Transitions in Sex Reclassification Law
By: Ido Katri
Forthcoming: UCLA Law Review
The ability to reclassify legal sex as F/M and even X, is a core issue of trans and non-binary legal engagements. In recent years a wave of legal reform and debate swept across the U.S., resulting in a spectrum of laws and policies, from a complete ban on reclassification to the innovative framework of self-identification. Providing a comprehensive study of American sex reclassification law, this article exposes a paradigmatic shift in legal preconditions for recognition: from demanding proof of medically authorized ‘sex reassignment’ toward protecting the individual right to ‘gender identity’. Investigating these shifts, this article argues that even the most expansive framework for reclassification fails to address the pervasive harm caused by the initial act of assigning sex at birth. The article argues that the incongruence suffered by trans legal subjects is not between their body and identity but between their birth-assigned sex and the gender expectations associated with it. Instead of simply looking for better reclassification frameworks, the article asks how sex classification impacts both trans and non-trans (cisgender) legal subjects. Linking the needs of trans and non-binary people to broader questions of sex inequality, the article paves the way to normatively imagine the possibility of ending the practice of assigning sex at birth, to detach the differentiated status M/F from the individual’s legal identity.