Trump’s dumb attempt to define sex

(When I started to write this post, I thought it would be a neat little think piece about science, policy, and meaning. But given how much more is going on, it now fells a bit academic. Nevertheless, I took the time to write it, so I might as well hit the Publish button…)

Trump’s anti-transgender executive order^[1]The one from last week, not the new ones from this week. Sorry, but I write slower than Trump bigots. has some surprising definitions of terms:

Sec. 2.(a) “Sex” shall refer to an individual’s immutable biological classification as either male or female. “Sex” is not a synonym for and does not include the concept of “gender identity.”

…

Sec. 2.(d) “Female” means a person belonging, at conception, to the sex that produces the large reproductive cell.

Sec. 2.(e) “Male” means a person belonging, at conception, to the sex that produces the small reproductive cell.

Some people have been commenting on the strangeness of specifying the size of the reproductive cell — referring to human eggs and sperm — as the distinguishing characteristic of the sexes, but that’s actually a common definition of sex in the science of biology, and I’d like to talk about it.

This method of defining the sexes makes use of an observed phenomenon called anisogamy, which just means that the cells used in sexual reproduction, called gametes, are of significantly different sizes. Biologists like this definition because it has wide application: Pretty much every multi-cellular sexually-reproducing organism, plant or animal, has gametes of two different sizes. For any given species, an organism that produces large gametes is defined as female, and one with small gametes is defined as male.

This system of sexual classification is also tied to some interesting evolutionary ideas: Since the female’s gametes are larger, it takes more effort to create them, and consequentially the female has a greater stake in the resulting fertilized egg. That greater stake, in turn, means the female has more to lose if the offspring do not thrive, thus creating evolutionary pressure to make an ever greater investment in ensuring reproductive success. This is probably the evolutionary reason why human females carry offspring internally for nine months and have specialized glands that allow them to nourish the offspring for years afterward, whereas the male’s biological contribution can be over in a few minutes.^[2]The same line of thinking implies that women will have stronger parental ties to their children and be more likely to care for them, although now we are veering into evolutionary psychology and this way lies a lot of misogynistic pseudoscience…

What about organisms, like certain flowering plants, that produce both large and small gametes? The gamete size definition still works: Organisms that produce both large and small games are both sexes, female because they produce large gametes and male because they produce small gametes. On the other hand, there are species such as fungi and certain types of algae that have isogamous reproductive cells — gametes that are all the same size. These species are not split into reproductive sexes. Instead, biologists sort isogamous species into groups according to a completely different mating type system…and there can be way more than just two types.

By now you may be asking yourself what the biological definition of sex has to do with people who are transgender or nonbinary or intersex?

I feel strongly that the correct answer is not much.

Words and their definitions are tools for thinking and communicating, and the biological definitions of the words “male” and “female” are tools that biologists use to think and communicate about biological things. Just because law, medicine, morality, psychology, policy, and culture also use the words “male” and “female” doesn’t mean they should have to use the same definitions as biologists.

Doctors, for example, determine a baby’s sex based on a set of observable characteristics, especially the external genitalia, which leads to a phenotypic definition of sex. They also use the terms “male” and “female,” but they are talking about a different method of classification that also includes a variety of uncommon ambiguous genital types usually grouped under the term “intersex.” I’m guessing that doctors use this definition of sex, rather than the gamete-size definition favored by biologists, because it is easier to determine at birth and more immediately useful in providing healthcare.

(Of course, neither genitalia nor gamete-producing cells are present during early embryonic development, so the use of “at conception” in Trump’s executive order makes no sense. Those two words seem to be serving a different agenda.)

Both biological and phenotypic sex are related to chromosomal sex, which is based on the the presence of XX or XY chromosomes in the 23rd chromosome pair, with XX being “female” and XY being “male.” Since the chromosome provides the genetic map that controls how the body grows, you’d think that female chromosomal sex imply female genitalia and the associated sites for producing female gametes, but that’s not always the case. The process through which genes are expressed as anatomy isn’t as straightforward as we might think, and XX and XY aren’t the only possible sex chromosomes.

Then there’s a person’s gender as used by the transgender community, which is based on a self-identified role, chosen from a complicated set, or perhaps a spectrum, of possible genders, including “male” and “female.” Thankfully, discussions of transgender issues almost exclusively use the word “gender” instead of “sex,” which makes it a lot less likely to confuse gender with chromosomal, phenotypic, or biological sex.

Granted, it would be nice if everyone used the scientific definition. Science is a structured method of gathering and curating knowledge about reality, so scientific definitions tend to be well thought-out and useful. But these different ways of defining sex (or gender) serve different purposes.

It’s kind of like the way the word “algorithm” means something very different to computer scientists and social media critics. In computer science, an algorithm is the set of calculations or operations needed to solve a problem. It’s basically the same as code in a computer program, but with the specific programming language or runtime environment abstracted away. So when someone says “Site X is showing me messages algorithmically, and I just want to see them chronologically,” us computer geeks get a little twitchy, because a chronological sort is an algorithm.

Nevertheless, the engineering team at Site X will know what users are asking for, because while they use a different definition of algorithm, engineers understand what the social media critics are saying when they use the same word for a different concept.

Finally, note that Trump’s executive order isn’t about any of the definitions of “sex” (or the related “gender”) that I’ve mentioned so far. Here’s what the order has to say about the scope of its definitions:

Sec. 2. Policy and Definitions. It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality. Under my direction, the Executive Branch will enforce all sex-protective laws to promote this reality […]

Trump’s executive order is purporting to define sex for the purposes of U.S. policy. We might as well call that policy sex.

This is where it gets stupid, because Trump is trying to define policy sex in terms of biological sex. But biological sex is defined in terms of gamete sizes, which means that government functionaries using these definitions of sex would have to perform an invasive medical examination. That’s a ludicrous thing to do for most of the scenarios anti-trans folks keep bringing up, such as competing in sporting events or using public bathrooms. You could argue that enforcers of these polices could use some other method to make a determination of gamete size — e.g. by assuming that penis-having people have small gametes — but that would be effectively the same as changing the definition to one based on phenotype.

Furthermore, presidential executive orders can always be countermanded by the next president, so the executive order isn’t really defining policy sex, it is only defining Trump Administration policy sex. And it’s still an unwieldy definition.

The policy heading also mentions “law,” and I think we can object. The President does not have the power to change the law. Only Congress gets to say what the law is. I guess a lawyer would probably say that the courts create law too, by interpreting and applying the statutes, thus creating case law. But either way, changing the law is not a presidential power, so I don’t see how Trump could change the legal definition of sex with an executive order.

The order does refer to enforcement of laws, which is an executive branch power, so maybe Trump can direct law enforcement and regulatory agencies to use this definition in areas where Congress has not specified, explicitly or implicitly, the definition of sex to be applied. But that still doesn’t get around the fact that using the biological definition is still going to require medical testing.

In the end, this executive order is the anti-trans equivalent of virtue signaling. It isn’t well thought out, and it doesn’t do much, but someone in Trumps team probably feels very pure for having written it.