Their lives would be at odds with the scientifically erroneous definitions of sex and gender that Trump is pursuing

It took decades for Anunnaki Ray Marquez to accept himself. Then, on 17 September 2018, the state of Colorado accepted him, too, issuing a new birth certificate that said he was “intersex”, meaning born with a mix of what are considered male and female sex characteristics.

It was a “huge, gigantic, momentous” event in the 50-year-old’s life: finally an official government document recognizing his existence. But the celebration was short-lived.

This week, a leaked Trump administration memo suggested that the US government was working to define sex as “either male or female” and “determined by the genitals that a person is born with”, the New York Times reported. The move represents an extraordinary attack on transgender people, seeking to in effect reject their identities and deny them the most basic recognition, protections and rights. Entirely missing from the breaking news report on the memo, however, was intersex people, whose lives would also be fundamentally at odds with the scientifically erroneous definitions of sex, biology and gender that Trump is pursuing.

Trump wants to deny my trans identity – and erase years of progress | Alex Myers Read more

“Every single thing that I fought for would be taken away from me,” said Marquez, who lives in Jacksonville, Florida. “People with power and control are dictating and stigmatizing you with labels that aren’t true.”

Intersex people are highly misunderstood, neglected and underrepresented in public life, even though they make up an estimated 1.7% of people worldwide – in line with the rates of redheads or people with green eyes. The term intersex (the “i” in LGBTQIA) refers to people born with reproductive or sexual anatomies that don’t fit typical definitions of male or female, meaning they can have variations in chromosomes, genitals, internal organs and other characteristics.

Facebook Twitter Pinterest It took decades for Anunnaki Ray Marquez, a 50-year-old non-conforming androgynous man from Jacksonville, Florida, to accept himself. Photograph: Tiffany Manning

Echoing Trump’s repeated assaults on trans rights in the last two years, the US Department of Health and Human Services (HHS) memo seeks to create a binary system for sex and gender by claiming these are “unchangeable” categories, provable based on “biology”, and must be male or female, according to the New York Times. That is directly meant to erase trans people, whose gender is different from the one assigned to them at birth, but could also have devastating consequences for intersex people and non-binary people (who identify as neither male nor female).

LGBTQIA activists have struggled to comprehend the implications of potential federal erasure in recent days. For trans, intersex and non-binary people, the narrow and inflexible definitions of sex and gender could mean an inability to obtain accurate legal documents. This could prevent them from getting correct IDs and affect their ability to access public spaces, jobs, housing, education and basic services.

Toby Adams, the executive director of the Intersex and Genderqueer Recognition Project, said the policy would force non-binary people to make an impossible choice: “Either you lie about your identity … under penalty of perjury, you check this box and say I swear this is true. Or you don’t get a driver’s license. You don’t get a passport. You don’t have a birth certificate.”

“If you are a science denier, of course you are going to create a policy like this that is an erasure of an entire people,” said Violette Skye, a 42-year-old intersex person in Salem, Oregon. “I totally don’t fit into this administration’s definition of a binary sex.”

‘Everything I was told is a lie’

Like trans people, intersex activists have long fought for acceptance. They have also advocated to normalize their existence in a society that traditionally has treated them as people with disorders who need to be fixed.

The result can be surgeries that are medically unnecessary, invasive and irreversible – meant to push babies and children to conform to a binary sex and gender.

“I was born with an intersex body, and it caused so much alarm and disgust that they tried to put me in one box, and it failed,” said Sean Saifa Wall, an intersex Atlanta resident who co-founded the Intersex Justice Project. “Doctors are literally every day attempting to erase intersex bodies.”

There has been a growing movement against non-consensual medical interventions, which American surgeons popularized in the 1960s. Some governments have explored restrictions, with Malta passing a groundbreaking policy in 2015 banning non-vital surgeries on those too young to consent. Amnesty International, the World Health Organization and the state of California have formally condemned non-consensual surgeries.

“When I was born, there was no accurate way to truly document my sex,” said Marquez, who was incorrectly assigned female at birth, a decision that led to a life of confusion, irrelevant diagnoses and damaging treatments. When, in 2014, he learned he was born with an intersex variation, it all made sense.

Facebook Twitter Pinterest Violette Skye, a 42-year-old intersex person said: ‘I totally don’t fit into this administration’s definition of a binary sex.’ Photograph: Violette Skye

“Everything I was told is a lie,” said Marquez, explaining how doctors and others had misled him for so long. “You’re thinking: ‘I’m broken, I need to be fixed.’ You’re being pathologized.”

In recent years, it became important for him to obtain a legal acknowledgement of his reality so many had denied for so long. The process wasn’t easy.

After receiving a series of doctors’ notes, he filed court paperwork explaining that he was born intersex, which is his “anatomical, chromosomal and hormonal medical reality”.

With assistance from Sara Kelly Keenan, the first person in the US who obtained an “intersex” birth certificate, Marquez got his own accurate certificate from Colorado, where he was born.

First US person to have 'intersex' on birth certificate: 'There’s power in knowing who you are' Read more

“It legally validated my existence … and said without a shadow of a doubt, the way I had been violated was now inexcusable,” said Marquez, who is a non-conforming androgynous man.

Some courtroom victories have established that there are people who aren’t male or female.

Trump’s memo, however, is promoting the opposite view – that sex must be one or the other “based on immutable biological traits”. If codified into the law, the federal government would be explicitly misclassifying millions of people, advocates said, with a system that would encourage the kind of medical interventions that have caused needless physical and emotional scarring for decades.

‘You can’t legislate us out of existence’

Some intersex people and their families have come a long way in accepting themselves and coming to terms with the consequences of unnecessary surgeries. The new Trump legal definition seeks to invalidate all of that progress, said Cary Gabriel Costello, a sociology professor at the University of Wisconsin-Milwaukee, who is an intersex man.

“When you make our lives a lie, it’s not just us affected. It’s our families. It’s our parents who have been implicated in the whole process,” he said.

With such little intersex visibility in society and medical treatments aimed at covering up their existence, few people come out of the closet, making it hard to find a community in a moment like this, said Costello: “A lot of people are dealing with this in isolation.”

By spreading misinformation, the memo could lead to more non-consensual surgeries, some activists said.

“They will continue to force people into a binary, and it’s not to the benefit of their health,” said Skye, who is also non-binary.

The memo also suggested that genetic testing could be used to determine an individual’s sex, a potentially invasive move that would make little sense for intersex people, some of whom have chromosomes that are neither XX nor XY.

“What are you going to do, kill us all?” said David Cameron Strachan, a 71-year-old intersex person in San Francisco. “We already have a suicide epidemic, and there will be more.”

An HHS spokesperson declined to answer the Guardian’s questions about the memo and potential impacts on intersex people. A statement from Caitlin Oakley, an HHS senior adviser, said the agency does not comment on “alleged, leaked documents”, and said the department’s office of civil rights would continue to enforce anti-discrimination laws.

Steph Nagoski, a non-binary person in Delaware, said of the memo: ‘It’s terrifying and exhausting.’ Photograph: Steph Nagoski

Hans Lindahl, a 26-year-old intersex activist with interACT, said she and her partner, who is trans, both submitted paperwork this week in California to have their state documents properly reflect their identities. The Trump news inspired them to take action, though she said it was upsetting to think of others outside of the state who would not have this option.

“I was happy that I was able to access that, but also very angry and frustrated that the system is so hellbent on … not acknowledging sex and gender diversity.”

The news has immediately triggered anxiety, depression and other mental health struggles for many this week, said Steph Nagoski, a non-binary person in Delaware, who uses gender-neutral “they” pronouns.

“There are a bunch of us who are in a non-functional state right now, and not OK,” they said. “It’s terrifying and exhausting. The ripple effects are really severe. The emotional crush on me has been really hard.”

Nagoski, a 48-year-old data scientist, said the government would not stop non-binary people from living as themselves: “You can’t legislate us out of existence.”