The Utah Legislature general session for 2019 is set to begin this month. Among the bills to be proposed, there will be one that has already sparked debate. The bill is known as H.B. 153 or the Utah Vital Statistics Act Amendments. Among other definitions, it will define gender and the way to change a person’s gender legally in Utah.
Under the proposed bill’s language, a male is defined as “an individual with testes who is confirmed before or at birth to have external anatomical characteristics that appear to have the purpose of performing the natural reproductive function of providing and delivering sperm to a female recipient,” and a female is defined as “an individual with ovaries who is confirmed before or at birth to have external anatomical characteristics that appear to have the purpose of performing the natural reproductive function of providing eggs and receiving sperm from a male donor.”
If the individual cannot clearly be identified under these two definitions at birth, the third option would have them labeled “undetermined.” The undetermined label is temporary and can be changed once the sex of the child can clearly be identified as male or female. It would mean that if this became law, the only way to change one’s gender on birth certificates would be to change the undetermined label, the name of the individual, or if an error occurred while filling out the original birth certificate.
Intersex people do not seem to exist under this language. “Intersex” is when a person is born or develops in a biological way where they are neither completely male nor female. According to the Intersex Society of North America, approximately 1 in 1500 to 1 in 2000 of children born are intersex, but the number could potentially be higher because there are more subtle cases where intersex traits do not develop until later in life (such as during puberty) or are not as apparent. It brings into question what the law labels people with or without mixed types of genitalia.
Rep. Merill F. Nelson, Republican and a lawyer for religious groups, is the sponsor for the bill. He wrote in its defense that, “H.B. 153 is based on the scientific and medical fact that an individual’s sex is determined at conception by chromosomal make-up and is not subject to change or self-determination later in life.” Nelson’s approach to gender is binary, unchangeable and determined before birth even occurs, even though intersex people are proof that some people are not always born with a specific visible sex distinction.
This view of gender as binary and beyond a person’s control is debated heavily. Others view gender as fluid, a mental identity which changes as a person does. Others may argue that gender is independent of sex and is instead how someone chooses to identify themselves. H.B. 153 would not recognize these other views of gender when it comes to one’s ability to change their gender on legal documents from the gender they were born. Under the potential new law, fact overrules choice and everyone can be labeled as male or female or under the rare, temporary umbrella of undetermined.
Sen. Ralph Okerlund is the floor sponsor for the bill. Okerlund stated a nearly identical belief to Nelson, “The birth certificate records the facts at the time of the birth, and other than situations where gender cannot be determined, those facts do not change, regardless of the decision made later in life.” Scientific research into gender may not agree with these legislators and the definition of gender is not universal.
The Supreme Court has allowed the state governments the ability to choose their own way to regulate gender changes for birth certificates. The constitution currently does not have the language to define a male or female. States get to choose the laws, meaning that the protections and the ability to change one’s gender under the law could dramatically differ from one state to another if this bill were passed. As of right now, the state of Utah allows individuals to change their gender if it is approved by a federal or state court.
Even though the constitution does not outline a specific definition of gender, that does not mean that the constitution has not been used to fight the laws developed that are not specifically mentioned. The Fourteenth Amendment’s language under the Equal Protection Clause states, “Nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.” This was the amendment used by the supreme court to pass laws for both civil rights and gay rights. The criticism for this bill references this amendment and feels that it is directly targeting transgender and other non-binary conforming individuals in Utah.
When reaching out to the LGBT resource center on campus, they said, “Unfortunately we do not have the staffing at this moment to be able to comment on this.”