Representative Andy Hopper played biologist on the House floor, claiming with certainty that there are only two sexes during a debate in early April.
He made this point when presenting a budget amendment that would reduce government funding to the University of Texas at Austin in part because some programs “deny the unchangeable biological reality that there are only two sexes.” In the ensuing debate, State Representative Lauren Ashley Simmons, a Houston Democrat, asked him where intersex people fit into his statement.
His argument quickly fell apart as he admitted he didn’t know what intersex meant, but doubled down anyway: “Those intersex individuals are still XX or XY, so you can’t change that.”
It took his ally, Representative Valoree Swanson, who has authored bills focused on biological sex herself, to correct him, whispering “That’s not true.”
Hopper, along with several other right-wing legislators, have leaned on the concept of biological reality to propose dozens of bills that seek to categorize people in the law or in public spaces through binary definitions of sex. Despite claiming to have science on their side, these legislators often eschew scientific facts, leaving intersex, transgender, and non-binary people in limbo when they do not fit into neatly legislated boxes.
“If biological sex were as obvious as lawmakers keep insisting that biological sex is, we wouldn’t be here,” said Erika Slaymaker with the Texas Freedom Network, a progressive advocacy group. “You wouldn’t have to try so hard to legislate the gender binary into existence.”
One such bill, House Bill 229, was passed by the House last week on an 87-56 vote. Authored by Republican state Representative Ellen Troxclair, the bill would codify the terms “male” and “female” and require government agencies to abide by these definitions in sex-based data collection. Per the bill, a “female” is an individual whose biological reproductive system is developed to produce ova, and a “male” is an individual whose biological reproductive system is developed to fertilize the ova of a female. The bill notes that “Separate is not inherently unequal” and that males are “on average, bigger, stronger, and faster, than females.” Troxclair said the bill was “straightforward and necessary” to ensure bills are “grounded in biological reality.”
During the floor debate on the bill, Dallas state Representative Jessica González criticized the bill for its attacks on trans Texans. “This bill is rooted in ignorance,” González said. “It’s abhorrent to abuse the power of this Legislature to target Texans who dare to defy your counterfeit standards of gender.”
Other bills, like Senate Bill 406, filed by Senator Mayes Middleton, apply binary definitions of biological sex to legal documents. SB 406 would prevent people from changing the sex marker on their birth certificate except for instances of clerical errors and would require people to display sex markers on their birth certificates. Middleton said this will ensure birth certificates remain “reflective of biological reality,” as it states: “god-given sex, either XX or XY.” The Senate passed that bill in early April.
Opponents of the bill raised concerns that SB 406 could pose challenges for people who don’t identify with their sex assigned at birth, as birth certificates are often used for identification. “When trans and gender expansive and intersex folks cannot make necessary and reasonable changes to their birth certificates while other demographics of people are still afforded the ability to do so through clerical changes, not only does the government violate equal protection under the law, but it sanctions transphobic violence,” said Landon Richie, policy coordinator of the Transgender Education Network of Texas. “It encourages a sick fixation on trans people’s bodies and lives and mandating cruelty through bureaucracy.”
SB 406 follows directives from the Department of Public Safety and Department of State Health Services this summer that blocked trans people from updating gender markers on their driver’s licenses and birth certificates respectively.
HB 229 defines biological sex based on reproductive systems, but other bills use different definitions. House Bill 980, defines males as individuals with a Y chromosome, while Senate Bill 240 says sex is defined by “an individual’s sex organs, chromosomes, and endogenous profiles.”
These different biological elements—sex organs, chromosomes, and other characteristics—make defining one singular definition of biological sex impossible, said Anne Fausto-Sterling, a professor emerita of biology and gender studies at Brown University. “There is no simple, out of context, accurate way to define it,” Sterling said. “It’s a practical question, not an existential or permanent biological question.”
Sterling said sex and gender are a “layered system” with different layers working independently of each other. Each layer doesn’t always align, allowing for natural variation. “The effort to try to make a single definition that accurately applies to everyone in an either/or way is a futile thing. You’ll never do it.”
These scientific definitions—and some legislators, like Hopper— ignore the reality of intersex individuals. Koomah, a co-founder of The Houston Intersex Society, said intersex people are born with anatomical, hormonal, chromosomal or gonadal traits between what is considered typical for males or females. Though statistics vary, about 2 percent of the population is intersex, according to a study published in the American Journal of Human Biology. Over 50 conditions are classified as differences in sexual development, including Klinefelter Syndrome, in which a male has an additional X chromosome, according to the Cleveland Clinic, a nonprofit academic medical center.
Koomah said stopping at binary understandings of biological sex is similar to having an elementary school understanding of math. “Just because you decide to stop learning after addition and subtraction doesn’t mean that negative numbers and calculus and algebra doesn’t exist,” Koomah said.
The existence of intersex people is “inconvenient” to legislators, Koomah said. “The scapegoat of choice right now is transgender people. At the same time, we are also a target for erasure, because our existence really challenges a lot of things.” To contend with this inconvenience, legislation typically has exemptions for intersex people, which can ultimately cause more harm, Koomah said, as many intersex youth undergo non-medically necessary surgeries to assign them a sex. Intersex advocates like Koomah work to educate people against these unnecessary surgeries, something at odds with an increasing legislative insistence on a gender binary.
In their education and advocacy work, Koomah said they are cautious to make space for the transgender community. “A lot of the targeting of the trans community targets us also. We get caught in the crossfire,” Koomah said. “We don’t want our liberation to come at the oppression of another group.”
Sean Saifa Wall helped create the Strategy Lab for Intersex Movements in 2024 to try to understand the origins of increasing healthcare bans targeting trans and intersex youth. He attributed the prevalence of these bans to a coalescence of Christian nationalism in the United States. In the grand scheme of this political project, Wall said, trans and intersex people have become “collateral damage.”
Upholding the gender binary through a rationale of biological sex is particularly effective, Wall said, because of people’s ignorance of biology and comfort with the gender binary. Legislators can capitalize on these misunderstandings and present their views as common sense. “They make people who are really opening the conversation around biological sex and gender as crazy,” Wall said. “It’s just like, ‘oh, those are the woke people. Those are those people who are pushing gender ideology. You can’t listen to them. They’re the ones who are coming for your kids.’”
At a hearing for HB 229, Jonathan Covey, policy director for the social conservative advocacy group Texas Values, said the bill would “inject a strong dose of common sense into an increasingly absurd social debate about who is considered a man and who is considered a woman.”
Wall said these legislators also connect their science-based explanations to religion. “They have been able to say, ‘God created the science, and the science is male and female,” Wall said. “They know that they have to have a handle on the science, they have to look and sound competent in order to veil their religious bias.”
Though legislators have taken a religion-infused scientific approach to biology, Bishop Sue Briner brought a different perspective to the HB 229 committee hearing.
“The world God created doesn’t operate in such sharp categories,” Briner said. “Genesis tells us that God created day and night, yet we know that the beauty of creation lies not in light and darkness, but also in dusk and dawn. In the in-between places that are sacred in their own right.”
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