A Proposed Utah Bill Defining Biological Sex Points to the Future of Anti-Trans Legislation

As long as the government can meddle with documents and doctors, trans people are at risk.

A gender marker circled on a birth certificate
Photo illustration by Slate. Photo by Stu49/iStock/Getty Images Plus.

In late January, a Republican state representative in Utah filed a bill to enshrine a strict definition of biological sex in state law and make it illegal for transgender people to update the sex on their birth certificates. The bill would define males and females based on the presence of testes or ovaries and how their external genitalia appear at or before birth, mandate that all children are designated either male or female on their birth certificates, and forbid changes except in the case of a “factual error.” While it seems unlikely to pass—particularly after that the governor of Utah stated his opposition to it—it’s an example of how vulnerable trans people are to bureaucratic shifts as “trans rights” continue to solidify as a cultural wedge issue.

Most Americans barely notice that one’s sex is marked on all major identifying documents, or that such documents are needed for everything from buying liquor to flying to getting a job. Although it’s not exactly necessary for a bartender or an airline to know your sex, it’s invisible and frictionless for most people to have it on their IDs. For trans people, however, these documents become an advertisement of difference, a tipoff that a person has transitioned. The wrong sex listed on a license can lead to harassment at the bar or a job offer being rescinded: One trans guy I know was hired as a mechanic before his document change went through, and he was outed as trans to the other workers by his employer after he brought his license in on the first day. He eventually quit and started again at a shop where his transition history was not known.

Currently, Utah is one of the few states that has no clear process for changing the sex listed on a birth certificate; however, either a birth certificate or a passport with the updated sex is necessary before a person can change the sex marker on their driver’s license, the form of ID we use most day to day. The proposed law is an extreme example of the means states could use to target trans people: By making it impossible or illegal to change one’s gender marker, a state like Utah could essentially force trans people to out themselves everywhere they go, stripping them of any chance at privacy in their personal affairs. This outcome is both a goal in itself for bigots who want trans people to be easily identifiable so as to make discrimination against them easier and a method of keeping people in the closet by making life as hard as possible for those who do transition.

Most states require a doctor’s letter verifying a medical transition in order to change the gender designation on documents, so the process is already expensive and time-consuming. This proposed Utah law is only one extreme example of the many ways the process could become even more onerous. More subtle attacks could include directly raising fees, specifying which medical procedures are required for a “complete” gender change, increasing wait times before a person can claim to have transitioned, or requiring other similarly ginned-up hoops.

Another avenue for legislatures on the cutting edge of anti-trans bigotry to explore would be to try to regulate the medical treatments trans people undergo. Conservatives have already employed this strategy as a means of limiting access to both abortions and birth control, so it’s not much of a stretch to imagine that they could come up with hurdles or red tape designed to discourage or price out patients seeking cross-sex hormones or gender-affirming surgery. Restrictions on cross-sex hormones could be justified by raising fears that trans people might come to regret the decision to transition, or by inflating minor side effects to make safe, well-tolerated drugs sound frightening and strange. Of course, any restrictions aimed at transitioners would likely also affect patients who weren’t trans. For instance, many of the hormone therapy drugs used by trans women double as birth control, though this seems unlikely to deter conservative legislators.

Although trans activists can—and do—fight to reduce legislative hurdles, lower fees, and make the process for changing one’s sex on official documents simpler, a better solution might be to do away with sex markers on official documents entirely. While this argument has the ring of certain radical queers and libertarians who advocated abolishing state-administrated marriage rights instead of pursuing marriage equality for same-sex couples, it’s actually more straightforward. The government doesn’t actually need to keep track of the sex of citizens on birth certificates, driver’s licenses, or anywhere else! Men and women have equality under the law, so there’s no good reason anyone would need to carry around an ID card indicating their sex. While an individual’s place of birth is relevant for citizenship, their sex at birth is not.

Another idea (which may sound more familiar) would be to leave decisions about medical care to patients and their doctors. It’s good to make legislation more inclusive of trans people. But it would be even better if we could do away with unnecessary sex categorization altogether. Ultimately, trans people are vulnerable to legislative meddling because the laws on the books are overly and unnecessarily concerned with dividing us by sex. Until this changes, trans people will continue to be vulnerable to the whims of legislators, judges, and bureaucrats.