A binary gender perspective assumes that only men and women exist, obscuring gender diversity and erasing the existence of people who do not identify as men or women. A gendered assumption in our culture is that someone assigned female at birth will identify as a woman and that all women were assigned female at birth. While this is true for cisgender (or “cis”) individuals—people who identify in accordance with their gender assignment—it is not the case for everyone. Some people assigned male at birth identify as women, some people assigned female identify as men, and some people identify as neither women nor men. This illustrates the difference between, gender assignment, which doctors place on infants (and fetuses) based on the appearance of genitalia, and gender identity, which one discerns about oneself. The existence of transgender people, or individuals who do not identify with the gender they were assigned at birth, challenges the very idea of a single sex/gender identity. For example, trans women, women whose bodies were assigned male and who identify as women, show us that not all women are born with female-assigned bodies. The fact that trans people exist contests the biological determinist argument that biological sex predicts gender identity. Transgender people may or may not have surgeries or hormone therapies to change their physical bodies, but in many cases they experience a change in their social gender identities. Some people who do not identify as men or women may identify as non-binary, gender fluid, or genderqueer, for example. Some may use gender-neutral pronouns, such as ze/hir or they/them, rather than the gendered pronouns she/her or he/his. As pronouns and gender identities are not visible on the body, trans communities have created procedures for communicating gender pronouns, which consists of verbally asking and stating one’s pronouns (Nordmarken, 2013).

The existence of sex variations fundamentally challenges the notion of a binary biological sex. Intersex describes variation in sex characteristics, such as chromosomes, gonads, sex hormones, or genitals. The bodies of individuals with sex characteristics variations do not fit typical definitions of what is culturally considered “male” or “female.” “Intersex,” like “female” and “male,” is a socially constructed category that humans have created to label bodies that they view as different from those they would classify as distinctly “female” or “male.” The term basically marks existing biological variation among bodies; bodies are not essentially intersex—we just call them intersex. The term is slightly misleading because it may suggest that people have complete sets of what would be called “male” and “female” reproductive systems, but those kinds of human bodies do not actually exist; “intersex” really just refers to biological variation. The term “hermaphrodite” is therefore inappropriate for referring to intersex, and it also is derogatory. There are a number of specific biological sex variations. For example, having one Y and more than one X chromosome is called Kleinfelter Syndrome.

Does the presence of more than one X mean that the XXY person is female? Does the presence of a Y mean that the XXY person is male? These individuals are neither clearly chromosomally male or female; they are chromosomally intersexed. Some people have genitalia that others consider ambiguous. This is not as uncommon as you might think. The Intersex Society of North America estimated that some 1.5% of people have sex variations—that is 2,000 births a year. So, why is this knowledge not commonly known? Many individuals born with genitalia not easily classified as “male” or “female” are subject to genital surgeries during infancy, childhood, and/or adulthood which aim to change this visible ambiguity. Surgeons reduce the size of the genitals of female-assigned infants they want to make look more typically “female” and less “masculine”; in infants with genital appendages smaller than 2.5 centimeters they reduce the size and assign them female (Dreger 1998). In each instance, surgeons literally construct and reconstruct individuals’ bodies to fit into the dominant, binary sex/gender system. While parents and doctors justify this practice as in “the best interest of the child,” many people experience these surgeries and their social treatment as traumatic, as they are typically performed without patients’ knowledge of their sex variation or consent. Individuals often discover their chromosomal makeup, surgical records, and/or intersex status in their medical records as adults, after years of physicians hiding this information from them. The surgeries do not necessarily make bodies appear “natural,” due to scar tissue and at times, disfigurement and/or medical problems and chronic infection. The surgeries can also result in psychological distress. In addition, many of these surgeries involve sterilization, which can be understood as part of eugenics projects, which aim to eliminate intersex people. Therefore, a great deal of shame, secrecy, and betrayal surround the surgeries. Intersex activists began organizing in North America in the 1990s to stop these nonconsensual surgical practices and to fight for patient-centered intersex health care. Broader international efforts emerged next, and Europe has seen more success than the first wave of mobilizations. In 2008, Christiane Völling of Germany was the first person in the world to successfully sue the surgeon who removed her internal reproductive organs without her knowledge or consent (International Commission of Jurists, 2008). In 2015, Malta became the first country to implement a law to make these kinds of surgeries illegal and protect people with sex variations as well as gender variations (Cabral & Eisfeld, 2015). Accord Alliance is the most prominent intersex focused organization in the U.S.; they offer information and recommendations to physicians and families, but they focus primarily on improving standards of care rather than advocating for legal change. Due to the efforts of intersex activists, the practice of performing surgeries on children is becoming less common in favor of waiting and allowing children to make their own decisions about their bodies. However, there is little research on how regularly nonconsensual surgeries are still performed in the U.S., and as Accord Alliance’s standards of care have yet to be fully implemented by a single institution, we can expect that the surgeries are still being performed.

The concepts of “transgender” and “intersex” are easy to confuse, but these terms refer to very different identities. To review, transgender people experience a social process of gender change, while intersex people have biological characteristics that do not fit with the dominant sex/gender system. One term refers to social gender (transgender) and one term refers to biological sex (intersex). While transgender people challenge our binary (man/woman) ideas of gender, intersex people challenge our binary (male/female) ideas of biological sex. Gender theorists, such as Judith Butler and Gayle Rubin, have challenged the very notion that there is an underlying “sex” to a person, arguing that sex, too, is socially constructed. This is revealed in different definitions of “sex” throughout history in law and medicine—is sex composed of genitalia? Is it just genetic make-up? A combination of the two? Various social institutions, such as courts, have not come to a consistent or conclusive way to define sex, and the term “sex” has been differentially defined throughout the history of law in the United States. In this way, we can understand the biological designations of “male” and “female” as social constructions that reinforce the binary construction of men and women.