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On Aug. 8, Pennsylvania became the 12th state to update its birth certificate policy by removing the requirement of proof of surgery to change an individual’s gender marker. The revised policy was part of the settlement of a lawsuit filed by two transgender plaintiffs in Doe v. Romberger, 2:16-cv-02337, against the Pennsylvania Department of Health in the U.S. District Court for the Eastern District of Pennsylvania. This is an important and long overdue modification for many members of the transgender community who can now update the gender marker on their birth certificate by submitting a letter from a physician simply stating they have undergone appropriate clinical treatment for gender transition; information about specific treatment is not required. Up until now, gender confirmation surgery had been the “golden ticket” in Pennsylvania to achieving legal recognition of a person’s desired gender marker based upon the legal fiction that a person can become the “opposite” sex via medical intervention.

We live in a country where the law has steadfastly denied the incontrovertible evidence of the existence of sex variations that do not fit neatly into the categories of female or male. The medical community collectively refers to individuals with these variations as being intersex. For example, a medical condition identified as Congenital Adrenal Hyperplasia (CAH) in individuals with XX genetic female chromosomes results in prenatal exposure to androgen, the steroid that triggers male development, and thus, such individuals may appear male. Androgen Insensitivity Syndrome (AIS) in individuals with XY genetic male chromosomes causes resistance to androgen’s masculinizing effects during development, and thus, such individuals may appear female. Additionally, a host of other conditions may result in ambiguous genitalia because of the timing of exposure to androgens in the uterus.

A comprehensive review and synthesis of the medical literature from 1955 to 2000 concluded that approximately one or two in 100 newborns do not conform to all of the physical characteristics of either a male or a female, and as many as one in 1,000 newborns actually has visually ambiguous genitalia at birth. Even though such variation has been well documented and is not particularly rare, the law requires individuals to inhabit only one sex. As illustrated by Pennsylvania’s policy and also by the handful of cases where the legal sex of intersex individuals has been litigated, the law will only recognize intersex individuals as female or male despite a genetic makeup that includes characteristics of both.

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