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"Ellen, thanks very much for this thoughtful engagement with my article. Here are some comments/replies. I’ve put the relevant pieces of your post in quotation marks.
“I'll assume Byrne recognises that the idea of defining sex by genitalia as birth, with chromosome testing as a back-up, is problematic, because he doesn't consider it. One problem is you might get people who have ambiguous genitalia and whose chromosomes are ambiguous as well - such as if they have XXY or XO chromosomes. Another problem is that people's genitalia can mismatch with their chromosomes.”
I agree completely with this. Being female or male cannot be equated with having a certain kind of genitalia, or having certain chromosomes. That is obvious if you widen the focus beyond humans. Of course, genitalia at birth are generally a very reliable sign of a (human) baby’s sex, but a sign or indication of X should not be confused with X itself.
“Byrne argues instead that we can turn to a standard biological definition of sex to show us that sex is binary. He suggests we use the standard biological, multi-species sex distinction which says that the female of the species is the one that produces the largest gametes. Then we can say that "females are the ones who have advanced some distance down the developmental pathway that results in the production of large gametes - ie ovarian differentiation has occurred, at least to some extent." A male, meanwhile, is someone who has advanced some distance down the developmental pathway that results in the production of small gametes - sperm.
Byrne argues that if we use this definition then there will be no humans who are neither female nor male, thus proving that sex is, after all, binary.”
But I do not say that. Here’s what I wrote:
The existence of some unclear cases shows that it would be incautious to announce that sex (in humans) is binary. By the same token, it is equally incautious to announce that it isn’t — let alone that this is an established biological fact. And even if some people are outside the binary, they are a miniscule fraction of the population, nothing like the frequently cited 1–2 percent figure, which draws on Fausto-Sterling’s earlier work.
“There are several problems with Byrne's argument.
First of all, the definition wouldn't be easy to apply - we would have to come up with some rules about exactly which developmental events constitute the right amount of ovarian differentiation, for one thing.”
You’re right that it wouldn’t be easy to apply. But I never suggested that we adopt it as a way of telling whether a baby is female or male. Observing the genitals is a cheap and effective way of telling (although, as you point out, it won’t work for every case). I was simply interested in whether sex is binary, rather than in finding some especially reliable test for someone’s sex.
“And Byrne would have to accept that any fetus younger than 6 weeks has no sex at all, which flies in the face of normal intuitions about sex.”
Quite right. I do accept it. But surely you don’t think that biological questions should be decided by “normal intuitions”! Since I think I existed at one week after conception, I think there was a time when I was sexless. Here’s some support: “Sex is never determined at conception” (Beukeboom and Perrin, The Evolution of Sex Determination, OUP 2014, p. 17).
“Second, Byrne allows that there will still be humans who count as both male and female, because they have advanced some way towards production of both types of gamete (such individuals have standardly been called 'true hermaphrodites' but the Intersex Society of North America is campaigning for such genital-focused terms to be avoided). This, he says, is in line with the fact that definitions in biology are never perfectly precise, but always admit of exceptions. I agree, but I fail to see why his desired conclusion - that sex is binary - is not threatened by such exceptions just as it would be threatened by cases which are neither male nor female?”
You’re right that if there are humans who are both female and male, then this would refute the binary thesis. But I never allowed that there are such people. I wrote:
…there are some other rare cases (arguably 1 in 50,000 births or even rarer) that are hard to decide, but there are no clear and uncontroversial examples of humans who are neither female nor male. (A similar point goes for supposed examples of humans who are both female and male, although here things get more complicated.)
Here things really do get complicated! It would have taken much too much space to treat the (exceedingly rare) cases of so-called “true hermaphrodites”, so I had to leave that out.
“And there are women who likewise fail Byrne's definition of a female…Such individuals [XY people with (Complete) Androgen Insensitivity Syndrome] don't constitute difficult cases for Byrne's definition - they are classified unproblematically as male. But Byrne's definition would pose a problem for these individuals - at least some of them get hurt by being classified as male. Patino was hurt because she lost her career as an Olympic hurdler. Some are hurt because they feel like females. Some are hurt because they feel like neither males nor females.”
I am certainly not suggesting that everyone who is male should be socially treated as male, or barred from female-only sports, or called ‘male’, or have ‘male’ on their birth certificate, or anything like that. Cases of CAIS prove that that would be ridiculous.
“We don't have to define sex as binary any more than we have to define indigo as separate from violet.”
Here I think we have a serious disagreement. (Well, maybe not — tell me what you think.) By my lights, I am not defining sex as binary. I am, rather, reporting that sex is basically a matter of gamete size (as I might report that water contains hydrogen and oxygen), and that people who say that sex isn’t binary (in humans) are going far beyond the evidence.
Suppose sex is binary. We can’t change that, any more than we can change the fact that we are mammals. (Or that indigo and violet are different colors; indigo may be a kind of blue, but whatever it is it isn’t violet.) What we can change (if we like) are our practices of classifying people as female or male. We could even agree to drop that social classification altogether — remove it from government documents, tear down bathroom signs, mandate unisex clothing, and so on. I simply wasn’t concerned (in that article) with these issues.
Consider this analogy. Let us say that northerners are those born in the northern hemisphere, and southerners are those born in the southern hemisphere. That is a binary distinction (assume no one is born exactly on the equator): every human is either a northerner or a southerner, and no one is both. Suppose that these are socially significant categories. The northerners oppress the southerners, and the different groups are supposed to wear differently colored hats. Some people feel trapped by the “hemispheric binary”, perhaps not “identifying” as a northerner or a southerner, and refuse to wear a hat at all (or maybe wear a multi-colored one). No doubt something should be done about this unhappy state of affairs. But denying that the northerner/southerner distinction is binary is not it.