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. 2025 Jun 10;36(4):327–334. doi: 10.1097/JNC.0000000000000570

Are You Serious? The Absurdity of Policies Defining Two Sexes … Banning One and Erasing Others!

J Craig Phillips 1,2,3,✉, Hatem Laroussi 1,2,3, Julie E Williams 1,2,3
PMCID: PMC12184975  PMID: 40493442

Abstract

Recent policies—executive actions, judgments, and legislation—that define sex as female and male are rooted in colonial and puritanical interpretations of sex. These policies reinforce cis-heteronormativity and reify hegemonic male dominance in society. Proponents of these policies claim they are based on the definition of biological sex, which would suggest sex is based solely on the presence of gametes, eggs, and sperm. This ignores the natural variations that occur through multiple aspects of sex development that converge to constitute an organism's sex and denies the social aspects of gender and sexuality in humans. Policies based on misinterpretation of biological variability are exclusionary and violate people's civil and human rights, rendering us all less human. We propose recommendations that use inclusive theoretical underpinnings from Black feminism and queer theory and a framework of legal determinants of justice to create policies grounded in human rights principles of dignity and respect.

Key words: biological sex, civil rights, gametes, gender, human rights, sexuality

Human sex, sexuality, and gender have been extensively studied, revealing the complexity and diversity inherent in these aspects of identity. That literature explores multiple intersections of knowledge about an innate aspect of our bodies that makes us all human, our sex characteristics. This treatise focuses on sex, what we currently know about it, how it is understood, and how it is used to inform law and policy. Specifically, we describe the absurdity of current policy attempts to define “sex” narrowly as male and female, as is the case with recent executive actions (Executive Order No. 14168, 2025), previous attempts to narrowly define sex in section 1557 of the Patient Protection and Affordable Care Act (American Academy of Nursing, 2025), constitutional amendments (Human Rights Watch, 2025; Hungarian Fundamental Law, 2025, amendment 15), and court decisions (For Women Scotland Ltd v The Scottish Ministers, 2025). These narrow definitions suggest that biological sex are two binary, homogenous, and immutable categories. We argue that narrowly defining sex in this way ignores natural biological diversity and renders all of us less human. Current policy approaches appear to be rooted in both colonial and puritanical interpretations of sex that conflate sex and gender and ignore or attempt to erase the realities of human biological variations and exclude consideration of the social constructions of gender and human sexuality (Ainsworth, 2015; Bale & Epperson, 2017; Bhugra et al., 2022; Goymann et al., 2023; Karkazis, 2019; McLaughlin et al., 2023; Miguel-Aliaga, 2022; Van Anders et al., 2017). “Sex refers to biological attributes that distinguish organisms, including humans, as male, female, intersex, or hermaphrodite” (Miguel-Aliaga, 2022, p. 228). Complimentarily, in humans, gender is a social construct that integrates psychosocial characteristics that form individuals' identities as transgender, nonbinary, women, or men. Both gender and sex apply to humans; “gender does not negate or override sex differences … [and] not all differences between sexes in humans are socially constructed” (Miguel-Aliaga, 2022, p. 228). Reducing sex to a rigid male/female binary in law and policy ignores the biological diversity inherent in humanity and undermines scientific understanding, civil rights, and human rights.

Variations in Sex Characteristics

Sex is rooted in physiological and scientifically observable realities and biology does matter, at least sometimes. However, implications of biological reality extend far beyond the laboratory. For example, excluding women from research studies because of sex-based biological differences (e.g., concerns that the menstrual cycle, hormonal fluctuations, or pregnancy will complicate or confound drug trials) has resulted in inequitable health outcomes including misdiagnosis and ineffective treatment modalities for many women, which is arguably sex-based discrimination. Therefore, at times, it may be necessary to define what is meant by sex in both legal and biomedical realms. However, sex and gender are deeply intertwined. Similar to nature versus nurture debates, it can be very difficult to differentiate between physiological sex-based differences and what differences can be attributed to socially constructed sexuality or gender-based expectations and expressions. Similarly, people's prejudices, acts of discrimination, and experiences of oppression do not fit neatly into boxes.

These consequences underscore the need for clear legal and biomedical definitions of sex. Yet, as we delve deeper, it becomes evident that sex and gender are not easily separated in a strictly biological sense; sex is determined by the size of gametes that an organism produces. In humans, these gametes are eggs and sperm. As an evolutionary reproductive strategy, men produce small gametes, women produce large gametes, and hermaphrodites produce both (Goymann et al., 2023; Griffiths, 2021). This provides a definition that holds true for humans and across most species of flora and fauna that reproduce sexually. However, processes of sexual differentiation and presence or absence of sex chromosomes often differs dramatically between humans and other mammals (Ainsworth, 2015; Goymann et al., 2023). Based on this definition, organisms that do not produce gametes, including human embryos and people without gonads and/or who do not produce eggs or sperm, technically do not have a sex, and many species can actually change their biological sex over time or due to environmental stimuli (Goymann et al., 2023; Griffiths, 2021). Therefore, sex is not a constant across the lifespan, nor is it common sense, obvious, or immutable (Ainsworth, 2015). For example, current ideologically driven policy approaches centered on defining “biological sex” as an immutable binary (i.e., male and female) claim to protect family values and children, uphold women's rights, or prioritize excellence in military service and readiness (Executive Order No. 14168, 2025; Executive Order No. 14183, 2025; Executive Order No. 14187, 2025; Executive Order No. 14190, 2025; For Women Scotland Ltd v The Scottish Ministers, 2025; Hungarian Fundamental Law, 2025, amendment 15). However, these interpretations clearly conflate gametic sex with a narrowly defined sexual phenotype that revolves around genitalia. We argue that politicians have twisted accepted scientific understandings of “biological sex” to exclude and erase transgender women and intersex people and to control women's bodies and erode their rights.

Based on the above scientific definitions of biological (gametic) sex, the only way to truly determine human sex would be to test for the presence of gametes (eggs and sperm), which would be highly invasive, impractical, and costly. This approach would require inclusion of four biological categories: male, female, hermaphrodite, and none/no gametes present. It is important to note that hermaphrodite is not interchangeable with intersex because people with variations in sex development (VSD) rarely produce both sperm and eggs simultaneously (Mahmoudzadeh et al., 2019). In addition, the category of “none/no gametes present” is incongruent with most people's perceptions of their sexual identities and people would find it absurd to be labeled as someone without a sex. Gametic sex is not tested at birth. In practice, sex is predicted at birth based on a visual inspection of the infant's genitals and then recorded on a birth certificate; therefore, sex actually is “assigned” at birth, which is reductive and potentially unreliable, and should not form the basis of health and social policies, including executive actions, court judgments, and legislation. “Phenotypic definitions [e.g., the presence of a vagina or penis at birth] are not really ‘definitions’—they are operational criteria for sex determination underpinned by the gametic definition of sex” (Griffiths, 2021, p. 5).

Evolutionary biologists and other scientists described that the prediction of gametic sex, based on sex-related phenotypes and genotypes, is fallible because there are considerable natural variations in sex characteristics between and among all species, including humans (Ainsworth, 2015; Bale & Epperson, 2017; Goymann et al., 2023; Griffiths, 2021). For example, Ainsworth (2015) described in detail the many VSD that may arise, such as the presence of ovaries and female genitalia in people with homozygous XX chromosomes or testes and male genitalia in people with heterozygous XY chromosomes. Basically, any and every combination in between is known to occur (Table 1), including ambiguous genitalia and presence of both testicular and ovarian tissues and presence of either XX or XY chromosome on various individual cells within the same human organism (Ainsworth, 2015). Approximately 1 in 100 people are estimated to have VSD, a number that is likely higher given that most people are not tested for their chromosomal sex and many VSD are incidental findings (Jones, 2018). For example, a 70-year-old man (who had fathered children) was found to also have a uterus when he went for gastrointestinal surgery (Ainsworth, 2015). Recent scientific discoveries have found that at a cellular level it is not uncommon for people to have some cells with XX chromosomes and others with XY, which occurs for many different reasons and may have implications for diverse areas of the body including the brain (Ainsworth, 2015). While some of this research is new, scientists and medical doctors have been aware for decades about VSD and chromosomal variations (e.g., Klinefelter Syndrome [XXY], Turners Syndrome [X0]) that long ago refuted current conceptions of two distinct male and female sexual phenotypes congruent with XY and XX genotypes, respectively, yet society has clung to the rigid male/female binary.

Table 1.

Sex-Based Characteristics Used to Operationally Define Biological Sex

Characteristic Typical Male Pattern Typical Female Pattern Variations/Notes Social Construction Aspect
Gametes Sperm Eggs Both/neither possible in intersex conditions Not socially constructed; biological
Chromosomes XY (also XXY, XYY, etc.) XX (also XO, XXX, etc.) Various combinations and gene expressions Not socially constructed; biological
Hormones Higher testosterone Higher estrogen, progesterone Overlap and variation; hormone levels vary Social meanings attached to hormone levels
External Genitalia Penis (with variations) Vulva (with variations) Ambiguous or atypical in some cases Social assignment of sex at birth; gendered expectations
Gonads Testes Ovaries Both tissues or atypical development possible Not socially constructed; biological
Internal Reproductive Organs Epididymis, vas deferens, seminal vesicles Uterus, fallopian tubes, upper vagina Both, neither, or atypical development possible Not socially constructed; biological
Social Constructions Masculinity, “man,” male gender roles, behaviors, identities, expressions Femininity, “woman,” female gender roles, behaviors, identities, expressions Nonbinary, gender fluid, etc. Gender roles, behaviors, and identities are socially constructed and vary by culture and time
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Coloniality and Puritanical Interpretations to Define Sex

Rejecting anything and anyone who does not fit this binary serves to uphold male dominance and colonialism. Furthermore, we cannot ignore the hegemony of masculinity in science and particularly within medicine and other so called natural sciences. Although science is rooted in observable truths, the interpretations of those truths and the meanings and values we ascribe to them are socially constructed and filtered through a lens that is overwhelmingly White, cis-heterosexual, and male. This can be evidenced through the Latin nomenclature chosen to describe sexual anatomy (e.g., vagina is Latin for sword sheath, which clearly suggests a place to put a penis; O'Connell et al., 2008).

Colonial and puritanical conceptualizations of sex and gender-based rules and norms have influenced and shaped who has power and whose perspectives matter throughout much of the last 1,200 years of human history (Human Dignity Trust, 2023a, Human Dignity Trust, 2023b). These conceptualizations are particularly entrenched in Western societies that experienced European colonization (Calaguas, 2025), with less favorable policy approaches for gender-minoritized peoples occurring more often in former British colonies (Human Dignity Trust, 2023a). Coloniality is when peoples and societies navigate the legacies of colonialism (Maldonado-Torres, 2007; Quijano, 2007). Our current era is marred by coloniality as members of some societies resist human flourishing and hold onto oppressive approaches to human relationality, often through political and violent means that dehumanize people who do not meet their cis-heteronormative ideals. The dehumanized other becomes the target of oppression and attempts at erasure, as is the current case for transgender women and people with VSD (intersex).

Current puritanical notions related to sex and gender are heavily influenced by some religious groups. “In a new era of colonialism, Westerners exported their beliefs, values, interest, hierarchies, and political concerns” (Schnabel et al., 2022, p. 272). As a factor influencing societies, “religion is … often more important than scholars outside the study of religion assume” (Schnabel et al., 2022, p. 274). Religion is multifactorial and can function as a cause, effect, and intermediary factor in relation with gender and sexuality (Schnabel et al., 2022). “Gender and sexuality are both also multifactorial social structures that include, among other things, demographics and identities (e.g., gender and sexual categories), social phenomena (e.g., roles, relationships, …), and politics (e.g., attitudes, values, … policies)” (Schnabel et al., 2022, p. 274).

Social contexts and historical epochs also influence the interrelationships between religion, gender, and sexuality. Throughout history, “religions have been shaped by existing gender and sexuality values in the social contexts in which they arose” (Schnabel et al., 2022, p. 274). Over time, becoming entrenched and institutionalized in those societies, eventually “those gender and sexuality values take on a life of their own beyond their original context and shaped new social contexts” (Schnabel et al., 2022, p. 274). Within social contexts, when some groups are more religious than others, including being grounded in sex and gender-based demographic characteristics, “religion can then complicate gender and sexual politics” (Schnabel et al., 2022, p. 274). We suspect that current policy attempts to codify sex based on “biological sex” can partially be explained by these colonial and puritanical interpretations of gender and sexuality.

Intersectionality, Theology, and Queer Theory

Religious rhetoric has historically played an important role in the strengthening of heteronormativity, constituting a central facet of many religious and doctrinal traditions which promote binary viewpoints on gender and sexuality. At its heart, religious rhetoric frames heteronormativity as a divine orderly standard, where traditional texts and lessons are often interpreted to favor heterosexual relationships as the only acceptable context for sexual behavior. Examining sacred texts through various religious traditions reveals a model in which canonical stories and doctrines contribute to societal constructions that delimit gender roles and acceptable sexual practices (Darwin, 2020). Interpretations of these religious texts are used not only to strengthen conventional gender dichotomies but also to delimit the moral borders in which sexual behaviors are deemed appropriate, thus marginalizing any potential gap compared with normative frameworks (Barnsley, 2025).

These religious structures and their accompanying discourses not only regulate sexual conduct but also significantly shape societal perceptions surrounding sex, often resulting in the systematic erasure of nonbinary identities. The classic defenses of the gender binary found in religious contexts illustrates how these defenses are used to undermine the legitimacy of nonbinary lives (Dellaperute, 2024). Theological affirmations which reinforce a binary understanding of sex and gender frequently require invalidation of nonbinary identities, presenting them as contrary to the perceived natural order established by divine will. This marginalization of queer peoples' lived experiences in rigorous frameworks of traditional religious communities contributes to a deep conflict between their identity and heteronormative imperatives dictated by their religious contexts influencing self-acceptance and sense of belonging (Fielder, 2015; Stuhlsatz et al., 2021).

In addition, the concept of heterobinary panopticism provides a critical lens through which to examine the control mechanisms exercised by religious institutions of people's identities and behaviors (Kemp, 2024). These religious systems create an omnipresent surveillance environment, shaping not only interpersonal relationships but also internalized notions of identity. The panoptic nature of such monitoring facilitates compliance with heteronormative standards while systematically stigmatizing divergence from those standards. This oppressive monitoring perpetuates a culture hostile to nonbinary identities and expressions (Kemp, 2024). Consequently, the interaction between religious rhetoric and societal perceptions of gender and sexuality is an area for vital exploration about how the fusion of faith and normative expectations produces conditions that can both marginalize and envision various sex and gender identities (Kemp, 2024; Schnabel et al., 2022). Queer theory questions and destabilizes the heteronormative basis for the rigid binary perpetuated by religious rhetoric that situates gender social constructs and sexuality as not only fluid but also socially and culturally built categorizations. Religious narratives often serve to strengthen traditional gender roles and heterosexual relationships, thus marginalizing nonbinary people (Callis, 2014). By using queer theory, these narratives can be reinterpreted to propose alternative theological understandings that embrace rather than exclude nonbinary identities. Religious texts and traditions can be interpreted to enhance nonbinary people and offer them a place within religious communities, thus challenging the idea that nonbinary identities and faith are intrinsically incompatible (Thompson, 2021).

Social representations of sexual minorities heavily influence the social perceptions of gender, underlining the tendency of dominant cultures to encourage heteronormative narratives. These narratives marginalize nonbinary identities, strengthening notions that gender must conform rigorously to male and female (Ferrari & Mancini, 2020). There is inadequateness in social discourse and religious doctrine based on traditional binary definitions of sex that limits understanding of the full spectrum of sexual and human diversity (Corradi, 2018). This perspective is essential to re-evaluate religious and philosophical teachings that have historically marginalized or invalidated nonbinary existence. For nonbinary people, navigating heteronormative religious contexts can be complex (Fielder, 2015; Schnabel et al., 2022; Stuhlsatz et al., 2021). It is marked by a continuous negotiation process, often swinging between acceptance and refusal of religious teachings that diminish their identities (Cordoba, 2023; Fielder, 2015; Stuhlsatz et al., 2021). Such interaction reflects a wider struggle against regulatory pressures, in which nonbinary people actively try to carve out spaces of their own within traditionally rigid frameworks (Stuhlsatz et al., 2021). Against a background of religious orthodoxy, many nonbinary people find comfort or affirmation in the reimagination of theological concepts, thus promoting an inclusive understanding of sex and gender that aligns with their lived experiences (Motmans et al., 2020; Stuhlsatz et al., 2021).

Rigid gender categories rooted in colonial periods have lasting consequences on current social attitudes that reflect a dynamic of power that promotes some identities while suppressing others, perpetuating discrimination. This historical lens provides a vital understanding of how religious rhetoric often reflects these social constructs, strengthening heteronormative ideologies entrenched in some religious practices and teachings (Graaff, 2025). By contrast, many religious traditions have intrinsic flexibility open to multiple gender identities that can invite religious communities to consider wider interpretations that embrace gender diversity, ultimately promoting a more inclusive environment (Borges Pires, 2024).

The sociocultural implications of embracing the full range of human sexes and gender identities queer theory advocates for are profound. Transformative changes in religious contexts can emerge, with religious communities challenging the status quo, reconfiguring their understanding of gender and sexuality to reflect a more inclusive vision of the world. Sex and gender ought to be viewed through an intersectional lens, and many Black feminists have clearly established that intersectionality is a critical framework within legal realms and policy making (Carbado et al., 2013; Crenshaw, 1989). Consequently, this shift encourages discourse that enhances diversity and recognizes the complexity of human identities, challenges existing sex and gender conceptualizations, and encourages the celebration of different gender expressions within both social and religious spheres.

Conclusions and Hope for the Future

Policies that conflate sex and gender contribute to violations of people's civil and human rights. Similarly, efforts to narrowly define sex or gender based on outdated and uninformed ideologies that exclude sex or gender beyond the binary, female and male, deny inherent realities of naturally occurring human biological variations and the innate humanity of many people (Bhugra et al., 2022)—what has been defined as erasure (Bauer et al., 2009). Our focus has been to share current understandings of the variations in sex that are overlooked in recent executive, legislative, and juridical actions (Executive Order No. 14168, 2025; Executive Order No. 14183, 2025; Executive Order No. 14187, 2025,; Executive Order No. 14190, 2025; For Women Scotland Ltd v The Scottish Ministers, 2025; Hungarian Fundamental Law, 2025, amendment 15).

Lack of precision in terminology leads to discriminatory policies and judgments that can render natural variations in human existence impossible, thereby erasing people and denying them their rights and dignity as human beings. Once implemented, and if codified, these laws, policies, regulations, guidelines, or judgments dehumanize people and contribute to civil and human rights violations. We propose the following recommendations to prevent such violations. First, educate all of us—our loved ones, peers, clergy, jurists, policymakers, and politicians—about the range of possibilities of sex as a biological variable and gender as a social construct. Second, resist the temptation to move forward with the status quo or revert to a former unjust era in human society because we are nostalgic for a better time than the present. Third, use intersectional theory, queer theory, and postcolonial lenses to advocate for more inclusive health and social policies. Fourth, advocate for the development of policies that are informed by the “legal determinants of health (in)justice” (Table 2; Coggon & Kamunge-Kpodo, 2022). Fifth, advocate for health and social policies that respect innate human dignity and are rooted in the rule of law codified in Constitutions and the international instruments that form the International Bill of Human Rights. Finally, develop, implement, and regularly update comprehensive antistigma and antidiscrimination campaigns—both in policy and practice—across all sectors of society. We hope that these recommendations will advance human societies where everyone is safe, experiences a sense of belonging, is able to be who they are, and is treated with dignity and respect. “A status quo bias, or a hearkening to the priority of what has been ‘normal,’ requires as strong a defence in terms of justice as any challenges to it” (Coggon & Kamunge-Kpodo, 2022, p. 721 [emphasis in original]), especially when that status quo results in policies that deny people's dignity, civil rights, and human rights.

Table 2.

Framework to Guide Policy Development Informed by Legal Determinants of Health (In)Justice

Guiding Question Rationales Contextual Examples
“Whose care (broadly conceived) is constructed as the type of care that can consistently be left waiting?” (Coggon & Kamunge-Kpodo, 2022, p. 721) People and communities that are systemically neglected or those who do not receive care are considered in policy development.
This does not negate prioritization in resource constrained settings.		 Gender-affirming care
Whose right to life is most at risk? Health injustices can result in morbidity or mortality.
Aims to help consider whose comfort and wellbeing is centered in the law or policy and whose rights are neglected or denied.		 Policies that set up “hostile environments” or limit peoples access to spaces such as toileting facilities in public buildings or spaces (e.g., transgender bathroom bans)
“Whose voices are not being heard? (Coggon & Kamunge-Kpodo, 2022, p. 721) Dialogs and listening sessions facilitate better understanding of the health needs and policy impacts of whether and how health-influencing goods are distributed. Engaging affected communities and peoples meaningfully and safely in law and policy making processes
“What outcomes are truly (not) inevitable? (Coggon & Kamunge-Kpodo, 2022, p. 721) “Seemingly ‘inevitable’ consequences of societal and political configurations can be challenged if we take seriously and scrutinize the related empirical and ethical ideas of responsibilities (causal and moral) being diffused across individuals, communities, organizations, and governments.” (Coggon & Kamunge-Kpodo, 2022, p. 721) Erasure of the possibility of intersex people that arise when sex is defined based on biological (gametic) sex assigned at birth
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Data Accessibility Statement

All data used in the creation of this work are publicly available.

Author Contributions

All authors on this article meet the four criteria for authorship as identified by the International Committee of Medical Journal Editors; all authors have contributed to the drafting or been involved in reviewing the manuscript, reviewed the final version of this manuscript before submission, and agree to be accountable for all aspects of the work. Specifically, using the CRediT taxonomy, the contributions of each author are as follows: Conceptualization & Methodology: J. C. Phillips; Data curation: J. C. Phillips; Formal analysis: J. C. Phillips, H. Laroussi, J. E. Williams; Funding acquisition: Not applicable; Investigation: J. C. Phillips, H. Laroussi, J. E. Williams; Project administration: J. C. Phillips; Resources: J. C. Phillips, H. Laroussi, J. E. Williams; Software: J. C. Phillips; Supervision: J. C. Phillips; Validation: J. C. Phillips, H. Laroussi, J. E. Williams; Writing—original draft: J. C. Phillips, H. Laroussi, J. E. Williams; Writing—reviewing and editing: J. C. Phillips, H. Laroussi, J. E. Williams.

Disclosures

The authors disclose the use of the artificial intelligence software DeepL Pro for the translation of the documents from the Hungarian Parliament.

The authors have no relevant financial or nonfinancial interests to disclose.

The Editor-in-Chief handled the review process for this commentary, and the Associate Editor, J. Craig Phillips, had no access to the paper during the review process in his role as an editor or reviewer.

Key Considerations

  • Recent policies attempt to legally define sex as male and female, based on ideological (mis)interpretations that biological sex is binary, which is inaccurate and complicates health care for all people.

  • Binary conceptualizations of sex are rooted in colonial and puritanical understandings that were designed to retain power within cis-heteronormative male societal structures that limit access to safe and effective care, contribute to stigma and discrimination, and may violate people's civil and human rights.

  • Nurses and other health care practitioners who are well informed about the natural variations in sex development can advocate for more equitable health and social policies that are accepting of the natural variations in gender and sexuality of all people.

Acknowledgments

This work has received no funding.

Contributor Information

Hatem Laroussi, Email: hatem.laroussi.1@ulaval.ca.

Julie E. Williams, Email: jwill144@uottawa.ca.

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