By defining sex, some states are denying transgender people of legal recognition

Mack Allen, an 18-year-old high school senior from Kansas, braces for sideways glances, questioning looks and snide comments whenever he has to hand over his driver's license, which still identifies him as female.

They've come from a police officer responding to a car accident. They've come from an urgent care employee loudly using the wrong name and pronouns. They've come from the people in the waiting room who overheard.

“It just feels gross because I’ve worked so hard to get to where I am now in my transition, and obviously I don’t look like a woman and I don’t sound like a woman,” said Allen, who has been on testosterone for two years.

Kansas enacted a law last year that ended legal recognition of transgender identities. The measure says there are only two sexes, male and female, that are based on a person’s “biological reproductive system" at birth.

That law and others introduced around the nation this year — often labeled as "bills of rights" for women — are part of a push by conservatives who say states have a legitimate interest in restricting transgender people from competing on sports teams or using bathrooms that align with their gender identity.

Critics argue the proposals to legally define sex as binary are essentially erasing transgender and nonbinary people’s existences by making it as difficult as possible for them to update documents, use facilities and generally participate authentically in public life.

They’re also creating uncertainty for the many intersex people — those born with physical traits that don’t fit typical definitions of male or female — with the measures unclear on how people would prove they’re exempt.

Some of the measures would remove the word gender, which refers to social and self-identity, from state code and replace it with sex, which refers to biological traits, conflating the two terms. Others make gender a synonym for sex. Medical experts say the efforts rely on an outdated idea of gender by defining it as binary rather than a spectrum.

“You pass a law because there's a problem. The medical community doesn't see people having different gender identities or being born with an intersex condition as a problem for society," said Dr. Jack Drescher, a clinical professor of psychiatry at Columbia University who edited the section about gender dysphoria in the American Psychiatric Association’s diagnostic manual. “The medical community can only stand back to say, what exactly are you passing this law to protect?”

Measures have been proposed this year in at least 13 states — Alabama, Arizona, Florida, Idaho, Indiana, Iowa, Mississippi, Missouri, Oklahoma, South Carolina, Utah, West Virginia and Wyoming — and advocates expect that number to grow. The bills follow a historic push for restrictions on transgender people, especially youths, by Republican lawmakers last year. At least 23 states have banned gender-affirming medical care for transgender minors, and some states are now shifting their focus to trying to restrict that care for adults, as well. Others have moved on restroom and sports restrictions.

Many political observers say the Republican focus on transgender people is an attempt to rally a voting base with a “wedge issue" to replace abortion rights, which the public has largely favored, notably in Kansas. The efforts also worry transgender people and their allies that they're further stigmatizing and threatening a community already at high risk of stress, depression and suicidal behavior.

With the latest round of bills defining man and woman, it's clear “the intent is to make it as difficult as possible for transgender people to operate within a state," said Sarah Warbelow, legal vice president of the Human Rights Campaign, a large LGBTQ+ rights group.

“It's an attempt to deny transgender people's existence,” she said.

A similar proposal in Iowa put forward by Republican Gov. Kim Reynolds led to protests at the state Capitol. The bill was introduced soon after the failure of a lawmaker’s effort to remove gender identity from the state’s civil right law. It would narrowly define male and female and require a transgender person’s assigned sex at birth to be listed alongside their gender identity on their birth certificate.

“Women and men are not identical; they possess unique biological differences," Reynolds said after introducing the measure. "That’s not controversial, it’s common sense.”

The sponsor of a similar bill passed by the West Virginia House said the legislation is needed to allow restrictions on who can use single-sex restrooms, locker rooms and changing areas.

“At any given time, we're unable to protect single-sex spaces,” said Del. Kathie Hess Crouse, the measure's sponsor, said. “If we don't have a definition, we can't protect them.”

Jocelyn Krueger, of Grinnell, Iowa, joined protesters at the statehouse days after testifying to lawmakers that she opposed the failed effort to remove gender identity from the civil rights law.

Krueger said she’s concerned about potential repercussions of the bill, given that a person’s identifying documents “unlock basic participation” in everyday life.

She compared it to how she was temporarily unable to get money from her bank account when she was updating her documents. Krueger worries the Iowa bill could create similar challenges for trans residents, but longer term.

“Not having access to documentation, or things that out you in a way, or where your documentation doesn't match, puts you at risk for all of those daily interactions where people are looking at your documentation,” Krueger said.

The Williams Institute, a think tank at UCLA Law, estimates there are 1.3 million transgender adults in the U.S. But it's believed that intersex people represent 1.7% of humans, which would translate to over 5 million in the U.S. alone.

In Alabama, lawmakers added language to legislation defining male and female that sex can be designated as unknown on state records “when sex cannot be medically determined for developmental or other reasons.”

West Virginia's proposal specifically states that someone who is intersex is “not considered a third sex.” But the measure says people with a "medically verifiable” diagnosis of it should be accommodated.

Before this year, Kansas and Montana, North Dakota and Tennessee had enacted laws defining man and woman in state code. Oklahoma — where advocates say a law restricting bathroom access helped create a climate that led to the bullying of nonbinary teenager Nex Benedict, who died after a fight in a girls bathroom at a school — already has a measure by executive order, as does Nebraska.

Before Tennessee's law took effect, advocates held events to assist people on changing their names and gender identities on government documents.

“There's a lot of potential for harm that seems ready to explode at any moment,” said Dahron Johnson, of the Tennessee Equality Project.

In South Carolina, amendments have been proposed to the state constitution to narrowly define male and female. But the measures face an uphill battle in clearing the Legislature by an April 10 deadline in order to make this fall's ballot.

Opponents say efforts to codify sex are likely to face court challenges, just as other restrictions such as youth medical care have.

“We’ve already lost this case,” said Idaho Rep. Ilana Rubel, a Democrat who voted against a definition bill approved by the state's Republican-led House, predicting the state would get sued. “This is really just an unfortunate gesture that makes people in our community feel unwanted and unloved by their government.”

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DeMillo reported from Little Rock, Arkansas. Contributing to this report were Associated Press journalists Nick Ingram in Leavenworth, Kansas; Hannah Fingerhut in Des Moines, Iowa; Rebecca Boone in Boise, Idaho; Hannah Schoenbaum in Salt Lake City; and James Pollard in Columbia, South Carolina.