USCA11 Case: 18-13592 Document: 304-1 Date Filed: 12/30/2022 Page: 61 of 150
For argument’s sake, I adopt the Majority’s succinct definition of biological sex: sex based on chromosomal structure and anatomy at birth. Under this definition, assigning sex at birth is typically a non-issue. Any person who has been in a delivery room knows that doctors routinely and with little effort ascertain an infant’s biological sex. For this reason, it is easy to presume that identifying biological sex is per se accurate and correctly determinable in the first instance.
However, there are thousands of infants born every year whose biological sex is not easily or readily categorizable at birth. As Allan M. Josephson, M.D., an expert witness for the School Board, explained, “there are rare individuals who are delineated ‘intersex’ because they have physical, anatomical sex characteristics that are a mixture of those typically associated with male and female designations (e.g. congenital adrenal hyperplasia).”
The word intersex is an umbrella term describing a range of natural physiological variations—including external genitals, internal sex organs, chromosomes, and hormones—that complicate the typical binary of male and female. Intersex is not a gender identity nor a sexual orientation, but rather a way to describe conditions of physiological development. These variations occur for a variety of reasons, and the consequent developmental variations may become apparent at different ages. Intersex people have been
