This week, The New York Times obtained a draft memo leaked from the Department of Health and Human Services. It argues that the government needs to establish a binary definition of gender, particularly for the purposes of enforcing Title IX—the law stipulating that nobody can be discriminated against on the basis of sex in an educational context receiving federal funding. The new definition would have people defined as either male or female, according to the genitals observed at their birth, with disputes resolved by genetic testing. The memo suggests that gender would be defined “on a biological basis that is clear, grounded in science, objective, and administrable.”



The Office for Civil Rights at HHS is run by Roger Severino, an ideologue with a history of opposing queer Americans’ rights (he has defended gay “conversion therapy” and railed against gay marriage). It is not at all clear that the substance of the memo will be enacted in any form; that it was leaked by the White House suggests it is a provocation designed to inflame and divide voters in advance of the midterms. But there are two aspects to the document that reveal the utter bad faith in which the Trump administration, and Republicans more broadly, are engaging in the issue of gender.

The first is very simple. HHS proposes to pin down sex as a matter of biological certainty that can trump a person’s claimed gender. But the concept of two “biological sexes” is inaccurate. For example, all babies are not born with bodies that can be neatly categorized. The Intersex Society of America estimates that 1 in 1,500 to 1 in 2,000 babies are born with genitals that do not appear obviously male or female. That is a very large population of intersex Americans, whose existence would be falsely recategorized by this memo’s proposed view of sex.

For many years, intersex people have been encouraged or forced, via surgery, to identify with one gender and then “live as a woman” or “as a man.” But that just hasn’t worked, instead leading to great unhappiness for many people. The medical consensus now is that intersex people need to determine their gender for themselves, or risk serious psychological trauma.

It is a mistake to turn intersex people into a kind of “test case” to back up trans people, both because it’s reductive of intersex people’s experiences and because it wrongly implies that trans people’s gender identities have anything to do with their genitals. But the two groups are strongly allied, because trans and intersex people have both been harmed by the imposition of a binary view of birth gender—precisely what HHS wants to do now.