A Doctor’s Case Against Assigning Sex at Birth
Doctors assign their best guess at sex based on a cursory visual examination of an infant’s genitals. But, what if they didn’t?
Opinion, by Emry Cohen, MD
On April 4th, the New York Times ran an opinion piece by Alex Byrne and Carole Hooven about why the phrase “Assigned Sex at Birth” is ‘problematic’. The result was an essay so saturated with anti-trans and right-wing buzzwords that may not really hit home unless you are online as much as they are.
Anti-trans rants in the Times have become commonplace, and little has changed since a group of trans, non-binary, and gender non-conforming New York Times contributors published a letter to the Times Standards editor condemning the paper’s coverage of trans, non-binary, and gender non-conforming people over a year ago. But, moving past the fact that the Times decided to platform a Fox News’ Contributor and outspoken anti-DEI “martyr” (big, big air-quotes), maybe it’s time to examine the phrase “Assigned Sex at Birth” and asking ‘why do we even assign sex anyways?’
Despite only being added as recently as 2022 to publications such as the Diagnostic and Statistical Manual of Mental Disorders, the concept of birth-assigned sex has been around for thousands of years. Simply put, for almost all of human history, we lacked any tools to designate sex besides our own eyes. Of course, human eyes are not perfect. Our ability to assess sex is limited to the superficial features and have lacked the possibility of seeing deeper to natural variations in human anatomy and gender expression that have always existed beneath the surface.
It was not until 1923 that Theophilus Painter discovered the X and Y sex chromosomes, which was later confirmed by Tijo and Levan in 1956 where they were able to definitively describe human chromosomes. For those keeping track at home, this means that our knowledge of chromosomes and any of the resultant deeper understanding of sex occurred three years after Christine Jorgensen trail-blazed her way to international fame by transitioning to become a woman in the early 1950s. This idea that birth-assigned sex is a new fad being pushed by transgender people over the past decade is simply not rooted in history or reality.
‘But, surely there has been a push over the past 70 years to shift away from sex assigned at birth, right?’, you might ask. Well, actually, no. Recent medical advancements have allowed us to sample the fetal genome with the advent of amniocentesis, chronic villous, and most recently cell-free DNA. However, the American Journal of Obstetrics and Gynecology still only recommends these tests for pregnancies where the pregnant person is over 35 years old at delivery, has abnormal antenatal imaging or labs, or has a history of gene abnormalities in themselves or a prior pregnancy. Moreover, the progress made in the technology surrounding fetal ultrasound has made it even easier to identify landmarks, including genitals, as part of the routine anatomy scan. Aside from a correlating increase in gender reveal parties, this has done little but expedite the assigning of sex as ultrasound still typically relies on visualizing the external genitalia of the fetus.
“Our traditional understanding of sex” as Byrne and Hooven nostalgize it, notably does not include intersex people. However, for as long as we have been assigning sex at birth, there have been those who did not fit into a standard male or female box. In fact, some laws from the 12th century and 17th century carve out places for people whose sex could not be assigned visually at birth.
Today, we use the umbrella term ‘intersex’ to describe a wide range of natural variations in sex characteristics that do not fit into our typical binary notions of male or female bodies. It has been estimated that between 0.05 percent and 1.7 percent of the population is born with intersex traits. (To put that into perspective, based on US census data, 160,000 to 1.5 million Americans fall under the intersex umbrella, somewhere between the populations of Providence, Rhode Island and South Carolina.) While doctors in the past have tried to correct intersex traits during infancy, it is important to stress that being intersex is a natural occurrence and not something that requires fixing. And, while some intersex traits are present at birth and unmissable, some do not present until adolescence or adulthood.
So, if we aren’t using chromosomes and even our visual inspections are occasionally unreliable, is assigning sex at birth even worth it? I would argue, no. All we are doing is making a split second decision of a baby immediately out of the womb. What then follows is a lifetime of growth, development, and hormonal changes that factor into what we know as sex.
Why do it then? Because our brains are designed to try to put things into boxes and categories. It makes things simpler to understand, easier to predict outcomes. But if we truly want to do right by children as they come into the world, we need to deconstruct those boxes. We need to understand that a person is more than a visual inspection of genitals, and that while certain sex traits carry risk factors, we shouldn’t risk missing a diagnosis because we don’t associate a disease with their particular genitals.
An emerging solution to this problem uses SOGI data, data on sexual orientation and gender identity taking us well beyond a simple M/F binary. While originally geared to inclusivity of LGBTQIA+ people in the healthcare model, many hospitals are now expanding their SOGI programs to include cisgender and heterosexual patients. Being able to keep track of previous surgeries, relevant anatomy, and lifestyle factors can help us better understand our patients and treat them with the best care possible. Better care than can be provided by an arbitrary “truth” that we decided in the first 30 minutes of life.
CORRECTION: An earlier version of this story included a miscalculation of what 0.05 percent of the U. S. population is.
Emry Cohen is a trans physician with a passion for transgender healthcare and patient advocacy. As a prior collegiate athlete and Navy veteran, they offer a unique perspective on many of the challenges facing the trans community.