Some highlights: This is, as far as I'm aware, the first court case involving Transgender where the binary nature of "physiological sex" has been challenged. Universally, Intersex people have always been dismissed as inconsequential, rare one in a zillion cases of no importance. Or against sincerely held Religious belief, so their very existence denied, as it goes against what is still being taught in backwards and creationist biology classes.
This case raises issues central to amici's mission as advocates for intersex youth. Petitioner maintains that the word “sex” in Title IX must refer only to an Individual’s so-called “physiological” sex, rather than the sex with which an individual identifies and lives every day. This is so, Petitioner argues, because “physiological” sex—purportedly unlike gender identity—is binary, objective, and self-evident. The intersex youth for whom amici advocate are a living refutation of this argument.
Petitioner’s simplistic view of “physiological” sex is demonstrably inaccurate as a matter of human biology. Moreover, it demeans many thousands of intersex youth by erasing their bodies and lives and placing them outside the recognition of the law. Physicians who treat individuals with intersex traits recognize that the key determinant of how individuals navigate sex designations in their lives is their gender identity—their internal sense of belonging to a particular gender.
Amici Have a strong interest in ensuring that The Court does not endorse Petitioner’s misguided View of “physiological” sex, and in seeing the Court interpret Title IX in a way that respects all children.
This brief argues that in cases of Intersex, Gender Identity is the only feasible way of determining anyone's sex. Rather than relying on handwaving and assertion, or religious texts, it shows that scientifically, there is no bright, distinct touchstone reliant on objective facts other than Gender Identity. It may not be perfect, but it's by far the best there is.
Notably, the legal system has struggled for decades to answer the definitional question that Petitioner simply begs. By the time Title IX was enacted, courts well recognized that “(t)here are several criteria or standards which may be relevant in determining the sex of an individual.”
M.T. v. J.T., 355 A.2d 204, 206–08 (N.J. App. Div. 1976) (listing chromosomes, external genitalia, gonads, secondary sex characteristics, and hormones, as well as gender identity).
Commentators have noted the “variability of standards that courts employ” in making such determinations.
Even courts in the same jurisdiction have disagreed about how to determine sex when physiological features do not align.
Petitioner and its amici also assert that “physiological” sex has the virtue of being an “objective” classification. Pet. Br. at 32; McHugh Br. at 3–6, 12–13.
Gender identity, they suggest, is “fuzzy and mercurial,” id. at 8, while “physiological” sex simply is. But the foregoing discussion should make clear that this assertion is similarly flawed. An intersex student’s "physiological” sex may depend entirely on which Physiological trait one chooses to privilege. Indeed, because of the diversity of medical perspectives, trained experts can and do disagree on the “correct” sex to assign to an intersex child.
Interpreting “sex” to refer to a student’s gender identity would avoid (or at least mitigate) these problems. Unlike “physiological” sex, all parties appear to agree on what gender identity means: it is “[an] individual’s ‘innate sense of being male or female.’” Pet. Br. at 36; cf. Resp. Br. at 2 (similar). It is not subject to competing definitions depending on which expert or court is consulted. Moreover, unlike “physiological” sex, a student’s gender identity by definition cannot be subject to differences in medical opinion: each student is the ultimate arbiter of their own gender identity, as they (and they alone) experience it first-hand.
Moreover, at the time Congress passed Title IX, they either knew, or should have known, that Intersex people exist.
Accordingly, when Congress enacted the provision at issue here, it knew—or, at minimum, should have Known—that not all students could be straightforwardly categorized as “male” or “female” based on Their anatomy alone. Congress could not have believed otherwise without ignoring millennia of Western history, science, and law.
Certainly by the time the Americans with Disabilities Act was passed, they knew.
So, how does this situation affect Intersex kids? One example. A kid with XX/XY mosaicism, one of the syndromes that can cause a partial, apparent natural sex change.
(I) was in a boys’ restroom, and someone saw that I went in there, and then complained to my counselor, who then said “Well, you can’t use the boys’ restroom, so you have to use the girls’ restroom.” And I was like “ok, fine, whatever.” But ... there (were) athen complaints that I was using the girls’ restroom. And I was told, “Well, you can use the nurse’s restroom.”
Now, ... the nurse was on the complete opposite side of the entire building .... So if I was in the middle of class, I would have to leave, and I would be gone for 10-15 minutes, so of course my teachers didn’t like that. So I was told “You can’t use the nurse’s restroom .... There is a single-stall restroom in the special education area, which is near where your classroom(s) are, so you can use that one.” And I was like “fine, ok.” And I used that one for a bit and was then told that I couldn’t use that one....
At that (point)... I was told “Well, you don’t Have a full school schedule, so you can just hold It.” So yeah, for the last semester, at least, I just wasn’t allowed to use the restroom at the high school at all.
Unfortunately... It has been since February 2016 the Republican National Committee dogma that, and I quote
A person’s sex is defined as the physical condition of being male or female, which is determined at conception, identified at birth by a person’s anatomy, recorded on their official birth certificate, and can be confirmed by DNA testing;What do we do when not merely a major political party, but the one controlling the House, the Senate, the Presidency, a large majority of state governorships and legislatures, soon to be the Supreme Court and a majority of Federal judicial appointments, when this party has as an article of Faith something as counterfactual as "Pi = 3" or "The Earth is Flat"?