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North Carolina Law Review

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Legal sex in the United States is undergoing a dramatic transformation. By "legal sex" this Article refers to various instances in which legal authorities engage in defining an individual's sex, either directly or indirectly. This Article begins by charting this transformation and then draws on this history to rethink the current political moment.

Until around the mid-twentieth century, legal sex was mostly understood as immutable sexual difference between males and females that is biologically determined prior to birth. Groundbreaking scientific and medical theories in the 1950s introduced gender identity as a new way to describe an internal sense of being male or female. Since then, in slow steps, this concept has been integrated into various areas of law and policy. Today, the trend in U.S. law is toward viewing gender identity, defined as "an individual's own internal sense of whether they are a man, a woman, or nonbinary," as a central characteristic of legal sex. While there is not one coherent definition of sex across all areas of law, this Article observes that the trend across legal domains, including sex reclassification laws, antidiscrimination laws, and family laws, is clear: the legal system is shifting towards gender identity as the primary indicator of legal sex.

This Article demonstrates why it is urgent to name and evaluate this transformation. As of 2023, lawmakers have introduced and passed hundreds of bills and policies that target transgender people by undermining the incorporation of gender identity into legal sex. They call instead for narrow notions of immutable "biological sex" that is fixed at birth. This Article situates the current backlash against transgender people as an attempt to roll back laws, policies, and societal norms that view gender identity as the primary indicator of legal sex. The Article proposes that advocates on behalf of transgender people engage current debates about gender identity by insisting on the moral desirability of future generations of transgender people.



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