The Futile Yet Persistent Search to Define and Determine Gender

Under the unfortunate headline, “Which Side Are You On?,” the Washington Post has published an interesting article about the struggle to define gender and how that struggle has played out in legal cases around the country.

The article discusses the now well-known story of 18-year-old South African runner Caster Semenya, “who has been put through ‘gender verification’ amid suspicion about her muscular physique and low voice.” Testing was ordered after Semenya’s won the 800 meters at the World Athletics Championships back in August in record time. Though physical exams indicated that Semenya has both male and female characteristics, family members stressed her gender is not in question.

“This is a woman who was raised a female. She will always be female, no matter what people say,” said Semenya’s uncle.

Semenya’s case may be unique for the publicity it attracted — including embarrassing scrutiny and harsh comments from her fellow runners. Yet private battles are waged every day over issues such as sex designation on a driver’s license, or the legality of marriage when a person is transgender.

“These cases have left judges, doctors and athletics officials — those tasked with drawing a bright line between the sexes — struggling to find a reliable gender test, some trait that divides all men from all women,” writes David A. Fahrenthold. “But scientists say they don’t have one yet.”

That’s because “male” and “female” is not always an either/or classification. The story details the perhaps surprisingly high occurrence — one in every 100 people — of “disorder of sex development,” which refers to “congenital conditions in which development of chromosomal, gonadal, or anatomical sex is atypical.” Conditions may include androgen insensitivity syndrome, in which people do not respond to testosterone despite the presence of XY chromosomes. (The continuum of AIS is explained more fully at the Androgen Insensitivity Syndrome Support Group. Our Bodies Ourselves also recommends the Accord Alliance, which offers a useful glossary and identifies advocacy and support groups for specific DSDs.)

Alice Dreger, a professor of clinical medical humanities and bioethics at Northwestern University, tells the Post that officials could look at whether an athlete was raised as a boy or a girl, or they could look at some laboratory threshold, such as the amount of male hormones in an athlete’s blood.

Then she delivers the best quote in the piece: “To me, it’s no different than deciding where the foul line is … The line is not drawn by nature, it’s a line we draw on nature.”

Gender, after all, is as much a social construction as it is a biologically determined “fact.” And it can be as much of a performance as it is an irrevocable identity.

A tangent: Visit Dreger’s website. She wrote a terrific “Media Advisory on Sex Verification” to help reporters understand the issues at play in Semenya’s case. It’s a very accessible FAQ that should be required reading for all. For more on the importance of language, here’s her summary of a 2007 talk delivered at the Kinsey Institute on the history and politics of the term “intersex”; the adaptation of alternative terms, including “disorders of sex development”; and the whole trouble with nomenclature.

As debates over sex and gender identity continue, the state you live in may determine your gender. The Post story includes these examples:

In the D.C. suburbs, for instance, many authorities have decided on a simple test: Surgery makes the gender. In Maryland and Virginia, for instance, officials will alter the sex on a driver’s license if presented with proof of sex-reassignment surgery. The District, by contrast, doesn’t inquire about surgery: It requires that a medical provider or social worker attest that a person has a new “gender identity.”

But nationally, legal experts say that some courts have balked at the very idea of a sex change. Some state appeals courts have said someone born a man remains so, no matter how their bodies have changed.

In one 2002 case — voiding a marriage between a man and a transgender woman — the Kansas Supreme Court based its gender test in part on . . . Webster’s New Twentieth Century Dictionary. Male, the dictionary said, meant “designating or of the sex that fertilizes the ovum and begets offspring: opposed to female.”

By that logic, the court said, the transgendered woman was not female, at least not in Kansas.

“Judges are very anxious; you can feel their anxiety,” said Katherine Franke, a director of the Gender and Sexuality Law Program at Columbia University Law School. “They don’t want to pick a rule, because they know it’s arbitrary.”