One tenet of transgender ideology is that sex and gender identity are coherent distinct concepts (“different things”), but this supposedly fundamental distinction suddenly disappears when it stands in the way of a litigation victory.
In a ruling on Thursday (in In re Sex Change of Childers-Gray), the Utah supreme court addressed the meaning of a state statute enacted in 1975 that governs amending a birth certificate’s statement of a person’s “sex.” By a 4-1 vote, the court held that Utah courts should generally grant sex-change petitions if “they are supported by objective evidence of a sex change, which includes, at minimum, evidence of appropriate clinical care or treatment for gender transitioning or change by a licensed medical professional.”
According to the majority, such “objective evidence of a sex change” need not involve any “sex-reassignment surgery” or other change to “observable external attributes”:
So, to put it simply [!], biological sex, as it is understood in the birth certificate context, may transform according to how a transgender individual chooses to respond to their gender dysphoria. But we take this opportunity to caution against relying even on the term “biological sex” as defined by observable external attributes. Transitioning from male to female or female to male is a process, not a switch. We must avoid relying on terms that may lead us toward setting a threshold for completion of a transition, because that is a line we are not equipped to draw.
A person seeking to change the sex on his birth certificate need not show that he has undertaken any “specific procedure or treatment.” “Instead, the licensed medical professional should provide that the appropriate clinical care or treatment conforms with the relevant medical standard of care for gender dysphoria.”
It’s a puzzle to me how the majority’s standard can be said to involve “objective evidence of a sex change.”
In his dissent, Justice Thomas Lee argues that the word “sex” in the 1975 statute is properly “understood as a reference to biological sex.” That, he explains, was the plain and ordinary meaning of the term in 1975. Under that meaning:
A basis for a change in [the] designation [of sex on a birth certificate] could be established upon discovery of a mistake in the biological sex designation made at the time of a child’s birth, or a showing that the biological features of an intersex person have developed differently than expected at birth. It also might be met where a person can demonstrate that the biological indicators of sex have been altered, as by sex-reassignment surgery. But the statutory basis for a change in a birth certificate “sex” designation cannot be established on the mere basis of a change in “gender identity” evidenced only by “appropriate clinical care or treatment” for gender transitioning or change.
Lee objects that the majority’s decision will have “far-reaching implications” for “spaces traditionally reserved for biological girls and women—sex-segregated sports leagues, school locker rooms, and shelters designed as safe spaces for victims of sex abuse.”
The majority opinion and Justice Thomas Lee’s dissent each run some 60 pages. They divide both on the threshold question whether the court has jurisdiction over the case (compare majority at pp. 8-35 with dissent at pp. 72-91) and on what must be shown under the statute in order to amend a Utah birth certificate’s “sex” designation (compare majority at pp. 36-58 with dissent at pp. 91-127).
These matters could surely benefit from some clarification by Utah’s legislature.