Crying Foul: The Myriad Threats of Anti-Trans Legislation

Crying Foul: The Myriad Threats of Anti-Trans Legislation

Elizabeth Reis

Anti-trans bills are popping up all over the place in various contexts. Some are meant to restrict trans girls and women from playing on sports teams; others are meant to deny gender-affirming care for transgender children. Such legislation is unquestionably horrible for trans people. Recently, I heard a sad story about a mother afraid to take her young child to their pediatrician for a routine check-up, worried he would report her to child protective services.

These bills threaten harm not only to the trans individuals they target but to all of us, including the just as vulnerable intersex community. In fact, the only group of people for whom this legislation represents a “win” are the misguided Republican lawmakers who sponsor them. Playing dangerous culture-war games, they insist ignorantly that the difference between the sexes is always obvious, unyielding, and distinct. They foment hysteria and spread misinformation about transgender and intersex realities as they impose their will on bodies at risk.

There are two ways in which the anti-trans bills are bad for intersex kids. “Intersex” refers to people who are born with genital, hormonal, and/or chromosomal differences. For example, a baby girl born with Complete Androgen Insensitivity Syndrome (CAIS) will look just like a typical baby girl at birth, raising no immediate questions about her sex. But when she doesn’t begin to menstruate at puberty, doctors might discover that instead of ovaries, a uterus, fallopian tubes, and XX chromosomes, she has internal testes and XY chromosomes. CAIS is just one of many intersex conditions. Other intersex traits are more recognizable at birth and physicians have tried to surgically “fix” them, often with disastrous consequences. Babies born with an enlarged clitoris, for example, have been subjected to surgical “correction,” so that the clitoris conforms to “average” size, even though the procedure can produce scar tissue and degrade sexual sensation. Indeed, intersex activists have been working for decades to convince physicians to hold off on these infant genital surgeries until children are old enough to decide how they want their bodies to look and to function.

Now imagine that a girl child born with an intersex trait is a standout softball athlete in middle school and is encouraged to pursue the sport in high school. Let’s say that this girl is a pitcher with an incredible fastball. Her pitch keeps her opponents on their toes, but someone points to the fact that she presents as a tomboy to question her status as female. The Ohio bill (HB 151) states that if a team member’s sex is disputed (by anyone, perhaps the disgruntled or jealous parent of another competitor), then the participant needs to obtain a signed physician’s statement indicating their sex “based only on: (1) The participant’s internal and external reproductive anatomy; (2) The participant’s normal endogenously produced levels of testosterone; (3) An analysis of the participant’s genetic makeup.”

The language oversimplifies sex, disregarding the fact that sex is a complex phenomenon and not as simple as “male” or “female.” Born with a unique combination of biological indicators of sex – genitals, gonads, hormone levels, and chromosomes – is exactly what makes intersex kids a little different from typical girls and boys. But atypicality is hardly tolerated when assigning sex: all children are unambiguously designated as either “female” or “male” at birth. Later challenges against those born with an intersex trait will certainly cause harm through their intrusive and traumatic accusations and physical inspections. That invasive medical scrutiny is likely to become public once a doctor confirms their intersex status, as teammates, parents, and others indulge their curiosity about why the child in question is no longer playing. Intersex kids have it hard enough, often enduring medical intervention from an early age, and many experience unwarranted shame and stigma, even within their own intimate family circle.

Invasive bodily inspection may well extend even to kids who are not intersex or trans-identified, who could become the object of painful (both psychologically and physically) internal vaginal exams required to “prove” their status as “real girls.” Will all girls who fail to conform to prescriptive ideals of femininity become vulnerable to this kind of questioning? If the world of professional sports is any guide, we can expect that most of the attention will focus on girls and women of color among those who seem to diverge from the feminine ideal.

Some recently proposed legislation presents a second type of threat. These bills aim to abolish access to gender-affirming health care for transgender youth, and in the process, they inadvertently harm intersex kids. Laws that make it a misdemeanor to provide puberty blockers, hormones, or other gender-affirming treatment for teenagers have typically exempted intersex children from their prohibitions. A South Dakota anti-trans bill, for example, specified that it’s permissible for doctors to continue their medical interventions on intersex children, those with a “medically-verifiable genetic disorder of sex development.” (Note the bias of the terminology itself, with its needlessly scary designation of intersex conditions as “disorders.”) Ironically, this legislation deemed it reasonable to subject intersex children to the same hormones and surgeries that transgender children are denied, all in the service of creating “normal” bodies and supposedly “protecting kids from harm.” The proposed law’s exemption – its essential endorsement – of intersex genital surgeries betrayed the lawmakers’ medical ignorance and their commitment to regulating bodies and imposing so-called “normal” sex and gender binaries.

Both types of bills are misguided and dangerous. Teens should participate in surgical decisions about their bodies, whether they are cis, trans, nonbinary, endosex, or intersex. And they should also participate in sports if they are so inclined, without fear that their bodies will be ridiculed, inspected, and ultimately punished for who they are and for having the bodies they have.

Featured image caption: Trans rights march in 2017. (Courtesy Ted Eytan/Flickr)


Elizabeth Reis is a professor of gender and bioethics at the Macaulay Honors College at the City University of New York. She is the author of Bodies in Doubt: An American History of Intersex, which was recently published in a 2nd edition, and Damned Women: Sinners and Witches in Puritan New England. She is also the editor of American Sexual Histories: A Social and Cultural History Reader.