A useful explainer for bewildered relatives, etc.:
Clear definitions of categories matter in the law. The use of two sex categories to talk about a species is standard in biology. In many animal species, including people, however, there are individuals who are neither male nor female or who are sometimes both. In other species, there are two sexes, but they arenât male and female (usually these are intersex and male). And a few species have only one sex (usually female). The biological reality is that âmaleâ and âfemaleâ are not universal immutable biological classifications but rather descriptions of typical patterns in reproductive biology. These categories, male and female, are used by biologists who fully understand that they rarely represent all the relevant biological variation in any given species or identical sets of variation across different species.
Sex is not one single, simple, uniform biological reality. Thus, biology cannot be invoked as a basis for such in legal terms. Thatâs the bottom line.
Of course, men and women are not the same, and reproductive biology does structure important aspects of human bodies and lives. But none of the key biological systems associated with sex in humans (chromosomes, gonads, genetics, hormones, and so on) come exclusively in two âimmutableâ categories. Yes, most humans have either XX or XY chromosomes, but as Judge Reyes noted, some donât. People with either testes or ovaries are most common, but some people have both, and a few have ovotestes. Usually those with testes can produce sperm, and those with ovaries produce ovaâbut not always. The chromosomes one has do not always predict oneâs gonads or oneâs genitals or even all the elements of oneâs reproductive tract. It is true that most people have the âtypicalâ combo of chromosomes, gonad and genitals, yet there are tens of millions of people alive right now who donât. These people are not errors, aberrations or problems; they are a part of the range of variation in our species. They are all real people. In fact, many who have these variations donât even know it. You might be one of them.
In making laws, then, we need to recognize what the actual range of variation in sex-related biology is and how it maps across everyone.