Alabama House committee approves bill creating legal sex and gender definitions

An Alabama House committee Wednesday approved a bill that would put legal definitions of man, woman, boy, girl, father, mother, male, female and sex in the Code of Alabama.

HB 405, sponsored by Rep. Susan DuBose, R-Hoover, passed the House Health Committee on a party-line vote of 8-5. Rep. Craig Lipscomb, R-Rainbow City, abstained.

The bill defines sex as “an individual’s biological sex at birth,” but does not define biological sex. The bill defines women as an individual who is female, which is defined as “an individual whose biological reproductive system is designed to produce ova.” The bill defines man as a male, which is defined as “an individual whose biological reproductive system is designed to fertilize the ova of a female.”

Biologists define sex in various ways, using everything from chromosomes to gametes to appearance and behavior. According to the National Institute of Health (NIH), “gender can be broadly defined as a multidimensional construct that encompasses gender identity and expression, as well as social and cultural expectations about status, characteristics, and behavior as they are associated with certain sex traits.”

The bill, titled “What is a Woman”, got strong criticism from speakers at a public hearing last week, who said it was based on poor science and could affect sperm donation, surrogacy and birth certificates.

DuBose offered an amendment Wednesday that would define “intersex” as “an individual born with medically verifiable diagnosis of disorder or difference in sex development” and that these individuals “shall be provided legal protections and accommodations afforded under the federal Americans with Disabilities Act.”

Intersex conditions are not always distinguishable at birth. Sometimes, it doesn’t show up until puberty or when an individual has or tries to have children because of genetic, gonadal or anatomic characteristics that complicate fertilization or childbearing. Intersex traits can relate to conditions related to the genitalia, internal anatomy, hormones or chromosome combinations different to XY (male) and XX (female).

The Hudson Institute of Medical Research estimates that 1.7% of babies are born with intersex conditions. DuBose said she asked the Alabama Department of Public Health, and they said that there have been five individuals in the state determined to have an intersex condition.

Rep. Neil Rafferty, D-Birmingham, questioned how sex of a newborn would be determined.

“Is it something that we’re going to be subjecting all children to get tested for when they’re born?” he asked. “Like chromosome analysis, hormone stimulation tests, electrolyte tests, specific molecular testing, and the endoscopic exams or an ultrasound or MRI to actually verify the sex of the child or person?”

Rafferty also questioned what the process would look like if an intersex condition is not determined at birth. DuBose said the bill would apply to those individuals on a case-by-case basis.

“At whatever point in life this diagnosis is determined, and whatever time of life they choose the sex that they’re going to be, they would have still had that option and they would be covered, or I would say, protected under this bill, and covered under the Americans with Disabilities Act,” DuBose said.

Rafferty also questioned the bill’s use of gametes to define sex. Some individuals, he said, are born with conditions like cystic fibrosis which causes infertility in about 98% of males.

These bodies were not designed to fertilize the ova, Rafferty argued, and they wouldn’t fall under an individual with an intersex condition.

“The male body is designed to fertilize the egg. The female body is designed to produce an egg. Now, that doesn’t mean that everybody works perfectly,” DuBose said. “There is a time in life when women no longer produce an egg. That doesn’t mean they’re not a woman.”

Rafferty said he does not believe the bill to be “as comprehensive as they need to be to really emcompass or embody the full diversity of what the human experience looks like, and how God makes each and every one of us.”

Rep. Pebblin Warren, D-Tuskegee, had a concern that the bill would put trans women in male detention centers, and that the state is setting these individuals “up for a kill.”

“I think that there should be some special provisions in DOC or county jails to accommodate a transgender person,” she said. “Because if not – I mean, we’ve talked about killing and abuse in jail – this is really opening the doors for serious abuse in our correctional system.”