2005: Defining Male and Female: Biology and the Law

Definine Male and Female: Biology and the Law
organized by Rochelle Diamond, National Organization of Gay and Lesbian Scientists and Technical Professionals, Inc.; Mark Tumeo, Cleveland State University

Presented in the Societal Implications for Medical Advance track of the AAAS Annual Meeting in Washington DC

February 19, 2005

Symposium Abstract

In a maelstrom of politics, court rulings, and proposals to amend constitutions to defend the concept of marriage, the definition of male and female gender has become a serious issue. Both current laws and proposed city, county, state, and federal legislative acts are relying on a definition of gender based on sexual dimorphism. The state of that definition is biologically confusing in real life for a significant number of people. What is the biological definition of male and female? Is sex determined by DNA, external genitalia, or some other defining characteristic(s)? How is sexual identity formed? The frequency of live births that deviate from the ideal male and female anatomical gender may be as high as 2 percent in the population (Blackless, et al American Journal of Human Biology Vol. 12, Issue 2, pp. 151-166). Many biological diversities make up this statistic, but the common thread is that they all deviate from the platonic ideal male or female. Many intersex babies, born with ambiguous genitalia, receive “corrective” surgery after birth. Some babies born “ideal” have the misfortune of a birthing “accident” and, no longer considered ideal, receive “corrective” surgery changing their gender. Recent evidence indicates that the surgery has negative physical and psychological results for many intersexuals (Reiner and Gearhart, New England Journal of Medicine vol. 350, Jan. 22 2004). These and other kinds of developmental, biological conditions can contribute to gender bending as well. Still, these biological expressions are not alone in the confusion of defining gender. The complex and changing anatomies of transexuals and transgenders also complicate gender defined legal determinations. How these biological and anatomical aspects relate to the implementation of current and future law formulated on the basis of sexual dimorphism will be discussed.

Presentation Abstracts:

Eric Vilain, University of California at Los Angeles

Defining sex should be a simple matter. Common sense dictates that males and females should be defined by the appearance of their genitals. The biological reality is more complex, in terms of variability and mechanisms.If the aspect of external genitalia is the litmus test for defining males and females, the phenotypic spectrum becomes an immediate issue. Clitoris and penis, of common embryologic origin, have no clear definition for their respective size, and all intermediate forms exist in nature. Labia and scrotum (the male and female counterparts of the developing genital folds) also exist in a wide variety of intermediates.Parameters of biological sex, in addition to the external genitalia, include chromosomal sex (XX or XY), genetic sex (presence or absence of the SRY gene or of other genes of the sex determining pathway), gonadal sex (testicular or ovarian tissue), hormonal sex (testosterone or estradiol), internal reproductive structures (uterus or epididymis) or brain sexual dimorphisms.Intersexuality, defined broadly as any discrepancy between the various aspects of biological sex, is an invaluable model to understand the mechanisms of sexual development, and a striking example of the difficulty to easily categorize individuals in a sexual binary system. We have identified several genetic mechanisms (mutations in the transcription factors SRY and SOX9, duplication of the signaling molecule WNT-4) responsible for the development of feminized XY or masculinized XX individuals.The law often establishes rules of social conduct between men and women (for instance to delineate marriage) without referring to the underlying biological complexities of defining males and females.

Intersex Conditions: When Upside Down Is Right Side Up
William Reiner, University of Oklahoma Health Sciences Center

Discordant declared sexual identity was observed in a series of genetic male children (46 XY karyotype) compared to their neonatally assigned female sex-of-rearing. Neonatal female sex-assignment occurred due to severe phallic inadequacy from diagnoses of cloacal exstrophy, mixed gonadal dysgenesis, androgen insensitivity syndrome, and true hermaphroditism. Spontaneous declarations of male sexual identity and transitions to male in these genetic and hormonally male but female-assigned children occurred between 4 and 19 years of age despite legal, social, and surgical assignment as female, including surgically constructed female genitalia. Recognition of male sexual identity regardless of female sex-of-rearing in these children appears to be a profound consequence at the least of prenatal androgen exposure and effects. Male-typical behaviors and activities strongly predominated in all these children. Adolescent children in this series declaring themselves male also state a sexual orientation towards females.

Laws: Protections, Prohibitions, and Their Affect on Communities
Mara Keisling, National Center for Transgender Equality

The movement for transgender civil and equal rights has advanced tremendously over the past few years. Sixty-eight jurisdictions nationwide explicitly protect people based on gender identity/expression. This includes four states. Five additional states and the District of Columbia protect transpeople against discrimination judicially or administratively. How new marriage laws based on the definition of male and female will affect the transgender community and these protections will be discussed.

The Legal Challenges of Sexual Identity
Susan Becker

Since the adoption of our Constitution more than two centuries ago, the law has served as a sorting device for determining who receives the full panoply of rights, benefits and privileges associated with U.S. citizenship and who does not. Some citizens (for e.g. white, Protestant, middle and upper class, heterosexual males) have historically enjoyed all the benefits the law has to offer. In contrast, women, people of color, gay men and lesbians, and others outside the dominant culture have been ignored, explicitly excluded, and even punished due to their minority status. The civil rights movements of the 1900s significantly advanced the rights of persons who had been disenfranchised due to their race and/or gender. The civil rights movement seeking equality for those disenfranchised due to their sexual orientation and sexual identity, however, continues its struggle. My presentation will provide an overview of the legal issues related to sexual identity from a historic and contemporary perspective, with emphasis on how science has played and continues to play an important role in sexual identity politics and the laws such politics spawn.