This piece was originally published in Sightings by the The Martin Marty Center for the Public Understanding of Religion.
Last month the New York Times reported that the Trump administration may seek to legally define sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.” A draft memo at the Department of Health and Human Services (HHS) proposes that “[the] sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”
The memo seeks to address legal issues raised by transgender persons. It banks on a distinction between sex as defined above and gender identity, an individual’s persistent perception of themselves as a girl or a boy, man or woman (or sometimes a combination of both or neither). When there is a conflict between these two categories, as there is for transgender individuals, the memo suggests that assigned sex trumps self-perception.
The memo’s proposal is couched in sensible language: sex should be defined “on a biological basis that is clear, grounded in science, objective and administrable.” But the practical result of such a policy, the Times article suggests, is to end the federal recognition of some 1.4 million Americans who have “opted to recognize themselves—surgically or otherwise—as a gender other than the one they were born into.”
Though presented as an objective discourse, the reasoning behind the HHS memo is driven by culturally—including religiously—constructed gender roles. Elsewhere the memo’s author has presented concerns for maintaining separate, gendered social spaces (e.g., bathrooms, changing rooms, etc.) and excluding medical transitioning (e.g., surgeries, hormone treatments) from federal mandates for insurers and health care providers.
Op-Ed pieces, transgender activists, and political pundits have offered a host of in-depth political analyses in recent weeks. However, fewer religious contributions have been made. Sightings invites us to reflect on, among other things, the potential contributions of the study of religion to public conversations on contemporary issues like this one. With this in mind, I’d like to take a moment to think about sources for theological reflection within the Christian tradition that might inform the broader discussion.
Though feminist and LGBT/Queer biblical interpreters have offered a variety of readings, scripture is of little help in the current conversation. It merely leads to proof-texting debates. The same gendered lens that imbues the male and female of Genesis 1:27 with separate, immutable essences ignores that the first woman was fashioned from the flesh and bone of the first man in Genesis 2:21-23. The authors of these passages were simply not concerned with chromosomes. Rather, they affirmed that all human beings are created in the image of God and share a common physical reality.
Without much help from scripture, we turn to Christian tradition. The church fathers and mothers, informed by a Neoplatonic worldview, believed in an ungendered rational soul, created in the image of an ungendered God. Their teaching has informed theologians for centuries. It would take German Romanticism’s love of binary oppositions to bring the idea of male and female gendered principles, inspired by the pairing of gendered souls in Jewish mysticism, to such disparate modern theologians as Sergius Bulgakov, Karl Barth, and John Paul II.
The tradition is also rich and varied in reference to our physical bodies. Augustine writes that sexed bodies are an original feature in Eden. And though human beings will no longer procreate, the bishop of Hippo teaches that sexual differentiation will carry through in the glorified bodies of the resurrection.
In contrast, Gregory of Nyssa suggests that male and female human attributes are but accommodations of our current “garments of skin.” Sexed bodies serve as the means for reproduction to populate the earth with God’s preordained complement of human beings, but these features will no longer exist in the eschaton.
Reason also plays an important role in the current discussion. While the administration’s appeal to chromosomes as a final arbiter of sex sounds reasonable enough, the realities of human biology are far more complicated. For instance, at the embryonic stage, each typical human possesses the same tissues. A tiny mass known as a genital tubercule can become either a penis or a clitoris. The labioscrotal swellings, as their name implies, become either a vulva or fuse to form a scrotum. Each typical embryo possesses tissues with the potential to become an ovary or a testis. The atrophy of one organ and development of the other is the result of hormonal production directed by two separate and competing networks of genes.
In typical fetal development, a variety of physical structures (chromosomes, gonads, internal reproductive structures, genitalia, etc.) tend to develop along one of two lines. These are accompanied by particular combinations of hormones that affect less visible differences such as those in brain development. Sometimes these factors do not align in the typical fashion. For example, a child may have a Y-chromosome but be born with a vagina. While chromosomally male, these children generally perceive themselves as girls and often marry men later in life. Other individuals may have both testicular and ovarian tissue. These are but two examples of what are now called intersex conditions.
Some religious scholars have attempted to differentiate between intersex and transgender phenomena. However, this distinction fails to acknowledge that the human brain also appears to be a sexed organ. Bathed in hormones at crucial points in the developmental process, the human brain changes in ways that we still do not fully understand. But one of the results is the persistent self-perception of gender, independent of other biological factors. Thus, it is not unreasonable to include transgender persons under the intersex umbrella.
Finally, experience may also provide useful insights. Often missing from discussions of transgender persons, both in our religious communities and society more broadly, is any actual discussion with transgender persons. Yet within many Christian traditions, collective experience—especially of the group’s own members—is a crucial part of theological reflection. The Wesleyan quadrilateral, the Catholic sense of the faithful, and Orthodox sobornicity all value the experiences of the Church’s many members. Within modern democratic societies, minority reports are also valued for their insights into systemic inequities and their potential contributions to the whole.
Scripture, tradition, reason, and experience do not speak univocally. While their reports may vary, these sources emphasize the dignity of the human person, created in the image of God. If nothing else, they should caution us against hasty decisions that prioritize a particular biological phenomenon over the well-being of unique and varied human persons. The reaction prompted by the leak of the HHS memo indicates a need to pause and reflect. Defining sex by the presence or absence of a penis at birth or even a genetic analysis is, by design, a move intended to strip hard-won protections from an already marginalized and vulnerable population. The veiled threat to define transgender out of existence does nothing to strengthen our larger society or to promote the dignity of all human persons.
Image: Transgender rights activists protest outside the White House (Photo Credit: Sarah Silbiger | NYT/Redux)