On February 19, Robert F. Kennedy, Jr., secretary of the Department of Health and Human Services, published a two-page “guidance” entitled, “Defining Sex.” The guidance followed President Donald Trump’s Executive Order, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” from Jan. 20, 2025. Along with 25 other executive orders that President Trump signed on Inauguration Day of his second presidential term, this order fulfilled a promise that Mr. Trump made in June 2023 to protect women from, as the order argues:
socially coercive means to permit men to self-identify as women and gain access to intimate single-sex spaces and activities designed for women, from women’s domestic abuse shelters to women’s workplace showers.
Mr. Kennedy’s document establishes guidelines regarding sex identification. When the secretary introduced it, he declared, “This administration is bringing back common sense and restoring biological truth to the federal government. The prior administration’s policy of trying to engineer gender ideology into every aspect of public life is over.”
Interestingly, other than referencing an earlier executive order, the word “gender” does not appear. Rather, Mr. Kennedy defines sex with a clear and neat statement:
There are only two sexes, female and male, because there are only two types of gametes. An individual human is either female or male based on whether the person is of the sex characterized by a reproductive system with the biological function of producing eggs (ova) or sperm.
The guidance also states, “Having the biological function to produce eggs or sperm does not require that eggs or sperm are ever produced.”
Finally, it adds:
A person’s sex is unchangeable and determined by objective biology. The use of hormones or surgical interventions do not change a person’s sex because such actions do not change the type of gamete that the person’s reproductive system has the biological function to produce. Rare disorders of sexual development do not constitute a third sex because these disorders do not lead to the production of a third gamete.
But is a person’s sex always determined by “objective biology,” as the guidance claims?
The reality of intersex people
Here I suggest we turn to the category of intersex people. I will say something about the much larger and better-known transgender community later. But here I want to judge the guidance on its own terms and say that by looking at intersex people, biology in fact does not indicate what one’s sex is.
Moreover, the question of whether the two-sex category sufficiently serves all of humanity can also not be answered. This does not necessarily mean that there are three sexes, just that insisting on one or the other is not itself sufficient for intersex people.
Indeed, the United Nations Human Rights Office of the High Commissioner begins their page on intersex people precisely with this insight:
Intersex people are born with sex characteristics (such as sexual anatomy, reproductive organs, hormonal patterns and/or chromosomal patterns) that do not fit typical binary notions of male or female bodies.
Rather than imagine or claim that the two categories are sufficient, other groups like thd American Academy of Pediatrics try to provide a set of terms and categories that can help persons and their families and physicians understand and respond to diverse ways that one’s sex actually can and needs to be understood.
In short, because binary categories are insufficient for us to understand everyone, we cannot foreclose this discussion but rather need other indicators to help one another understand who we each are. That is why the A.A.P. provides differing categories to assist our greater understanding.
In fact, inasmuch as the H.H.S. guidance itself acknowledges “rare disorders,” it effectively claims that though those “rare disorders” do not give us “a third sex.” Those living with the disorders still do not fit into the binary categories. Still, by using the modifier “rare,” the guidance seems to try to diminish the relevance of their category. By looking at the numbers, we will not find that claim convincing.
Looking at the numbers
If you look up the numbers for this “rare disorder,” you will frequently find the figure of 1.7 percent of the world’s population of 8,210,000,000. That would yield roughly 140 million intersex people.
Nonetheless, that assessment by Anne Fausto-Sterling from 2000 prompted a subsequent study in 2002 by Leonard Sax, which argued for a dramatically narrower definition and claimed: “the true prevalence of intersex is seen to be about 0.018%, almost 100 times lower than Fausto‐Sterling’s estimate of 1.7%.”
Subsequent studies never yielded figures as high as Fausto-Sterling nor as low as Sax.
Though no one found Sax’s very low figure acceptable, still that estimate yields a remarkable 1,477,000 intersex people, a number of people whom, even if only a fraction of the world population, cannot be dismissed as unworthy of attention.
Later national studies reported with varying results between the two.
One organization, Interact, helpfully notes: “The lack of available data on people with intersex traits and their experiences is a significant concern.” They explain:
Estimates of the size of the intersex population vary based on the definition researchers use, and ensuring a representative sample size outside clinical contexts is difficult. Stigma around intersex traits also makes many intersex individuals unwilling to disclose their intersex status.
Still, Interact, together with the Center for American Progress, estimate “that up to 1.7 percent of the population has an intersex trait and that approximately 0.5 percent of people have clinically identifiable sexual or reproductive variations.”
The missing intersex people
Certainly, it seems that intersex people are a stumbling block for the health secretary and the President’s ambition to preclude sexual understanding beyond the objectively biological.
That intersex people are not well known arises from our own inability to recognize and accompany them. Hopefully, here we see how our ignorance of them leads to our lack of recognition. Indeed, the lack of one feeds the other.
As we start to learn more about intersex people, we will find that by taking them seriously, we will not be able to take “Defining Sex” seriously.
Like the proponent of “Defining Sex,” many of us probably thought such people were a rare occurrence. But they are hardly rare, though they may not be recognized as such.
In her book, Bodies in Doubt: An American History of Intersex, Elizabeth Reis brings the reality of Intersex people into our lives.
Here we can learn about their enormous struggles and those of their parents. Here we can learn about matters of shame, social expectations, problematic and unwanted surgeries and the other challenges of trying to determine one’s own sex. What intersex people know are the social biases and violent, shaming attacks that they routinely encounter. We do not know these attacks because we do not think to recognize them. Still, their little known, enormous struggles are found in an introductory way in The United Nations Human Rights Office of the High Commissioner’s 68-page Background Note on the Human Rights Violations of Intersex People.
I believe that we have much to learn about sex and gender precisely from intersex people and the transgender community.
The more we encounter and recognize them, the more we will learn with them and join them in understanding their challenges.
Now, the health secretary’s attempts to disregard the intersex as “a rare disorder” can be seen as a claim that further harms and isolates intersex people and their very variegated challenges that need not to be not reduced or ignored but recognized and engaged.
Moreover, their own condition and their struggles diminish the administration’s credibility to dismiss the claims of members of the transgender community, who appealed beyond their biology to their gender.
Like with intersex people, we need to recognize and accompany the transgender community as well, something that the President’s original executive order effectively opposes. As I have written before, we need to listen to transgender people so as to understand how they understand themselves, their bodies, their sex and their gender to say nothing of social forces and structures that shame and harm the community.
In fact, I believe that we have much to learn about sex and gender precisely from intersex people and the transgender community, such that silencing them will hurt not only them but our own understanding of sex and gender for all human beings.
Signs of hope
Let me close with three other hopeful signs that highlight the road to learning more.
First, theologians have raised up intersex people for quite some time, notably Katie Grimes in an essay critiquing complementarity in 2016 and Michael G. Lawler and Todd Salzman in their reply five years ago to the Vatican Congregation for Catholic Education’s Document, “Male and Female He Created Them. For a Path of Dialogue on the Issue of Gender in Education.”
Secondly, notwithstanding its position on gender ideology, the Vatican recently recognized the plight of those suffering of dysphoria, as Cardinal Víctor Manuel Fernández, prefect of the Dicastery for the Doctrine of the Faith, acknowledged at a lecture in Cologne in mid-February.
Finally, as Outreach reports, Pope Francis is meeting with greater regularity with transgender Catholics at general audiences.
These meetings not only give further recognition to the transgender community and hopefully greater awareness and support of the intersex people, but they make us more aware of, and possibly supportive of, those whom our present government wants in one instance to reject and in the other, overlook.
But recognizing the other, overlooked and rejected, has always been the summons of Jesus since he first taught us the Parable of the Good Samaritan.
