Our legal identity is formed in the immediate aftermath of our birth. Markers are given to us that denote our names, our hometown, and, crucially, our sex. On the basis of our genitalia at birth, we are assigned an M or F and launched into the world with a slew of expectations as to gender identity and expression.
Clashing with this weight of normative expectations forces transgender people (including non-binary and all other people whose gender identity or expression does not conform to their assigned-at-birth sex) into a public admission that they inhabit the wrong bodies. That is, that the identity that they have come to understand and nurtured does not correlate to the one assigned to them at birth. Aligning the two is the work of sex reclassification, the process through which a non-cisgender person applies to change their legal sex in their official state documents (e.g., IDs, birth certificate). This is an area of rapid doctrinal change in the US and the world at large, with an increasing embrace of self-identification: a legal framework for reclassification that is grounded in the applicant’s self-experience of gender and in the autonomous right to determine gender identity.
Into this explosion of legislative change, steps in Ido Katri, whose forthcoming article, Transitions in Sex Reclassification Law, accomplishes two important goals. First, it tracks the doctrinal and normative shifts in US approaches to sex reclassification and organizes an ambitious review of fifty states’ legislation into an easy-to-follow taxonomy. Second, it challenges the basic assumption underpinning reclassification laws and questions why we assign sex at birth at all. What if there were no “wrong bodies”?
The article tracks the various statutory approaches to sex reclassification according to the mechanism through which the state grants the reclassification. Using this device, Katri divides the legislation into five rough categories: jurisdictions that do not permit reassignment, those that require surgery, those that necessitate medical affirmation, those that call for corroboration of gender identity, and those where self-identification–expressed by self-attestation of the applicant’s own gender–alone suffices. This doctrinal spectrum corresponds with a normative one, from an understanding of the “truth” of birth-assigned sex as absolute, to a concept of gender identity as an innate truth of the self, a private right that exists alongside the public “truth” of birth-assigned sex.
Canvassing US approaches leads Katri to note a broadly progressive move toward self-identification as the gold standard for reclassification, and away from the most intrusive regimes, particularly those requiring surgical intervention. In 2013, twenty-two states required some form of gender-affirming surgery for sex reclassification on either birth certificates or state-issued identification, or both. By 2022, that number had dwindled to just ten. However, the presence of medical gatekeeping of sex reclassification remains prevalent. Confirmation of some form of medical procedure supporting “gender transition” is still a requirement to amend a birth certificate in fourteen states and the District of Columbia. This is in spite of an American Medical Association (AMA) policy issued in 2021 calling for an end to the practice.
Litigation has paved the way for easier and fairer reclassification procedures in several jurisdictions, where judicial decisions have touched on similar themes in holding that bans are unconstitutional. Overturning a ban on reassignment in Puerto Rico in 2018, a federal court judge ruled that banning sex reassignment stood in opposition to the constitutional right to privacy and personal autonomy. A similar decision in Ohio in 2020 cited a person’s right to privacy as well as equal protection in applying for sex reclassification.
What is particularly interesting and counterintuitive is Katri’s analysis that legal arguments in support of reclassification are united in their presentation of gender identity as an immutable, private right that exists alongside the public “truth” of birth-assigned sex. This conceptual coexistence has the unintended consequence of enabling conservative counterarguments centered on the immutability of sex (“biological sex”). It also allows for the positioning of bias against trans persons as people not protected under sex-discrimination doctrines, since sex and gender are understood as separate truths. So long as birth-assigned sex exists as a legal marker, gender identity must be asserted against it.
Here lies Katri’s powerful critique of sex-reclassification laws, even in their least intrusive form as self-identified. A self-identification framework, despite its laudable effect in producing concordant identification for trans legal subjects, perpetuates a version of the “wrong body” narrative. The wrong body narrative embodies essentialist assumptions about the gender binary; accordingly, the body is wrong in comparison to an authentic and inner gender identity. Body and gender identities are, then, separate features. Further, the wrong body portrayal does not represent the reality of all trans individuals, as some do not experience their bodies as wrong. As well, the narrative exceptionalizes the experience of trans people; whereas cisgender people also often feel uncomfortable with their physical self-image and gain access to medical procedures to “improve” their body and genitalia. Most of all, even progressive policies that are grounded in self-identification reinforce the harms that a system of assigned-at-birth sex inflicts on trans folks.
If the goal of reclassification laws is to undo the harm of birth-assigned sex, then that raises the question: why assign it at all? Katri offers a thorough, compelling, and yet sober argument in favor of ending the practice of birth assignment of sex. Katri nicely counters the possible arguments in favor of collecting sex. Readers whose instinct is that the state has compelling reasons to collect and record legal sex will also benefit from reading the highly informative work of legal scholar and bioethicist, Florence Ashley.
Heightening the significance of Katri’s argument is its relation to the broader conversation: his critique is part of a trilogy of articles, all written or published in 2022, that complicate and enrich the concept of sex assigned at birth. Jessica Clarke’s Sex Assigned at Birth, another of the three, provides an expansive and cutting-edge analysis of the evolution of “sex assigned at birth” and its role in the contemporary discourse about transgender rights. The third contribution is Noa Ben-Asher’s deeply innovative Gender Identity, The New Legal Sex, which reframes sex-reclassification laws as part of a larger transition from “biological sex” to a regime in which gender identity serves as the primary indicator of legal sex.
The importance of Katri’s work stems from his simultaneous ability to chart the progress of the sex-reclassification doctrine and effectively group its piecemeal legislation, while prodding the limits it presents. By questioning the necessity of birth-assigned sex and the conceptual framework of the wrong body that it inevitably produces, he invites further discussion of the value and desirability of giving the sex of a person a legal imprimatur. The combination of these contributions makes his latest article a fascinating read for anyone interested in the evolution of gender in society and the law, as well as in new frontiers in transgender rights.
