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Challenging the gender binary, one bill at a time

by by I.W. Gregorio

I.W. Gregorio
I.W. Gregorio  

When Governor Jerry Brown signed the Gender Recognition Act (Senate Bill 179) last October, it gave nonbinary and intersex adults in California an unprecedented validation. For the first time, their driver's licenses and state ID cards could reflect their actual gender identities, rather than forcing them into categories that, in the words of the bill, "fail to adequately represent the diversity of human experience."

The law went into effect this year.

Prior to the act, Californians who wished to change their gender on official government documents were required to provide medical proof of gender reassignment, a specious requirement that makes the common mistake of equating gender identity with biological sex. Opponents of the bill have frequently fallen into this trap - note how the conservative California Family Council commented in the San Francisco Chronicle that the legislation "advances a lie; that being male or female, or no gender at all, is a choice each person has a right to make."

In reality, there is no more stark scientific truth than the fact that not all children are born clearly male or female. Though exact numbers have been debated, an estimated 1.7 percent of the population exhibits intersex traits - biological conditions in which people exhibit sex characteristics that fall outside of traditional conceptions of "male" or "female" bodies. Intersex conditions leading to a risk of medically unnecessary surgery occur in approximately one in every 2,000 births.

I first realized the false equivalence between chromosomal sex, biological sex, and gender identity in my urology residency, when I cared for a 17-year-old girl with Complete Androgen Insensitivity Syndrome (AIS). Because she outwardly looked female, it never occurred to her or her parents that she might have XY chromosomes, and lack a uterus, and have internal testes in hernias.

Possibly due to the fact that girls with Complete AIS have aberrant receptors that cause their cells to be testosterone-deaf, the majority of them ultimately identify as female. But not all do; additionally, there's a variant called Partial AIS, in which the hormonal profile and growth of the genital organs aren't as clearly female. Partial AIS carries with it considerably more ambiguity when it comes to future gender identity.

By dealing a blow to the insidious cultural insistence on the male/female binary, SB 179 recognizes the fact that gender is, in fact, a spectrum.

As a physician, I can say with certainty that it will save lives. A perfect illustration of the danger of the gender binary is the following case that an OB-GYN colleague of mine reported last year:

Early on in the pregnancy, the family had genetic testing showing that their baby was XY. Months later, they went in for a routine anatomy scan - checking out the heart (all four chambers beating in synchrony), the limbs (also four, with the normal number of fingers and toes), and the kidneys (normal, without any concerning fluid collections). But when the ultrasound technician went to look in the baby's groin, they couldn't find any clearly male structures.

The family panicked. They feared that their child might be born with ambiguous genitalia, and couldn't imagine having a boy with an imperfectly formed penis. They consulted psychiatrists and endocrinologists. Nearly paralyzed with the possibility that their child would be born intersex - namely, existing in that biological gray area that exists between male and female - they considered an abortion.

No one knows for sure exactly how many intersex fetuses in the U.S. have been terminated. Even if it's only one, though, it would be too many.

As a surgeon, I am even more hopeful that SB 179 will have an impact on how parents and physicians support and care for intersex children after they are born. For too many years, doctors have felt compelled to "fix" intersex, subjecting countless children to nonconsensual and irreversible genital surgery that can often lead to devastating, long-term complications. More often than not, they dub ambiguous genitalia a "social emergency" due to parental anxiety.

Happily the tide is turning, as medical associations, former surgeons general, and human rights organizations across the world speak out in support of intersex children's right to bodily autonomy. We humans are a diverse lot, and every one of us deserves to be known and acknowledged as nature made us. With the Gender Recognition Act, Californian intersex people are one step closer to a world where they are valued for the bodies in which they were born.

I.W. Gregorio is a urologist, author, and InterACT: Advocates for Intersex Youth Board Member. Her debut novel "None of the Above" was a Lambda Literary Award finalist and a Publisher's Weekly Flying Start.


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