t end up with the crazy idea that people really might be able to change their sexes! We couldn’t take that.

As a historian – even as a trans-sympathetic historian – I’ve got to say this makes me a little crazy. What does it really mean to change a person’s sex on a birth certificate? Isn’t the birth certificate a historical record of what was believed to be true at the birth? I know this is done for a pragmatic reason; when you want to get yourself a license, a social security card, a passport, often what is demanded is your birth certificate. If that isn’t changed to note your ultimate gender identity, you’re going to have problems over and over again. So we change birth certificates to (reasonably) spare trans folks more misery.

Yet changing birth certificates in this way is all playing into the idea that everyone has a true, core, single sex/gender identity that never, ever changes. Sure, sometimes the doctors get it wrong, sometimes the state gets it wrong, but really, it never, ever changes. (That’s why Frieden insists “the permanence of the transition… matters most.”)

But that’s just not true. Some people really are born male by all conventional standards and really do end up with the gender identities of women. And vice versa. And some people’s gender identities really do seem to change over time. Moreover, some people never settle into a simple male or female gender identity. But all these people are forced by the revisionist history required by the state and most of the medical profession and everyone else to tell only the “man trapped in a woman’s body” or “woman trapped in a man’s body” story. “They got my sex wrong at the start” is the only story that seems to be acceptable. Okay, you can be trans, but only if you cooperate in changing your whole history so that you fit into the two-sex model.

Think about it. Even as the New York move seems terribly progressive, it has built into it some of the same old strictures. Maybe we should really move on and really change sex. I mean, maybe the folks in New York should take their learning to its logical conclusion, and realize that it’s probably time for the state to get out of the business of telling people which sex or gender they are.

Listen: I’m not saying we should get rid of gender. People will still have genders even if the state doesn’t get to decide who is who. The truth is that most people (even most trans people) feel that having a recognized gender identity accords with their senses of self.

And I’m not saying we have to get rid of all sex records that might be used by scientists to track biological and social trends or by doctors to diagnose and treat patients, or that we get rid of all conventions based on sex and gender, like sexed bathrooms and distinctions between our mothers and fathers. Sex is real; it has its uses (and its limitations), and in any case, it is persistent. But we don’t need the state to adjudicate who is who, do we? If New York is serious that it is ready to let people say what their genders are, regardless of their anatomies, maybe it ought to recognize that, just as sex anatomies don’t come in only two types that never change, neither do genders. Much as many of us might wish it were so.

One last note. Pulling up that old and tired bugaboo, Paul McHugh from Johns Hopkins University’s psychiatry department and the President’s Council on Bioethics is quoted in the New York Times article as saying “I’ve already heard of a ‘transgendered’ man who claimed at work to be ‘a woman in a man’s body but a lesbian’ and who had to be expelled from the ladies’ restroom because he was propositioning women there.” My dear Dr. McHugh, you want to know what you call someone who persistently propositions uninterested people in bathrooms? A jerk.

Quite a few men and even some women are jerks. One or two jerks may have even sat on the President’s Council on Bioethics at one time or another. But the existence of a few jerks here and there is really not reason enough to deny them or anyone else their genders, is it?

– Alice Dreger

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