Medical Articles on the Littleton Case
and Related Articles on
Gender Determination and Human Rights


Medical Sex v. Social Gender:
Tried in the Court of Human Knowledge and Experience, the 21st Century CE

Society today only recognizes a binary gender role structure, largely molded by the majority of people who are clearly either male or female, meeting all requirements of medical sex determinations. However, within a minority of the population, there are people (emphasized as fellow human beings) who do not neatly fall into easy medical categorization for a wide variety of reasons, which mostly lie within what are currently seen by medical science as genetic variations. This presents us, as a society, with a problematic situation of trying to fit polynomial medical sex variations into a binary social gender structure.

Thus far, medical science has arrived at seven generally accepted areas of sex determination:

  1. Primary sex characteristics (sexual organs – phenotypical)
  2. Secondary sex characteristics (sex differentiation at puberty – phenotypical)
  3. Hormonal sex characteristics (generation and use of primarily oestrogens or androgens)
  4. Gonadal sex characteristics (presence of ovaries or testes – reproductive role)
  5. Chromosomal sex characteristics (human X or Y combinations – genetics)
  6. Brain structures and functions (characteristics generally vary by sex)
  7. Gender identity (psychological sense of self in regard to gender typing)

Most people who are post-puberty meet all seven criteria appropriate to a binary social gender classification. Where questions begin to arise is when medical sex determining criteria are missing or mixed through natural or medical intervention means. For instance, if a woman has a complete hysterectomy, she no longer meets gonadal sex criteria; socially, does lack of this medical sex criteria make her "not a woman" in the social gender milieu? Most rational people would say she is still a woman regardless of her loss of female reproductive capability.

The question of social gender status becomes far more complicated with mixed or incongruent medical sex determining factors. How should we socially categorize a person who has XY chromosomes, female primary and secondary sex characteristics, mixed gonadal characteristics, and physical inability of the body to react to androgens, along with a woman’s psychological gender identity. Since the individual appears by visual sex determination criteria to be female, despite other medical sex incongruencies, most rational people would assign her social gender status as a woman. In this particular example, the individual would be medically diagnosed as having complete Androgen Insensitivity Syndrome (AIS), which is a naturally occurring medical condition and genetically inherited. In fact, medical morphic descriptions of AIS women most often include the adjective "voluptuous," and some AIS women are capable of bearing children, although most are infertile.

The question of social gender status becomes more complex with mixed primary and secondary sex characteristics such as those found in individuals with partial AIS. In such cases, these individuals may go either way in the binary social assignation of gender. Usually, there is some sort of medical intervention, often, but not necessarily, early in life, to reduce sex incongruencies and bring the individual into closer alignment with one social gender type or the other.

The current medical standard for size of phallus at birth is approximately one inch or more to assign sex as a male. Infants who do not meet this standard or who have mixed genitalia (hermaphrodism or pseudohermaphrodism) are usually medically assigned sex as a female, and surgical intervention is performed along with what may be lifelong medical intervention such as administration of female hormones. This medical intervention at an early age may not be appropriate as the individual matures and develops a psychological gender identity which is at odds with the medical sex assignation and subsequent gender role socialization – the medical "diagnosis" and assignation of sex at birth is found to be in error later in life.

The Human Genome Project, conducted under the auspices of the U.S. government, is designed to map genes and identify locations of variations which cause a wide variety of human congenital conditions and susceptibilities to medical and psychological occurrences in life. Dealing just with the variations in what is normally XX or XY chromosome pairing, the possible variations and combinations are very high. It is estimated that most people have 5 to 30 gene pairing errors in their XX or XY chromosome pairing. Of course, more pairing errors are entirely possible and result in a variety of mixed medical sex characteristics. For example, there are XX individuals who have partial Y chromosome material. While an XX chromosome pairing would typically result in a medically determined female, the presence of Y material may override, resulting in an XX individual with a predominance of medical sex characteristics typical of males, and thus medically assigned a male sex.

In addition to gene pairing errors and Y chromosome material, there are a number of other chromosome patterns which have been identified. Those include XXY, XYY, XXXY, XYYY, XXYYY, and others. In these situations, additional gene pairing errors result in wide variances in medical sex determining criteria including mixed primary, secondary, hormonal, and gonadal criteria. It is apparent that medical determination of sex can be exceptionally complex, and some sort of medical intervention may be needed during the individual’s life to somehow medically align the person’s physical structure to allow one of the binary social genders to be selected and applied.

Yet another complexity in medical sex determination results when sex assigned by inspection of genitalia at birth is reversed later in life through natural means. For instance, a family in South America has an unusual dominant genetic trait. Most of the infants in the family appear by genital inspection to be female. However, at puberty, some of the children develop a penis, their testes descend, and the small vaginal opening previously present closes. Usually, this process happens in the womb prior to birth, but as seen in this family, it is not always so.

When dealing with complexities of the human brain and psychological gender identity, the medical assignation of a binary gender is presently an incredible abstraction. Identification of primary and secondary sex characteristics, hormonal balances, gonadal structure, and chromosome/genetic structure are all within the capability of current medical science to determine with relative ease on living individuals. Medical knowledge of the brain and its structures and functions is still in its infancy by comparison. Much of the current knowledge is conjecture and based on post-mortem study and analysis. It is yet medically impossible to conduct many brain analyses on living humans due to the obviously invasive nature of structure identification procedure. Although medical science is advancing with new technologies allowing studies of living human brains, there are presently no absolutes which can be used to accurately assign "brain sex" of an individual.

Medical science has determined somewhat conclusively that there are a number of general structural and functional differences between brains of males and females; however, why this occurs is still conjecture and thus far elusive in definitive proof. Several plausible theories, most involving genetic or hormonal influences, are currently being investigated by researchers.

One of the most interesting studies in regard to sex-related brain difference is in the BSTc area. In males, regardless of sexual orientation, this area is large; while in females, the area is smaller. Male to female transsexuals appear by present post-mortem studies to have a BSTc area statistically identical to that of females. The statistical sample size in these studies is small making it arguable in terms of statistical validity; however, it does point to a logical hypothesis well within the realm of medically valid possibility. Unfortunately, this brain analysis can only be conducted post-mortem at present, so it is of no value for absolute determination of sex of living humans.

Other brain studies involve hormonal influences of brain development of the foetus during critical sex differentiation development periods. Animal studies of post-natal hormone application have shown brain structure and function reversals in regard to brain sex characteristics and subsequent gender behavior development. Again, while the studies provide an interesting and medically possible hypothesis, to date, there is no conclusive proof of how this process naturally occurs in humans. Causal conjecture ranges from genetics to hormone imbalances of the mother during foetal development. Research of this hypothesis is still ongoing.

Even more abstract is the development of an individual’s identity, a portion of which is the individual’s gender identity. It is presently an area of significant debate with proponents of "nature," "nurture," and combinant theorems. Thus far, the best that can be determined is that, through present state of the psychological art, most individuals do develop a sense of identity and belonging to primarily one or the other of the social gender role models. This seems to occur independently of other medical sex characteristics, although it is plausible that it may be related to "brain sex" of the individual.

Medical science has generally accepted gender identity as a valid, although quite nebulous, reality of human existence. The American Psychiatric Association recognizes a condition which it currently classifies as "gender identity disorder" or GID (previously termed "gender dysphoria" by the APA). It is debatable in its notation as a "disorder" since the individual affected does not typically maintain a personal view of being "disordered," but simply having a physical defect, which is correctable using current, accepted medical procedures. The real "disorder" of the condition lies in the conflict between the individual’s perception of self as one gender and a medical/social assignation of the opposite binary gender. The conflict can and sometimes does progress, when unresolved, to suicide, self-mutilation, or at the least a degree of social dysfunction. Results of medical and psychological treatments of individuals with this condition are largely successful in resolving the conflict and restoring social function in a gender role congruent with the individual’s gender identity.

The present medical assignation of sex contains an underlying goal of creating a phenotype which fits into the binary social gender model. In terms of medical procedure to create an acceptable binary phenotype, surgical intervention is deemed a necessity when variances or conflicts arise in alignment of the seven characteristics of sex determination. Changing an individual’s genotype and thus influencing the individual’s phenotype from within is far beyond the capability of current medical science, although it could be a reality of the not-so-distant future as the science of genetic engineering matures – questions of ethics of genetic engineering aside.

For the most part, society accepts individuals who are genotypically gender variant or have had medical assistance to provide a phenotypical structure and appearance which facilitates a social gender assignation within the current binary model. However, legal support of medical science in the assignation of a binary social gender role is to date inconsistent at best. Most of the legal inconsistencies arise when the legal system attempts to apply medical criteria of sex determination incorrectly, using a value system not consistent with current medical practices, or when personal biases and prejudices result in judicial decisions based on narrow presumptions or religious perspectives. Although not ideally meeting with the precepts of "blind justice," it nonetheless is a reality of life and a common human frailty to not give validity to human difference and the myriad diversity of human development and experience.

Tere Prasse
San Antonio, Texas
April 28, 2000

Note: References for genetic sex variations and sex determination research can be found on Internet web pages of the Human Genome Project (http://www.ornl.gov/TechResources/Human_Genome/home.html), and related HGP searches at the National Center for Biotechnology Information, Online Mendelian Inheritance in Man database (http://www3.ncbi.nlm.nih.gov/Omim/searchomim.html).

Text of this article downloadable in WordPerfect format.

Author’s background: Frequent lecturer at university graduate and undergraduate levels concerning psychology and sociology of gender identity and gender roles; currently a professional educator, and state-qualified to teach sociology and human relations at the post-secondary level; trained as a paralegal; and author of numerous articles over the past decade relating to gender roles, gender determinations, and legal assignation of gender and gender identity markers. Some articles have appeared world-wide, including translations in French, German, and Russian. Articles have been cited in topical works of other authors including those published in academic and professional journals.


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