Op-Ed: The Signs and Boxes Tell Us So: On Sex Classification Policies

By Heath Fogg Davis

Sex-classification policies that bureaucratically and physically sort us into the binary categories of male or female may seem necessary and benign.  But I challenge this deeply rooted social and legal custom in my research by showing that legitimate policy goals such as fraud prevention, safety, security, privacy, and even fair athletic competition can often be met by alternative means that do not subject individuals to the harm of administrative gender judgment and exclusion.

Most cities and municipalities have interpreted their gender identity non-discrimination laws to require the assimilation of transgender and gender variant people into existing binary sex-classification policies.   Philadelphia, for example, now requires all new city-owned buildings to provide gender-neutral restrooms in addition to traditional sex-segregated restrooms.  But why not use gender identity nondiscrimination laws to question the need for traditional sex-segregated bathrooms, locker rooms, and retail store fitting rooms?

Some restaurants in Manhattan and Philadelphia have built a series of gender-neutral floor-to-ceiling partitioned bathroom stalls around a common area of sinks and mirrors.  The floor-to-ceiling partitions establish privacy.  Not only is this a more efficient use of space, it also eviscerates the impulse that some people feel to police public restrooms for individuals who appear too masculine or too feminine, or too androgynous to be sharing a restroom with them.  Moreover, caretakers of opposite gender children and adults would be allowed to monitor and attend to those in their care without having to enter or bring someone else into the “wrong” bathroom.

We assume that gender markers are necessary for the provision of medical care.  But “male” and “female” are not always accurate proxies for a person’s physiology and endocrinology.  The goal in a medical setting is to administer the best health care to a particular patient.  If, for example, a physician or dentist wants to know if a person is pregnant or may be pregnant due to the damaging effects of x-rays on a developing fetus, then that question should be asked directly instead of using sex markers as a proxy for that possibility.  Some transgender men who have uteruses and ovaries can become pregnant, and some cisgender women cannot.  Some transgender women have prostate glands, and some do not.  Sometimes a person’s transgender experience is relevant to medical care and sometimes it is not.

In sports, sex markers serve the twofold goal of attempting to level competitive advantage and facilitating same-gender social bonding.  The International Olympic Committee and the NCAA currently require that any female with a testosterone level in the normal male range may not compete as female, but may compete as male under the reasonable contention that higher testosterone levels increase physical strength and endurance.  In non-elite athletics such a college club sports and recreational athletics, sex-segregated softball teams can be justified by the desire for same-sex social bonding.  But when the competitive stakes are low, deference should be given to gender self-definition.

A major part of the justification for women’s only colleges such as Mount Holyoke, Mills, Smith, Wellesley, and Barnard is to remedy historical and ongoing institutional sexism by providing a space for female leadership, social bonding and professional networking within a larger male-dominated society.  These private schools are exempt from Title IX, the 1972 federal law barring sex discrimination in public education.  But that does not foreclose the question of whether Mount Holyoke’s recent decision to open its admissions process to everyone except for male-born and male-identified people, is the only or best way to achieve the legitimate and important goal of undermining institutional sexism.

A world with fewer sex classification policies would not be a world without gender distinctions.  What sometimes gets overlooked in the current media treatment of transgender civil rights is the fact that many transgender people feel a strong attachment to the male-female binary.  Even those who are grouped under the transgender umbrella and define their gender as neither male nor female, gender fluid or gender variant are using the gender binary as something to push against.  Gender theorists such as Judith Butler and Jack Halberstam are often misread as wanting to obliterate gender, when in fact they both argue that binary gender, although neither innate nor linked to particular bodies, anchors all of our social interaction. It is precisely because gender identity is so important to us that we should take care not to institutionalize situations that deprive individuals of the authority to embody and enact the gender identity that feels most right to them.

Of course sex-classification policies do not require or explicitly sanction transgender discrimination.  Just because the person managing a Starbuck’s with separate male and female single-stall restrooms, or charged with processing sex-marked job or college application forms has the administrative power to inspect and evaluate gender in discriminatory ways does not mean that she or he will do so consistently, or ever.  The problem is that sex-classification policies prompt and permit this kind of gender policing, which is always complicated by intersectional race and class judgments that are also often irrelevant to the policy goal at hand.  It is the arbitrariness of this policing and enforcement that is the hallmark of gender identity discrimination.  One never knows when one will be subjected to de jure or de facto gender policing.  But one knows that such policing is administratively possible.  The signs and boxes tell us so.

Heath Fogg Davis is a scholar-activist whose work in classrooms, boardrooms, community centers, companies, and media explores forms of discrimination that are marginalized by mainstream race, gender, and sexuality civil rights narratives. His current book project Sex Classification and (Trans)gender Discrimination investigates the widespread, discriminatory use of sex classification in education, public accommodations, sports, and government policy.