Texas just defined man and woman. Here's why that matters.

Yahoo

4 days ago

The Texas Legislature has passed a bill that strictly defines man and woman based on reproductive organs. The bill has no civil or criminal penalties attached, but instead will take these new definitions and apply them across state records.
When Gov. Greg Abbott signs House Bill 229, Texas will become the 14th state to implement one of these so-called 'sex definition' laws in recent years. Supporters of the legislation say it's necessary to protect women's rights and spaces, and the immutable differences between the sexes.
Opponents say it's an attack on trans people, erasing them from state records as the gender they identify as and forcing them to live as the sex they were assigned at birth. They criticize the bill as problematic for intersex people who are born with characteristics from both sexes.
But mostly, there's widespread confusion about what will actually change as a result of this law.
'The question of the hour is how will [HB] 229 be enforced and applied,' said Sarah Corning with the ACLU of Texas. 'What we do know is that it's incredibly disrespectful to so many Texans the Legislature represents, and completely disregards their identity.'
The bill defines 'female' and 'woman' across the government code as an individual whose biological reproductive system is developed to produce ova. A 'male" and "man" are individuals whose systems are developed to fertilize the ova of a female.
After an amendment added in the House, the bill says intersex people are not considered a third sex, but 'must receive accommodations in accordance with state and federal law.' All government entities are directed to collect data based on this binary.
The bill contains a legislative intent section which doesn't change state statute but is included as guidance on interpreting the bill. It says that men and women possess 'immutable biological differences,' including that women can get pregnant, give birth and breastfeed children, and men are, on average, bigger, stronger and faster than females. Women are more physically vulnerable to violence and have historically suffered discrimination, warranting the creation of single-sex spaces, like locker rooms, bathrooms, prisons and shelters.
It also says that 'in the context of biological sex … separate is not inherently unequal.'
'With this bill, women and girls will know that Texas has their back and will not allow hard-fought rights to be eroded by activists who seek to erase them,' said bill author Rep. Ellen Troxclair, a Republican from Lakeway, in a statement. 'There are pages and pages of references to 'man' and 'woman' in Texas code, which now refer to a specific, clear definition,"
Since 2017, Texas lawmakers have been attempting to legislate strict applications of sex in specific zones, like school sports and bathrooms. Some of these proposals have gotten wide support from the Republican-dominated chambers, while others have stalled out amid partisan fighting.
In the last two years, however, state legislatures across the country have begun considering these sex definition laws, which have a more sweeping application across state statute. At least thirteen states have passed legislation like this, many, including Texas', based on model language from a group called Independent Women's Voice.
The national political advocacy group has support from conservative activists like Riley Gaines, who lost out on a fifth place swimming trophy to a trans athlete and has said she was exposed to male genitalia in a women's locker room.
The push to strictly divide everyone into two sexes, male and female, based on biological differences, got a boost from President Donald Trump, who issued an executive order in January. Abbott followed suit, directing all state agencies to ensure that agency rules, internal policies, employment practices and other actions 'comply with the law and the biological reality that there are only two sexes — male and female.'
Texas voters are, largely, on board with this type of legislation — seven in 10 voters, and 94% of Republicans, believe the sex listed on a birth certificate should be the only way to define gender.
More than 120,000 Texans identify as trans, meaning the gender they identify as differs from the sex they were assigned at birth. Many of them have physically transitioned; some have obtained court orders to change their birth certificate or drivers' licenses.
Abbott's executive order, which was followed by an opinion from Attorney General Ken Paxton, directed state agencies to no longer recognize those court orders. Lawyers representing trans people anticipate that the state will not go back and reissue documents, but rather require they be changed when they need to be renewed.
This will inevitably lead to mismatched documents, Shelly Skeen, a lawyer with Lambda Legal, said earlier this month. Someone who presents as a man but has a driver's license that says they are female will have to out themselves every time identification is required. Plus, they may have other documents, like a passport, school records or medical documents that align with their gender identity, worsening the confusion, legal experts say.
Heather Clark, an Austin woman whose wife is transgender, told a Senate committee that it would be 'untenable' for her to carry documents that said she was a man.
'Anytime that she is required to show her driver's license, she could be compelled to explain why her appearance doesn't align with her documentation,' Clark said, adding that could happen anytime she flew, took money from the bank, applied for a job or voted. 'That creates ample daily opportunities for discrimination.'
Trans people and their advocates are preparing for the changes to drivers' licenses, birth certificates and other identity documents. But they're also trying to prepare for the unknown — all the other ripple effects this bill will have across their lives.
Laura Lane-Steele, a law professor at the University of South Carolina who studies gender and sex discrimination laws, said the application of these sex definition laws tend to be a 'big fat question mark.'
To fully understand the implications would require combing through state statute and applying this definition every time the words male and female are used. The language of the bill indicates it was motivated by keeping trans people out of bathrooms that align with their gender identity, but it doesn't attach criminal or civil penalties for using an opposite sex bathroom, for example.
'We'll have to see if the legislators really looked at the code to understand what unpredictable, unexpected implications this will have,' she said. 'You could foresee there being changes that are unanimously considered bad, no matter your political ideology, that they just weren't prepared for.'
One possible unintended consequence is for the approximately 1.7% of people who are intersex or born with chromosomal and physical differences to their reproductive organs, Democrats have argued. They raised examples of people with various conditions that would prevent them from falling into this definition based on reproductive organs.
'We can't forget that a certain population exists, and you can't necessarily force them to choose one or the other,' Dallas Rep. Jessica González said on the House floor.
Troxclair and others have argued that intersex people have long had a singular sex indicated on their birth certificates and drivers' licenses, and this would not change that. The bill that passed the Senate indicates that they are not to be considered a third, or separate, sex.
Democrats also raised questions about women who can't conceive, are post-menopausal, or are born without a reproductive system designed to produce ova. Troxclair said the bill should be interpreted to mean people who have systems that, if normally developed, would fit into these two categories — 'whether or not they are fully developed, whether or not they are capable of functioning.'
'We should not be boiling down a human's existence into one's ability to reproduce, because this is harmful, it is dangerous, and it is really freaking insulting,' González said.
When Kansas, Tennessee and Montana led the nation in passing these sex definition laws in 2023, they faced potential backlash from the federal government. Fiscal analysts in Montana estimated it would risk $7 billion in federal anti-discrimination funds, and Tennessee worried about $2 billion in federal education and health funds.
Texas is passing this law in a very different political climate, with a very different administration holding the purse strings. In April, the Trump administration briefly froze Maine's access to federal child nutrition funds because the state refused to bar trans athletes from youth sports.
'The federal government is definitely pushing a worldview similar to these state laws,' said Paisley Currah, a professor of political science at City University of New York. 'And that's concerning for people across the country, not just the states that have adopted these laws.'
Montana's sex definition law, which listed out more than 40 places it would be applied across state statute, was struck down by a state judge in February, who said it was 'facially unconstitutional' because it violates privacy protections and equal protection rights for trans people. Kansas' law is facing legal challenges from the ACLU, which say the law is unconstitutionally vague and should be interpreted in such a way that protects trans people.
Lane-Steele said there's a number of potential constitutional arguments against these laws, from privacy to free speech. Corning said the ACLU of Texas is closely watching to see how far Texas goes to implement this law. It's not clear to them whether it will narrowly apply to statistics and documents, as the language of the law says, or be used to pursue broader policy changes based on the legislative intent.
'If it starts being used that way, they'll definitely hear from us,' she said.
For mental health support for LGBTQ youth, call the Trevor Project's 24/7 toll-free support line at 866-488-7386. For trans peer support, call the Trans Lifeline at 877-565-8860. You can also reach a trained crisis counselor through the Suicide and Crisis Lifeline by calling or texting 988.
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