Amicus Curiae Brief — R.G. & G.R. Harris Funeral Homes, Inc., Petitioner v. Equal Employment Opportunity Commission, et al.

Supreme Court briefJul 3, 2019

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Nos. 17-1618, 17-1623, 18-107 VIDED

IN THE

Supreme Court of the United States

No. 17-1618

GERALD LYNN BOSTOCK,

—v.—

Petitioner,

CLAYTON COUNTY, GEORGIA,

Respondent.

NO. 17-1623

ALTITUDE EXPRESS, INC., and RAY MAYNARD,

—v.—

Petitioners,

MELISSA ZARDA and WILLIAM MOORE, JR.,

Co-Independent Executors of the Estate of Donald Zarda,

Respondents.

(Captions continued on inside cover)

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURTS OF APPEALS FOR THE ELEVENTH, SECOND AND SIXTH CIRCUITS

BRIEF OF AMICI CURIAE INTERACT: ADVOCATES FOR

INTERSEX YOUTH, et al. IN SUPPORT OF EMPLOYEES

JONAH M. KNOBLER

Counsel of Record

DEVON HERCHER

PATTERSON BELKNAP WEBB

& TYLER LLP

1133 Avenue of the Americas

New York, New York 10036

(212) 336-2000

jknobler@pbwt.com

Attorneys for Amici Curiae

NO. 18-107

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

—v.—

Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

and AIMEE STEPHENS,

Respondents.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........................................ii

INTEREST OF AMICI CURIAE................................... 1

SUMMARY OF ARGUMENT ....................................... 5

ARGUMENT .................................................................. 7

INTERSEX PEOPLE ARE BORN

WITH BODIES THAT TRANSCEND

THE MALE/FEMALE BINARY......................... 7

II. LAW AND MEDICINE HAVE

RECOGNIZED INTERSEX BODIES

FOR MILLENNIA. ........................................... 15

III. INTERSEX PEOPLE EXPERIENCE

SEVERE MISTREATMENT AND

DISCRIMINATION .......................................... 22

IV. INTERSEX PEOPLE REFUTE THE

EMPLOYERS’ ARGUMENTS

ABOUT HOW “SEX” SHOULD BE

CONSTRUED ................................................... 26

CONCLUSION ............................................................ 30

TABLE OF AUTHORITIES

Page(s)

Cases

In re Estate of Gardiner,

22 P.3d 1086 (Kan. Ct. App. 2001) ...................... 27

Hughes v. Home Depot, Inc.,

804 F. Supp. 2d 223 (D.N.J. 2011)....................... 25

Los Angeles Dep’t of Water Power v.

Manhart,

435 U.S. 702 (1978) .............................................. 29

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) .............................................. 29

Wood v. C.G. Studios, Inc.,

660 F. Supp. 176 (E.D. Pa. 1987)......................... 25

Zzyym v. Pompeo,

341 F. Supp. 3d 1248 (D. Colo. 2018) .......... 7, 9, 20

Statutes and Regulations

D.C. Code § 50-1401.01.............................................. 20

N.J. Stat. Ann. § 26:8-40.12 (West 2018).................. 20

N.Y.C. Admin. Code § 17-167.1................................. 20

Or. Admin. R. 735-062-0013...................................... 20

SB 179, 2017 Leg., Reg. Sess. (Cal. 2017)................. 20

SB 20, 54th Leg., Reg. Sess. (N.M. 2019) ................. 20

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Wash. Admin. Code § 246-490-075

(2018) .................................................................... 20

Other Authorities

1 Enactments of Justinian: The Digest

or Pandects (Scott ed. 1932)................................. 16

A Human Rights Investigation Into the

Medical “Normalization” of Intersex

People, S.F. Human Rights Comm’n

(2005) ........................................................ 23, 24, 25

Albert de la Chapelle, The Use and

Misuse of Sex Chromatin Screening

for Gender Identification of Female

Athletes, 256 J. Am. Med. Ass’n 1920

(1986) .................................................................... 14

Androgen Insensitivity Syndrome, ISNA,

https://goo.gl/GJziJL............................................. 13

Anne Fausto-Sterling, SEXING THE BODY:

GENDER POLITICS AND THE

CONSTRUCTION OF SEXUALITY (2000) ... 7, 11, 12, 14

TABLE OF AUTHORITIES

(continued)

Page(s)

Anne Tamar-Mattis, Report to the InterAmerican Commission on Human

Rights: Medical Treatment of People

with Intersex Conditions as a Human

Rights Violation, Advocates for Informed Choice (March 2013),

https://goo.gl/Nf7Xt7....................... 9, 22, 23, 24, 25

Australian Gov’t Guidelines on the

Recognition of Sex and Gender (July

2013), https://www.ag.gov.au/

Publications/Documents/Australian

GovernmentGuidelinesontheRecognit

ionofSexandGender/Australian

GovernmentGuidelinesontheRecognit

ionofSexandGender.pdf ........................................ 19

Bill Chappell, Germany Offers Third

Gender Option on Birth Certificates,

NPR (Nov. 1, 2013), https://www.npr.

org/sections/thetwo-way/2013/11/01/

242366812/germany-offers-thirdgender-option-on-birth-certificates...................... 19

Bruce E. Wilson & William G. Reiner,

Management of Intersex: A Shifting

Paradigm, in INTERSEX IN THE AGE OF

ETHICS (1999).................................................... 8, 15

TABLE OF AUTHORITIES

(continued)

Page(s)

Carla Murphy et al., Ambiguous

Genitalia in the Newborn: An

Overview and Teaching Tool, 24 J.

Pediatric Adolescent Gynecology 236

(2011) ...................................................................... 8

Cary Nederman & Jacqui True, The

Third Sex: The Idea of the

Hermaphrodite in Twelfth-Century

Europe, 6 J. History of Sexuality 497

(1996) .................................................................... 16

More Than Just Male and Female: The

Six Genders in Classical Judaism,

Sojourn Blog (June 1, 2015), https://

goo.gl/5BsHzS ....................................................... 16

Congenital Adrenal Hyperplasia (CAH),

ISNA, https://goo.gl/8Ki1FH; ............................... 11

Clinical Guidelines for the Management

of Disorders of Sexual Development in

Childhood (2006), Consortium on the

Management of Disorders of Sex Development ....................................... 9, 10, 11, 15, 28

Curtis M. Wong, Arkansas Has Been Offering a Nonbinary Gender Option on

State IDs for Years Years, Huffington

Post (Oct. 17, 2018) .............................................. 20

TABLE OF AUTHORITIES

(continued)

Page(s)

Daniela Truffer, “It’s a Human Rights

Issue!” in VOICES: PERSONAL STORIES

FROM THE PAGES OF NIB –

NORMALIZING INTERSEX (James M.

DuBois & Ana S. Iltis, eds., 2016) ....................... 22

David A. Diamond et al., Gender

Assignment for Newborns with 46XY

Cloacal Exstrophy: A 6-Year

Followup Survey of Pediatric Urologists, 186 J. Urol. 1642 (2011)................................ 9

Elizabeth Reis, BODIES IN DOUBT: AN

AMERICAN HISTORY OF INTERSEX

(2009) ................................................................ 9, 18

Eliminating forced, coercive and otherwise involuntary sterilization: An interagency statement, OHCHR, UN

Women, UNAIDS, UNDP, UNFPA,

UNICEF & WHO (2014), https://

goo.gl/nzXm6f ....................................................... 23

Eric Lohman & Stephani Lohman,

RAISING ROSIE: OUR STORY OF

PARENTING AN INTERSEX CHILD

(UBCPress 2018) .................................................. 24

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Fact Sheet: Intersex, Free & Equal: UN

for LGBT Equality (2015), https://

www.unfe.org/system/unfe-65Intersex_Factsheet_ENGLISH.pdf...................... 25

FAQ: Non-binary Sex Identifier on

Driver Licenses and Identification

Cards, Colo. Dep’t of Revenue (Nov.

8, 2018),................................................................. 20

First Dutch Gender-Neutral Passport

Issued, BBC News (Oct. 19, 2018),

https://www.bbc.com/news/worldeurope-45914813 .................................................. 20

“[GA] Wife being bullied and discriminated at work for being intersex.”

REDDIT (Nov. 27, 2018), https://www.

reddit.com/r/legaladvice/comments/

a0zyf6/ga_wife_being_bullied_and_

discriminated_at_work/........................................ 25

Geertje Mak, DOUBTING SEX:

INSCRIPTIONS, BODIES AND SELVES IN

NINETEENTH-CENTURY

HERMAPHRODITE CASE HISTORIES

(2012) .................................................................... 18

Georgiann Davis, CONTESTING INTERSEX:

THE DUBIOUS DIAGNOSIS (2015) ..................... 13, 25

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

Giles Jacob, Tractatus de

Hermaphroditis: or, A Treatise of

Hermaphrodites,

https://bit.ly/2ZG2PcT .......................................... 17

Harry F. Klinefelter, Klinefelter’s

syndrome: historical background and

development, 79 So. Med. J. 1089

(1986) .................................................................... 19

Henry de Bracton, 2 ON THE LAWS AND

CUSTOMS OF ENGLAND (Thorne trans.,

1968), http://amesfoundation.law.

harvard.edu/Bracton/

Unframed/English/v2/31.htm .............................. 17

“I Want To Be Like Nature Made Me”:

Medically Unnecessary Surgeries on Intersex Children in the U.S., Human

Rights Watch & interACT (2017),

https://bit.ly/2Y1N6DZ............................................... 23

I.A. Hughes et al., Consensus Statement

on Management of Intersex Disorders,

118 Pediatrics 488 (2006)................. 8, 9, 13, 15, 24

Information About Changing

Sex/Gender Identity, https://www.

passports.govt.nz/what-you-need-torenew-or-apply-for-apassport/information/ ........................................... 20

TABLE OF AUTHORITIES

(continued)

Page(s)

Jennifer Yang, et al., Nerve Sparing

Ventral Clitoroplasty: Analysis of

Clitoral Sensitivity and Viability, J.

Urol., Vol. 178 (Oct. 2007).................................... 22

Jeremy Toler, Medical and Surgical

Intervention of Patients with

Differences in Sex Development, Gay

& Lesbian Med. Ass’n (Oct. 3, 2016)........ 22, 23, 24

Joana Plucinska, Nepal Is the Latest

Country to Acknowledge Transgender

Citizens on Its Passports, Time (Aug.

11, 2015), http://time.com/3992104/

nepal-passport-third-gender-transge

nder/ ...................................................................... 20

John Money, et al., An Examination of

Some Basic Sexual Concepts: The

Evidence of Human

Hermaphroditism, Bull. Johns

Hopkins Hosp. Johns Hopkins Univ.

97 (4) (Oct. 1955). ................................................. 18

Juan E. Méndez, Report of the Special

Rapporteur on Torture and Other

Cruel, Inhuman or Degrading

Treatment or Punishment, UN Doc.

A/HRC/22/53 (Feb. 1, 2013).................................. 24

TABLE OF AUTHORITIES

(continued)

Page(s)

Julia M. O’Brien, 1 OXFORD

ENCYCLOPEDIA OF THE BIBLE AND

GENDER STUDIES (2014) (Julia M.

O’Brien, ed.) ......................................................... 16

Julie A. Greenberg, Defining Male and

Female: Intersexuality and the

Collision Between Law and Biology,

41 Ariz. L. Rev. 265 (1999)................. 13, 14, 15, 17

Julie A. Greenberg, Interacting in the

Workplace with Individuals Who

Have an Intersex Condition

(Bloomberg BNA 2014)......................................... 25

Julie A. Greenberg, INTERSEXUALITY AND

THE LAW (2012) ..................................................... 10

Karsten Schützmann, et al.,

Psychological Distress, Self-Harming

Behavior, and Suicidal Tendencies in

Adults with Disorders of Sex

Development, Arch. Sex. Behav.

(2007). ................................................................... 23

TABLE OF AUTHORITIES

(continued)

Page(s)

Kate Sosin & Nico Lang, Gender ‘X’: Nevada to allow nonbinary people to

self-identify on IDs¸ NBC News (Apr.

22, 2019), https://www.nbcnews.com/

feature/nbc-out/gender-x-nevada-allo

w-nonbinary-people-self-identify-idsn997051................................................................. 21

Katrina Karkazis, FIXING SEX: INTERSEX,

MEDICAL AUTHORITY, AND LIVED

EXPERIENCE (2008) ............................................... 22

Kellie Hwang, Indiana Becomes the 6th

State to Offer a New Gender Option

on Driver’s Licenses, Indianapolis

Star (Mar. 12, 2019) ............................................. 21

Kutluk Oktay, et al., Fertility

Preservation in Women with Turner

Syndrome: A Comprehensive Review

and Practical Guidelines, 29 J. Pediatric & Adolescent Gynecology 409

(2016) .................................................................... 14

Laura Hermer, Paradigms Revised: Intersex Children, Bioethics & The

Law, 11 Ann. Health L. 195 (2002) ........... 8, 12, 22

xii

TABLE OF AUTHORITIES

(continued)

Page(s)

L. Michala, et al., Swyer syndrome:

presentation and outcomes, 115

BJOG: An Int’l J. of Obstetrics &

Gynaecology (2008)............................................... 13

L. Sax, How Common is Intersex? A

Response to Anne Fausto-Sterling, 39

J. Sex. Res. 174 (2002). ........................................ 15

Leon A. Peris, Congenital Adrenal

Hyperplasia Producing Female

Hermaphroditism with Phallic

Urethra, 16 Obstetrics & Gynecology

156 (1960) ............................................................. 18

Lily C. Wang & Dix P. Poppas, Surgical

Outcomes and Complications of

Reconstructive Surgery in the Female

Congenital Adrenal Hyperplasia

Patient: What Every Endocrinologist

Should Know, J. Steroid Biochem. &

Molecular Biol. (2017) .......................................... 23

Martin Kaefer & Richard C. Rink,

Treatment of the Enlarged Clitoris,

Frontiers in Pediatrics (August 2017) ................. 22

Melanie Blackless et al., How Sexually

Dimorphic Are We? Review and

Synthesis, 12 Am. J. Human Biol.

151 (2000) ............................................. 7, 11, 13, 14

xiii

TABLE OF AUTHORITIES

(continued)

Page(s)

Michaela Koch, DISCURSIVE

INTERSEXIONS: DARING BODIES

BETWEEN MYTH, MEDICINE, AND

MEMOIR ........................................................... 16, 17

Mitch Kellaway, Denmark Passes

Groundbreaking Gender ‘SelfDetermination’ Law, Advocate (Sept.

3, 2014).................................................................. 19

Natalie Nokoff, et al., Prospective

Assessment of Cosmesis Before and

After Genital Surgery, 3 J. Pediatric

Urol. (2017) ........................................................... 23

Nico Lang, Utah Among Growing Number of States Issuing Gender-Neutral

IDs, NBC News (Mar. 18, 2019),

https://www.nbcnews.com/

feature/nbc-out/utah-among-growingnumber-states-issuing-genderneutral-ids-n984326 ............................................. 21

Niraj Choksi, Canada Introduces ‘X’ as a

Third Sex Category for Passport

Holders, N.Y. Times (Aug. 25, 2017) ................... 19

P.S. Furtado et al., Gender Dysphoria

Associated with Disorders of Sex

Development, 9 Nat. Rev. Urol. 620

(Nov. 2012)............................................................ 10

xiv

TABLE OF AUTHORITIES

(continued)

Page(s)

Paul Walsh, Minnesota Now Offers ‘X’

for Gender Option on Driver’s

Licenses, Star Tribune (Oct. 3, 2018)................... 21

Peggy T. Cohen-Kettenis & Friedemann

Pfafflin, Legal Issues of Intersexuality

and Transsexualism, in

TRANSGENDERISM AND

INTERSEXUALITY IN CHILDHOOD AND

ADOLESCENCE: MAKING CHOICES

(2003) .............................................................. 17, 18

Peter A. Lee et al., Global Disorders of

Sex Development Update Since 2006:

Perceptions, Approach and Care,

Horm. Res. Paediatr. (2016)........................... 10, 28

Peter Lee et al., Review of Recent Outcome Data of Disorders of Sex Development (DSD): Emphasis on Surgical

and Sexual Outcomes, 8 J. Pediatric

Urol. 611 (Dec. 2012) ........................................... 23

Phyllis W. Speiser, et al., Congenital

Adrenal Hyperplasia Due to Steroid

21-Hydroxylase Deficiency: An

Endocrine Society Clinical Practice

Guideline, 95 J. Clin. Endocrinology

& Metabolism 4133 (2010) ................................... 11

TABLE OF AUTHORITIES

(continued)

Page(s)

Pliny, NATURAL HISTORY (John Bostock

trans., 1855), https://goo.gl/nHahlm .................... 16

Press Release, Maine Dep’t of the Sec’y

of State, Maine DMV to Offer Nonbinary Gender Designation on

Driver’s Licenses, ID Cards (June 11,

2018), https://www.maine.gov/sos/

news/2018/genderdesignationdlid.

html....................................................................... 21

Press Release, Vermont Dep’t of Motor

Vehicles, New License/ID Will Allow

Third Gender Option Starting This

Summer (March 13, 2019),

https://dmv.vermont.gov/pressrelease/new-license-id-will-allowthird-gender-option-starting-thissummer ................................................................. 21

Rajesh Sampath, India Has Outlawed

Homosexuality. But It’s Better to be

Transgender There Than in the U.S.,

Washington Post (Jan. 29, 2015) ......................... 19

Recommendations from interACT:

Advocates for Intersex Youth

Regarding the List of Issues for the

United States for the 59th Session of

the Committee Against Torture,

interACT (June 2016)..................................... 23, 24

xvi

TABLE OF AUTHORITIES

(continued)

Page(s)

Richard von Krafft-Ebing,

PSYCHOPATHIA SEXUALIS (Charles

Gilbert Chaddock trans., 1894)............................ 18

Sarah Creighton et al., Objective Cosmetic and Anatomical Outcomes at

Adolescence of Feminising Surgery

for Ambiguous Genitalia Done in

Childhood, 358 Lancet 124 (2001)....................... 23

Sarah Creighton et al., Timing and

Nature of Reconstructive Surgery for

Disorders of Sex Development — Introduction, J. Pediatric Urol. (2012) .............. 22, 24

Shakil Bin Mushtaq, Bangladesh Adds

Third Gender Option to Voter Forms,

The Diplomat (Jan. 19, 2018),

https://thediplomat.com/

2018/01/bangladesh-adds-thirdgender-option-to-voter-forms/ .............................. 19

Sharon E. Preves, Sexing the Intersexed:

An Analysis of Sociocultural Responses

to Intersexuality, 27 Signs 523 (2002) ................. 16, 17

Sigmund Freud, THREE CONTRIBUTIONS

TO THE THEORY OF SEX (A.A. Brill

trans., 1910).......................................................... 18

Sir Edward Coke, 1 INSTITUTES OF THE

LAWS OF ENGLAND 8.a........................................... 17

xvii

TABLE OF AUTHORITIES

(continued)

Page(s)

SRY gene, National Institutes of Health,

https://ghr.nlm.nih.gov/gene/SRY.......................... 8

Sue Landsittel, Strange Bedfellows? Sex,

Religion, and Transgender Identity

Under Title VII, 104 Nw. U. L. Rev.

1147 (2010) ........................................................... 29

Tamara Alexander, The Medical Management of Intersexed Children: An

Analogue for Childhood Sexual

Abuse, ISNA (1997) .............................................. 23

Tiffany Jones, et al., People with Intersex

Variations and Employment in

INTERSEX: STORIES AND STATISTICS

FROM AUSTRALIA,

https://bit.ly/2iXvw4u ........................................... 25

United Nations Office of the High Commissioner for Human Rights,

Tackling Discrimination Against

Lesbian, Gay, Bi, Trans, & Intersex

People: Standards of Conduct for

Business (2017), https://www.unfe.

org/wp-content/uploads/2017/09/UNStandards-of-Conduct.pdf .................................... 25

xviii

TABLE OF AUTHORITIES

(continued)

Page(s)

Walter L. Miller & Selma Feldman

Witchel, Prenatal Treatment of

Congenital Adrenal Hyperplasia:

Risks Outweigh Benefits, 208 Am. J.

Obstetrics & Gynaecology 354 (2013).................. 11

Yannick Pace, Malta Introduces “X”

Marker on Passports, ID Cards and

Work Permits, Malta Today (Sept. 5,

2017), http://www.maltatoday.

com.mt/news/national/80228/malta_

introduces_x_marker_on_passports_

id_cards_and_work_permits ................................ 20

Zeeshan Haider, Pakistan Issues

Landmark Transgender Passport;

Fight for Rights Goes On, Reuters

(June 28, 2017) ..................................................... 20

INTEREST OF AMICI CURIAE

Amici file this brief in support of Petitioner Gerald

Lynn Bostock in No. 17-1618, Respondents Melissa

Zarda and William Moore, Jr. in No. 17-1623, and

Respondent Aimee Stephens in No. 18-107 (collectively, the “Employees”).1

Lead amicus interACT: Advocates for Intersex

Youth is a nonprofit organization that employs legal

and policy advocacy to protect the rights of children

born with variations in their sex characteristics, often

called intersex. It is the largest and oldest continuously operating organization in the country exclusively dedicated to this purpose. Founded in 2006 as Advocates for Informed Choice, its mission is to end

harmful, nonconsensual medical interventions on intersex children. Since its inception, interACT has

continued to work to protect youth populations from

harmful procedures such as clitoral reductions and

sterilizations, while expanding its scope of work to

include awareness-raising to end the shame and

stigma faced by intersex youth. In addition, interACT

oversees the largest cohort of intersex young people

advocating on their own behalf, interACT Youth.

1 Pursuant to Sup. Ct. R. 37.6, amici certify that no counsel for a

party authored this brief in whole or in part, and no party or

counsel for a party made a monetary contribution intended to

fund the preparation or submission of this brief. No person other

than amici, their employees, or their counsel made a monetary

contribution to the preparation or submission of this brief. All

parties have consented to the filing of this brief.

interACT is joined by the following amici with expertise in intersex issues:

•

Arlene B. Baratz, MD is Coordinator of

Medical and Research Affairs for the AISDSD Support Group and Chair of the Medical

and Research Policy Committee for interACT.

She is a contributor to the 2006 Clinical

Guidelines for the Management of DSD in

Childhood.

•

Barbara M. Chubak, MD is an Assistant

Professor in the Department of Urology at the

Icahn School of Medicine at Mount Sinai

Hospital and a Member of the Medical Advisory Committee of interACT.

•

Katharine Baratz Dalke, MD is an Assistant Professor of Psychiatry at Penn State

College of Medicine, member of the Medical

Advisory Group and former President of the

Board of interACT, and an intersex woman.

•

Georgiann Davis, PhD is an Associate Professor of Sociology at the University of Nevada, Las Vegas and the Board President of interACT. As a medical sociologist, Davis has

spent over ten years studying how intersex is

experienced and contested in contemporary

U.S. society. She is the author of the awardwinning book CONTESTING INTERSEX: THE

DUBIOUS DIAGNOSIS.

•

Intersex & Genderqueer Recognition

Project (IGRP) is the first, and leading, organization in the United States to address the

rights of people to identify as nonbinary or

gender-neutral on government-issued documents. IGRP also works to stop nonconsensual, medically unnecessary procedures on intersex children. IGRP is a non-profit legal organization engaged in litigation, education,

and advocacy. Its membership and advisory

committee consist of intersex and transgender

persons who have faced discrimination due to

their nonbinary gender identities, intersex

bodies, or perceived failure to conform to gender stereotypes.

•

Julie A. Greenberg, JD is an Emeritus Professor of Law at the Thomas Jefferson School

of Law. She is an internationally recognized

expert on the legal issues affecting the intersex community. Her path-breaking work has

been cited by numerous state, federal, and international courts. Her scholarship, including her award-winning book, INTERSEXUALITY

AND THE LAW: WHY SEX MATTERS, has been

quoted in hundreds of books and articles.

•

Katrina Karkazis, PhD, MPH is the Carol

Zicklin Endowed Chair at Brooklyn College,

CUNY and a Senior Rsearch Fellow with the

Global Health Justice Partnership at Yale

University. Dr. Karkazis has spent over two

decades investigating the treatment of people

born with intersex traits and has published

extensively in this area, including the book

FIXING SEX: INTERSEX, MEDICAL AUTHORITY,

AND LIVED EXPERIENCE. Dr. Karkazis has also

served as an expert regarding sex-verification

policies of the International Association of

Athletics Federations at the Court of Arbitration for Sport.

•

Elizabeth Reis, PhD is a Professor at Macaulay Honors College, CUNY, author of

BODIES IN DOUBT: AN AMERICAN HISTORY OF

INTERSEX, and a Board member of interACT.

She has examined hundreds of cases of “hermaphroditism” and intersex found in medical

and popular literature.

•

Carl G. Streed Jr., MD MPH FACP is the

Research Lead at the Center for Transgender

Medicine & Surgery, Boston Medical Center

and an Assistant Professor of Medicine at the

Boston University School of Medicine.

•

Sean Saifa Wall is the co-Founder of the Intersex Justice Project and an internationally

recognized intersex activist.

•

Suegee Tamar-Mattis, MD is a family physician and a long-time advocate for the intersex community. She is a member of the medical advisory boards for interACT and the AISDSD Support Group, organizations that support intersex people and their families. She is

also affiliated faculty at the UCSF Institute

for Health & Aging. As a physician, Suegee is

the founder of the Transgender Clinic at Santa Rosa Community Health Centers, which

has provided health care for the trans communities of the North Bay for over 10 years.

•

Ilene Wong, MD FACS is a practicing urologist at MidLantic Urology, author of NONE

OF THE ABOVE (2015), and a Board Member of

interACT.

This case raises issues central to amici’s mission

as advocates for the intersex community. The arguments of the employer-defendants in these cases (collectively, the “Employers”) assume that all humans

fit neatly into one of two binary categories—“male”

and “female”—and that the category a person belongs

to is as easily distinguishable as their height or eye

color. As amici will show below, this simplistic assumption is wrong. The Employers’ mistaken view

demeans millions of intersex persons by erasing their

bodies and lives. Amici have a strong interest in ensuring that the Court correctly interprets Title VII to

protect intersex people and others who do not conform to the Employers’ incorrect assumptions about

sex and gender.

SUMMARY OF ARGUMENT

The Employers argue that the word “sex” in Title

VII refers only to “a person’s status as male or female

as objectively determined by anatomical and physiological factors, particularly those involved in reproduction.” Harris Pet. 6, 26; see also Zarda BIO 16-17.

As the Employers see it, there is no room in the definition of sex for one’s own deep-seated identity, which

they dismiss as a mere “subjective perception evidenced by what people profess they feel.” Harris Pet.

2. Moreover, in the Employers’ view, there are no

shades of gray: sex is “limited to [a] binary choice between male and female” and does not “include[] other

categories.” Id. 30 (emphasis added); see also Zarda

BIO 16-17.

These claims about sex are not merely unsupported—they are demonstrably wrong. In particular, each

year, close to 2% of infants are born intersex: i.e.,

with combinations of traits including genitalia, internal reproductive organs, chromosomes, and/or hormones that do not fit the Employers’ binary notions of

“male” and “female.” Traditionally, these infants have

been assigned one of the two binary sex categories at

birth—but that process has been widely recognized as

subjective and arbitrary, and intersex persons (like

non-intersex persons) often reject the assignments

that were determined for them as infants prior to

their ability to express their identity. Thus, sexual

anatomy and physiology are not binary for many people, and one’s “sex” cannot be reduced to a straightforward function of body parts.

Law and medicine have recognized this for millennia—long before Title VII was enacted in 1964.

For example, both Jewish scriptures and ancient

Greco-Roman writings acknowledged sex categories

outside the male/female binary, and medieval canon

law permitted non-binary individuals to live and

marry in accordance with their own deeply felt gender identity. Unfortunately, however, intersex persons have also been (and continue to be) subjected to

mistreatment and discrimination, including nonconsensual surgical interventions and, especially relevant here, adverse employment actions.

The undeniable existence of intersex people highlights the inadequacy of the Employers’ simplistic,

binary definition of “sex.” Nature, it turns out, is not

as clean-cut as the Employers would have the Court

believe. And for that reason, attempting to reduce sex

to a function of genitalia, gonads, or chromosomes—

while excluding one’s deeply felt identity and lived

experience from the calculus—is a fool’s errand. To be

clear, the Court does not need to define the concept of

“sex” authoritatively to resolve these cases, because

the Employees should win even under the Employers’

purely anatomical definition. But if the Court does

choose to define the term “sex” in these cases, it

should decline the Employers’ invitation to codify

through that definition the same sorts of inaccurate

stereotypes about “men” and “women” that Title VII

seeks to transcend.

ARGUMENT

I. INTERSEX PEOPLE ARE BORN WITH

BODIES

THAT

TRANSCEND

THE

MALE/FEMALE BINARY.

“Intersex” is an umbrella term describing a wide

range of natural variations of physical traits—

external genitals, internal sex organs, chromosomes,

and hormones—that do not fit typical binary notions

of male and female bodies. See Zzyym v. Pompeo, 341

F. Supp. 3d 1248, 1251 n.1. (D. Colo. 2018), appeal

docketed, No. 18-1453 (10th Cir.). Each year, close to

2% of all babies are born with these variations.2

Anne Fausto-Sterling, SEXING THE BODY: GENDER POLITICS

AND THE CONSTRUCTION OF SEXUALITY 51 (2000); Melanie Black2

less et al., How Sexually Dimorphic Are We? Review and Synthesis, 12 Am. J. Human Biol. 151 (2000).

Intersex traits originate from variations in the

embryonic sexual development process. A fertilized

egg usually has two sex chromosomes: XX or XY. For

the first few weeks of gestation, XX and XY embryos

look the same, but they later develop in different

ways depending on genetic and hormonal factors. In

XY-typical development, the gonads become testes;

the genital tubercle becomes a penis; and the labioscrotal folds fuse and form a scrotum. In XX-typical

development, the gonads become ovaries; the genital

tubercle becomes a clitoris; and the labioscrotal folds

develop into the outer labia. Later, at puberty, hormones secreted by the testes or ovaries cause expression of male-typical or female-typical secondary sex

characteristics, such as breast development, body

hair, musculature, and depth of voice.3

As discussed in detail below, there are many ways

in which this “typical” process can vary.4 Such variations may present at different ages. For example, variations in external genitalia may mean an intersex

child is diagnosed at birth, but other variations in internal organs or chromosomes may not become ap-

3 I.A. Hughes et al., Consensus Statement on Management of In-

tersex Disorders, 118 Pediatrics 488, 491 (2006); Bruce E. Wilson

& William G. Reiner, Management of Intersex: A Shifting Paradigm, in INTERSEX IN THE AGE OF ETHICS 119 (1999); SRY gene,

National Institutes of Health, https://ghr.nlm.nih.gov/gene/SRY

(last visited May 7, 2019).

4 Hughes, supra note 3, at 489; Laura Hermer, Paradigms Re-

vised: Intersex Children, Bioethics & The Law, 11 Ann. Health

L. 195, 204 (2002); Carla Murphy et al., Ambiguous Genitalia in

the Newborn: An Overview and Teaching Tool, 24 J. Pediatric

Adolescent Gynecology 236, 236–37 (2011).

parent until puberty or later.5 Often, intersex infants

and children are subjected to harmful “normalizing”

surgical procedures—a form of discrimination and

mistreatment that has been deemed a form of torture

by the United Nations and condemned by every human rights organization to consider the issue. See infra, Point III.

Intersex children are usually “assigned” male or

female at birth based on some combination of their

genitalia, gonads and other internal organs, and

chromosomes.6,7 This is a largely subjective process,

and experts may disagree on the “correct” sex to assign to an intersex child.8 See Zzyym, 341 F. Supp. 3d

at 1258 (noting “a lack of consensus as to how indi5 Clinical Guidelines for the Management of Disorders of Sexual

Development in Childhood 2–5 (2006), Consortium on the Management of Disorders of Sex Development, https://goo.gl/bKQcES

(last visited May 7, 2019) (hereinafter “Clinical Guidelines”).

6 Hughes, supra note 3, at 491.

7 The emphasis on which characteristic should prevail in deter-

mining a person’s sex has changed over time. For a history of

intersex management, see generally Elizabeth Reis, BODIES IN

DOUBT: AN AMERICAN HISTORY OF INTERSEX (2009).

See, e.g., Anne Tamar-Mattis, Report to the Inter-American

Commission on Human Rights: Medical Treatment of People

with Intersex Conditions as a Human Rights Violation, Advocates for Informed Choice 5 (March 2013), https://goo.gl/Nf7Xt7

(“There is still controversy and uncertainty about gender assignment in [cases of partial Androgen Insensitivity Syndrome],

and it can go either way, depending largely on the doctor’s

judgment.”); David A. Diamond et al., Gender Assignment for

Newborns with 46XY Cloacal Exstrophy: A 6-Year Followup

Survey of Pediatric Urologists, 186 J. Urol. 1642, 1643 (2011)

(reporting that only 79 percent of surveyed clinicians agreed on

a male gender assignment in 46XY cloacal exstrophy).

viduals born intersex could be classified as either

‘male’ or ‘female’”). Some intersex people continue to

identify with the binary sex they were assigned at

birth throughout their lives, but many others do not.9

For most major intersex diagnoses, 5–29% do not

identify with their originally assigned sex;10 in other

cases, the rate can reach higher than 60%.11 Physicians who treat individuals with intersex traits recognize that the key determinant of how individuals

navigate sex designations in their lives is their gender identity—their internal recognition of belonging

to a particular gender.12

The (now-defunct) Intersex Society of North America (“ISNA”) recognized approximately 20 different

intersex diagnoses,13 including the following:

9 Understanding Intersex and Transgender Communities 1, in-

terACT, https://goo.gl/CY53ZZ.

10 Julie A. Greenberg, INTERSEXUALITY AND THE LAW 20 (2012);

Hughes et al., supra note 3, at 491; P.S. Furtado et al., Gender

Dysphoria Associated with Disorders of Sex Development, 9 Nat.

Rev. Urol. 620 (Nov. 2012) (reporting average rates of gender

dysphoria at 5% for Complete Androgen Insensitivity Syndrome,

10% for Congenital Adrenal Hyperplasia, 12.5% for Ovotesticular DSD, 20% for Partial Androgen Insensitivity Syndrome, and

29% for Mixed Gonadal Dysgenesis).

11 Furtado et al., supra note 10 (reporting average rates of gen-

der dysphoria at 57% for 17-beta-HSD3 deficiency and 63% for

5-alpha-RD2 deficiency).

12 Peter A. Lee et al., Global Disorders of Sex Development Up-

date Since 2006: Perceptions, Approach and Care, Horm. Res.

Paediatr. (2016), doi: 10.1159/000442975; Clinical Guidelines,

supra note 5, at 25–31.

13 Clinical Guidelines, supra note 5, at 5–7.

a. Congenital Adrenal Hyperplasia (CAH):

CAH can occur in babies with XX or XY chromosomes. In CAH, a variant form of an enzyme leads to

heightened production of androgenic hormones in

utero. This can cause development to varying degrees

of typically “male” physical characteristics. XX individuals with CAH may have female-typical internal

organs and variations in external genitalia, such as

an enlarged clitoris and/or the lack of a vaginal opening. CAH can also cause development of male-typical

secondary sex characteristics like body hair, deep

voice, and prominent muscles. CAH occurs in about 1

in 14,500 births.14

b. 5-Alpha Reductase (5-AR) Deficiency: People with 5-AR deficiency have XY chromosomes and

testes, but their bodies produce lower-than-typical

levels of the hormone dihydrotestosterone (DHT),

which impacts formation of the external genitalia.

Many are born with external genitalia that appear

typically female. In other cases, they are neither

male- nor female-typical. Still other affected infants

have genitalia that appear predominantly maletypical, often with an unusually small penis (micropenis) and the urethral opening on the underside

of the penis (hypospadias). During puberty, people

14 Walter L. Miller & Selma Feldman Witchel, Prenatal Treat-

ment of Congenital Adrenal Hyperplasia: Risks Outweigh Benefits, 208 Am. J. Obstetrics & Gynaecology 354, 354 (2013); Phyllis W. Speiser, et al., Congenital Adrenal Hyperplasia Due to

Steroid 21-Hydroxylase Deficiency: An Endocrine Society Clinical Practice Guideline, 95 J. Clin. Endocrinology & Metabolism

4133–60 (2010); Blackless et al., supra note 2, at 154–55; Congenital Adrenal Hyperplasia (CAH), ISNA, https://goo.

gl/8Ki1FH; Fausto-Sterling, supra note 2, at 51–53 & tbl. 3.2;

Clinical Guidelines, supra note 5, at 6.

with 5-AR deficiency develop some typically male secondary sex characteristics, such as increased muscle

mass and a deep voice, but do not develop much facial

or body hair. Children with 5-AR deficiency are often

raised as girls. However, about half have a male gender identity and live as male beginning in adolescence or early adulthood.15

c. Androgen Insensitivity Syndrome (AIS):

People with AIS have XY chromosomes, but their

cells have a reduced or absent response to testosterone or other androgens. As a result, they do not

form typically male genitalia. In “complete” AIS, babies are usually born with a vaginal opening and clitoris indistinguishable from those seen in typical XX

babies. The diagnosis is ordinarily not suspected until

puberty, when menstruation does not occur. Investigation then reveals that these individuals are XY;

that they have undescended testicles; and that neither a uterus nor ovaries are present. However, because their bodies naturally convert the testosterone

they produce into estrogen, they will usually develop

female-typical secondary sex characteristics at puberty so long as their gonads are not removed. In “partial” AIS, the body’s cells have some (limited) response to androgens, and as a result, the external

genitalia fall somewhere between typically male and

typically female. While individuals with complete AIS

often have a female gender identity, individuals with

partial AIS are divided approximately evenly be-

15 Hermer, supra note 4, at 207.

tween female and male gender identity. AIS occurs in

approximately 1 in 20,000 individuals.16

d. Swyer Syndrome: In this variation, an XY

child is born with “gonadal streaks” (minimally developed gonadal tissue) instead of testes or ovaries.

Externally, a child with Swyer Syndrome usually appears female-typical; however, because streak gonads

do not produce the sex hormones that bring about

puberty, the child will not develop most secondary

sex characteristics without hormone treatment.17

e. Kallman Syndrome: This variation occurs in

both XX and XY children, characterized by delayed or

absent puberty and an impaired sense of smell. It is a

form of hypogonadotropic hypogonadism, or absence

of certain hormones that direct sexual development.

XY children with Kallman syndrome often have an

unusually small penis (micropenis) and undescended

testes. At puberty, most affected individuals do not

develop typical secondary sex characteristics, such as

facial hair and deepening of the voice in XY adolescents, or menstruation and breast development in XX

adolescents.

16 Blackless et al., supra note 2, at 153; Fausto-Sterling, supra

note 2, at 52; Hughes, supra note 3, at 491; Androgen Insensitivity Syndrome, ISNA, https://goo.gl/GJziJL.

L. Michala, et al., Swyer syndrome: presentation and outcomes, 115 BJOG: An Int’l J. of Obstetrics & Gynaecology 737–

41 (2008); Georgiann Davis, CONTESTING INTERSEX: THE

DUBIOUS DIAGNOSIS 2 (2015); Fausto-Sterling, supra note 2, at

52 & tbl. 3.1; Julie A. Greenberg, Defining Male and Female:

Intersexuality and the Collision Between Law and Biology, 41

Ariz. L. Rev. 265, 284 (1999).

f. Klinefelter Syndrome: A child with Klinefelter syndrome has XXY sex chromosomes, as opposed to the typical patterns XX or XY. This occurs

when one parent’s sperm or egg has an extra X chromosome from atypical cell division. The testes and

penis may be smaller than typical. Klinefelter syndrome has a prevalence of about 1 in 500 children,

and is not ordinarily diagnosed before puberty.18

g. Turner Syndrome: A child with Turner syndrome has the sex-chromosome pattern X, instead of

the typical XX or XY. This occurs when one parent’s

sperm or egg is lacking an X chromosome due to atypical cell division. Children with Turner syndrome

may have underdeveloped ovaries; their external genitalia generally appear female-typical, but may be

less developed. They generally will not develop menstrual periods or breasts without hormone treatment.

Turner syndrome affects between 1 in 2,500 and 1 in

5,000 newborns.19

h. Persistent Müllerian Duct Syndrome

(PMDS): Persons with PMDS have XY chromosomes

and male-typical reproductive organs and external

genitalia, but also have a uterus and Fallopian tubes.

This condition occurs when the Müllerian ducts—

18 Blackless et al., supra note 2, at 152; Greenberg, supra note

17, at 283; Albert de la Chapelle, The Use and Misuse of Sex

Chromatin Screening for Gender Identification of Female Athletes, 256 J. Am. Med. Ass’n 1920, 1922 (1986).

Kutluk Oktay, et al., Fertility Preservation in Women with

Turner Syndrome: A Comprehensive Review and Practical

Guidelines, 29 J. Pediatric & Adolescent Gynecology 409–16

(2016); Blackless et al., supra note 2, at 152; Greenberg, supra

note 17, at 284.

internal structures that ordinarily break down in an

XY fetus—remain and develop as they would in an

XX fetus. PMDS is ordinarily not diagnosed at birth,

and individuals with this variation often have a male

gender identity.20

i. Ovotestes: Ovotestes are gonads that contain

both ovarian and testicular tissue. People with ovotestes are predominantly XX, but some are XY or

have different chromosomal patterns in different cells

(see “Mosaicism,” infra). Some people with ovotestes

have external genitalia that look typically male; others have external genitalia that look typically female;

and still others have genitalia that do not look typically male or female.21

j. Mosaicism: As a result of atypical cell division

in early embryonic development, some people are

born with a mosaic karyotype, meaning that their

sex-chromosome pattern varies from cell to cell. A

person with mosaicism may have an XX chromosomal

pattern in some cells, and an XY pattern in others.22

II.

LAW AND MEDICINE HAVE RECOGNIZED

INTERSEX BODIES FOR MILLENNIA.

Intersex people have been recognized by law and

medicine for millennia—long before Title VII was enacted in 1964. As such, the enacting Congress had

20 Greenberg, supra note 17, at 285.

21 Hughes, supra note 3, at 492; Fausto-Sterling, supra note 2, at

21.

Wilson & Reiner, supra note 3, at 122; Clinical Guidelines,

supra note 5, at 7; L. Sax, How Common is Intersex? A Response

to Anne Fausto-Sterling, 39 J. Sex. Res. 174, 175 (2002).

every reason to know of their existence and take it

into account when using the term “sex.”

For example, classical Jewish writings identify six

sex categories—male, female, and four that would be

recognized today as intersex. These variations are

mentioned hundreds of times in the Jewish Mishnah,

Talmud, and legal codes.23 Intersex variations were

also recognized in Greco-Roman culture. Pliny’s Natural History refers to “those who belong to both sexes,

[whom] we call by the name of hermaphrodites … [or]

Androgyni.”24 The Justinian Code, too, recognized

“hermaphrodites” and provided that they should be

assigned whichever “sex … predominates.”25

In medieval and Renaissance Europe, “hermaphrodites”26 were often regarded as a third sex and recognized by law or custom.27 Twelfth-century French

23 More Than Just Male and Female: The Six Genders in Classi-

cal Judaism, Sojourn Blog (June 1, 2015), https://goo.gl/5BsHzS;

Julia M. O’Brien, ed., 1 OXFORD ENCYCLOPEDIA OF THE BIBLE

AND GENDER STUDIES 311–12 (2014).

Pliny, NATURAL HISTORY 7:3 (John Bostock trans., 1855),

https://goo.gl/nHahlm.

25 1 Enactments of Justinian: The Digest or Pandects, tit. 5, pa-

ra. 10 (Scott ed. 1932), https://bit.ly/2LecBPy; Michaela Koch,

DISCURSIVE INTERSEXIONS: DARING BODIES BETWEEN MYTH,

MEDICINE, AND MEMOIR 31.

26 “Hermaphrodite” is considered a pejorative term in the mod-

ern era and is not recommended for use outside of historical reference.

27 Sharon E. Preves, Sexing the Intersexed: An Analysis of Soci-

ocultural Responses to Intersexuality, 27 Signs 523, 535 (2002);

Cary Nederman & Jacqui True, The Third Sex: The Idea of the

Hermaphrodite in Twelfth-Century Europe, 6 J. History of Sexuality 497, 503 (1996).

theologian Peter Cantor noted that Church law “allow[ed] a hermaphrodite … to use the [sex] organ by

which (s)he is most aroused” and to “wed as a man …

[or] as a woman” accordingly.28 De Bracton’s thirteenth-century treatise on English law classified people as “male, female, or hermaphrodite.”29 In a treatise regarded as a founding document of English

common law, 16th-century jurist Lord Coke wrote

that “[e]very heire is either a male[, a] female[, or] a[]

hermaphrodite.”30 And in 1718, English legal writer

Giles Jacob explained that the law “permits [hermaphrodites] to make a Choice of either of the two

Sexes for the Business of Copulation, either in the

Capacity of Men or Women.”31

Victorian-era medicine divided humans into five

sex classifications. In addition to male and female,

this included (a) “true hermaphrodites,” with both

testicular and ovarian tissue (see “Ovotestes,” supra);

(b) “male pseudo-hermaphrodites,” with testicular

tissue and external genitalia that were not maletypical; and (c) “female pseudo-hermaphrodites,” with

Preves, supra note 27, at 536–37; see also Peggy T. CohenKettenis & Friedemann Pfafflin, Legal Issues of Intersexuality

and Transsexualism, in TRANSGENDERISM AND INTERSEXUALITY

IN CHILDHOOD AND ADOLESCENCE: MAKING CHOICES 155–56

(2003).

29 Henry de Bracton, 2 ON THE LAWS AND CUSTOMS OF ENGLAND

31 (Thorne trans., 1968), http://amesfoundation.law.harvard.

edu/Bracton/Unframed/English/v2/31.htm.

30 Sir Edward Coke, 1 INSTITUTES OF THE LAWS OF ENGLAND 8.a;

Greenberg, supra note 17, at 277–78.

Koch, supra note 25, at 32; Giles Jacob, Tractatus de Hermaphroditis: or, A Treatise of Hermaphrodites, https://

bit.ly/2ZG2PcT.

ovarian tissue and external genitalia that were not

female-typical.32 Freud discussed “hermaphroditism”

in his writings,33 as did pioneering 19th-century sexologist Richard von Krafft-Ebing.34

Intersex people continued to be recognized into

the 20th century. A widely-read 1955 paper on “human hermaphroditism” observed that there were six

factors that define “sex”—chromosomes, gonads,

hormones/secondary sex characteristics, internal reproductive structures, external genitalia, and sex of

rearing—and that these factors do not always align.35

A treatise published in 1961 observed that “hermaphroditism” had “become a major research field.”36 By

the time Title VII was enacted in 1964, the causes of

specific intersex variations such as congenital adrenal hyperplasia, androgen insensitivity syndrome, and

Klinefelter syndrome were already understood and

documented.37

Geertje Mak, DOUBTING SEX: INSCRIPTIONS, BODIES AND

SELVES IN NINETEENTH-CENTURY HERMAPHRODITE CASE

HISTORIES (2012).

Sigmund Freud, THREE CONTRIBUTIONS TO THE THEORY OF

SEX 7 (A.A. Brill trans., 1910); Reis, supra note 7, at 55–81.

Richard von Krafft-Ebing, PSYCHOPATHIA SEXUALIS 304

(Charles Gilbert Chaddock trans., 1894); Reis, supra note 7, at

55–81.

John Money, et al., An Examination of Some Basic Sexual

Concepts: The Evidence of Human Hermaphroditism, Bull.

Johns Hopkins Hosp. Johns Hopkins Univ. 97 (4): 301–19 (Oct.

1955).

36 Cohen-Kettenis & Pfafflin, supra note 28, at 156.

Leon A. Peris, Congenital Adrenal Hyperplasia Producing

Female Hermaphroditism with Phallic Urethra, 16 Obstetrics &

In the last few decades, an increasing number of

nations have adopted a third or neutral sex category

on passports and other official documents. These include Australia,38 Bangladesh,39 Canada,40 Denmark,41 Germany,42 India,43 Malta,44 Nepal,45 the

Gynecology 156 (1960); GENETIC DIAGNOSIS OF ENDOCRINE

DISORDERS 249 (Roy E. Weiss & Samuel Refetoff, eds. 2010) (describing Lawson Wilkins’ demonstration of androgen resistance

in 1950); Harry F. Klinefelter, Klinefelter’s syndrome: historical

background and development, 79 So. Med. J. 1089–93 (1986).

38 Australian

Gov’t Guidelines on the Recognition of Sex and

Gender

(July

2013),

https://www.ag.gov.au/Publications/

Documents/AustralianGovernmentGuidelinesontheRecognitiono

fSexandGender/AustralianGovernmentGuidelinesontheRecognit

ionofSexandGender.pdf.

39 Shakil Bin Mushtaq, Bangladesh Adds Third Gender Option

to Voter Forms, The Diplomat (Jan. 19, 2018), https://thediplomat.com/2018/01/bangladesh-adds-third-gender-option-to-voterforms/.

40 Niraj Choksi, Canada Introduces ‘X’ as a Third Sex Category

for Passport Holders, N.Y. Times (Aug. 25, 2017), https://www.

nytimes.com/2017/08/25/world/americas/canada-passport-x.html.

Mitch Kellaway, Denmark Passes Groundbreaking Gender

‘Self-Determination’ Law, Advocate (Sept. 3, 2014), http://www.

advocate.com/politics/transgender/2014/09/03/denmark-passesgroundbreaking-gender-self-determination-law.

42 Bill Chappell, Germany Offers Third Gender Option on Birth

Certificates, NPR (Nov. 1, 2013), https://www.npr.org/sections/

thetwo-way/2013/11/01/242366812/germany-offers-third-genderoption-on-birth-certificates.

43 Rajesh Sampath, India Has Outlawed Homosexuality. But It’s

Better to be Transgender There Than in the U.S., Washington

Post (Jan. 29, 2015), https://www.washingtonpost.com/post

everything/wp/2015/01/29/india-has-outlawed-homosexuality-bu

t-its-better-to-be-transgender-there-than-in-the-u-s/?utm_term=.

d63d70377d2e.

Netherlands,46 New Zealand,47 and Pakistan.48 In the

United States, too, many jurisdictions now issue official ID documents, such as birth certificates and

driver’s licenses, listing a sex that “is neither female

nor male.” Zzyym, 341 F. Supp. 3d at 1256-57. These

include Arkansas,49 California,50 Colorado,51 the District of Columbia,52 Indiana,53 Maine,54 Minnesota,55

44 Yannick Pace, Malta Introduces “X” Marker on Passports, ID

Cards and Work Permits, Malta Today (Sept. 5, 2017), http://

www.maltatoday.com.mt/news/national/80228/malta_introduces

_x_marker_on_passports_id_cards_and_work_permits.

45 Joana Plucinska, Nepal Is the Latest Country to Acknowledge

Transgender Citizens on Its Passports, Time (Aug. 11, 2015),

http://time.com/3992104/nepal-passport-third-gender-transgend

er/.

46 First Dutch Gender-Neutral Passport Issued, BBC News (Oct.

19, 2018), https://www.bbc.com/news/world-europe-45914813.

Information About Changing Sex/Gender Identity, https://

www.passports.govt.nz/what-you-need-to-renew-or-apply-for-apassport/information/.

Zeeshan Haider, Pakistan Issues Landmark Transgender

Passport; Fight for Rights Goes On, Reuters (June 28, 2017),

https://www.reuters.com/article/us-pakistan-lgbt-passport/pakis

tan-issues-landmark-transgender-passport-fight-for-rights-goeson-idUSKBN19J237.

49 Curtis

M. Wong, Arkansas Has Been Offering a Nonbinary

Gender Option on State IDs for Years, Huffington Post (Oct. 17,

2018), https://www.huffingtonpost.com/entry/Arkansas-genderneutral-state-id-option_us_5bc79f75e4b0d38b5874a669.

50 SB 179, 2017 Leg., Reg. Sess. (Cal. 2017) (enacted).

51 FAQ: Non-binary Sex Identifier on Driver Licenses and Identi-

fication Cards, Colo. Dep’t of Revenue (Nov. 8, 2018), https://

www.colorado.gov/pacific/sites/default/files/CO%20nonbinary%2

0sex%20identifier%20FAQ%2011.08.18.pdf.

52 D.C. Code § 50-1401.01.

Nevada,56 New Jersey,57 New Mexico,58 New York

City,59 Oregon,60 Utah,61 Vermont,62 and Washington.63

53 Kellie Hwang, Indiana Becomes the 6th State to Offer a New

Gender Option on Driver’s Licenses, Indianapolis Star (Mar. 12,

2019), https://www.indystar.com/story/news/2019/03/12/indianadrivers-licenses-now-have-x-gender-option/3138447002/.

54 Press Release, Maine Dep’t of the Sec’y of State, Maine DMV

to Offer Non-binary Gender Designation on Driver’s Licenses, ID

Cards (June 11, 2018), https://www.maine.gov/sos/news/2018/

genderdesignationdlid.html.

55 Paul Walsh, Minnesota Now Offers ‘X’ for Gender Option on

Driver’s Licenses, Star Tribune (Oct. 3, 2018), http://www.

startribune.com/minnesota-now-offers-x-for-gender-option-ondriver-s-licenses/494909961/.

56 Kate Sosin & Nico Lang, Gender ‘X’: Nevada to allow nonbi-

nary people to self-identify on IDs¸ NBC News (Apr. 22, 2019),

https://www.nbcnews.com/feature/nbc-out/gender-x-nevada-allo

w-nonbinary-people-self-identify-ids-n997051.

57 N.J. Stat. Ann. § 26:8-40.12 (West 2018).

58 SB 20, 54th Leg., Reg. Sess. (N.M. 2019).

59 N.Y.C. Admin. Code § 17-167.1 (Oct. 9, 2018).

60 Or. Admin. R. 735-062-0013.

61 Nico

Lang, Utah Among Growing Number of States Issuing

Gender-Neutral IDs, NBC News (Mar. 18, 2019), https://www.

nbcnews.com/feature/nbc-out/utah-among-growing-number-state

s-issuing-gender-neutral-ids-n984326.

62 Press Release,

Vt. Dep’t of Motor Vehicles, New License/ID

Will Allow Third Gender Option Starting This Summer (March

13, 2019), https://dmv.vermont.gov/press-release/new-license-idwill-allow-third-gender-option-starting-this-summer.

63 Wash. Admin. Code § 246-490-075 (2018).

III.

INTERSEX

PEOPLE

EXPERIENCE

SEVERE MISTREATMENT AND DISCRIMINATION.

Despite the longstanding recognition of intersex

bodies, people with intersex variations are mistreated, discriminated against, and subjected to surgeries

and forced genital examinations that many consider a

form of torture.

Intersex children have often faced nonconsensual

surgical intervention, including the mutilation and

removal of internal and external sex organs (e.g., clitoral reductions and vaginoplasties).64 Almost always,

these surgeries are performed not for any valid medical reason, but for cosmetic purposes or to ease parents’ or doctors’ discomfort with the child’s difference.65 These surgeries are commonly performed before the age of two, when the child is too young to understand what is taking place, let alone provide informed consent or express their own identity.66

64 Jeremy Toler, Medical and Surgical Intervention of Patients

with Differences in Sex Development 1, Gay & Lesbian Med.

Ass’n (Oct. 3, 2016); Katrina Karkazis, FIXING SEX: INTERSEX,

MEDICAL AUTHORITY, AND LIVED EXPERIENCE 57–58, 60–61

(2008); Martin Kaefer & Richard C. Rink, Treatment of the Enlarged Clitoris, Frontiers in Pediatrics (August 2017); Jennifer

Yang, et al., Nerve Sparing Ventral Clitoroplasty: Analysis of

Clitoral Sensitivity and Viability, J. Urol., Vol. 178, 1598–1601

(October 2007); Sarah Creighton, et al., Timing and Nature of

Reconstructive Surgery for Disorders of Sex Development – Introduction, J. Pediatric Urol. (2012).

65 Toler, supra, note 64, at 1; Tamar-Mattis, supra note 8, at 2–

3, 9; Hermer, supra note 4, at 207.

66 Karkazis, supra, note 64, at 57–58; Tamar-Mattis, supra note

8, at 2; Daniela Truffer, “It’s a Human Rights Issue!” in VOICES:

The consequences of these surgeries are dire and

permanent. The child may be rendered sterile; may

suffer a lifelong diminution or loss of sexual sensation

and function; and may experience scarring and incontinence.67 The long-lasting emotional distress and

trauma experienced by children subjected to these

procedures is comparable to that of child rape or sexual abuse survivors.68 For all the harm they entail,

PERSONAL STORIES FROM THE PAGES OF NIB – NORMALIZING

INTERSEX 26–29 (James M. DuBois & Ana S. Iltis, eds., 2016)

(describing a gonadectomy performed at 2 months of age); Lily

C. Wang & Dix P. Poppas, Surgical Outcomes and Complications of Reconstructive Surgery in the Female Congenital Adrenal Hyperplasia Patient: What Every Endocrinologist Should

Know, J. Steroid Biochem. & Molecular Biol. (2017); Natalie

Nokoff, et al., Prospective Assessment of Cosmesis Before and

After Genital Surgery, 13 J. Pediatric Urol. (2017): 28.e1-28.e6.

67 Toler, supra note 64, at 1; Recommendations from interACT:

Advocates for Intersex Youth Regarding the List of Issues for the

United States for the 59th Session of the Committee Against Torture at 2, interACT (June 2016), https://tbinternet.ohchr.org/

Treaties/CAT/Shared%20Documents/USA/INT_CAT_ICS_USA_

24552_E.pdf; Tamar-Mattis, supra note 8, at 3–5; Peter Lee et

al., Review of Recent Outcome Data of Disorders of Sex Development (DSD): Emphasis on Surgical and Sexual Outcomes, 8 J.

Pediatric Urol. 611 (Dec. 2012); Sarah Creighton et al., Objective

Cosmetic and Anatomical Outcomes at Adolescence of Feminising Surgery for Ambiguous Genitalia Done in Childhood, 358

Lancet 124 (2001); “I Want To Be Like Nature Made Me”: Medically Unnecessary Surgeries on Intersex Children in the U.S. 58,

Human

Rights

Watch

interACT

(2017),

https://bit.ly/2Y1N6DZ.

68 A Human Rights Investigation into the Medical “Normaliza-

tion” of Intersex People 17–18, S.F. Human Rights Comm’n

(2005), https://goo.gl/trBnGT; Tamara Alexander, The Medical

Management of Intersexed Children: An Analogue for Childhood

Sexual Abuse, ISNA (1997), https://goo.gl/fy9jae; Karsten

Schützmann, et al., Psychological Distress, Self-Harming Behav-

there is no persuasive evidence that these surgeries

provide any benefit to the child when performed

without individual consent.69 Today, these surgeries

are widely condemned by the intersex community,

and have been decried by human rights groups including the United Nations, the World Health Organization, and Amnesty International.70 Fortunately,

parents are increasingly choosing to forgo invasive,

medically unnecessary procedures until the child has

reached the age of consent. Yet amici continue to receive reports from families across the United States

that unnecessary genital surgery has been encouraged.71

The mistreatment of intersex people does not end

with childhood surgery. They may be denied medical

ior, and Suicidal Tendencies in Adults with Disorders of Sex Development, Arch. Sex. Behav. (2007).

69 Sarah Creighton et al., Timing and Nature of Reconstructive

Surgery for Disorders of Sex Development — Introduction, 8 J.

Pediatric Urol. 602 (2012); Hughes, supra note 3, at 493; S.F.

Human Rights Comm’n, supra note 68, at 19; Toler, supra note

64, at 1; Tamar-Mattis, supra note 8, at 3.

70 Juan E. Méndez, Report of the Special Rapporteur on Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 77, UN Doc. A/HRC/22/53 (Feb. 1, 2013); Toler, supra

note 64, at 1; Eliminating forced, coercive and otherwise involuntary sterilization: An interagency statement, OHCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF & WHO (2014),

https://goo.gl/nzXm6f; Policy Statement on the Rights of Intersex

Individuals, Amnesty International (2013); Recommendations

from interACT, supra note 67, at 1; Tamar-Mattis, supra note 8,

at 7-9.

Toler, supra note 64, at 1; Eric Lohman and Stephani

Lohman, RAISING ROSIE: OUR STORY OF PARENTING AN INTERSEX

CHILD (UBCPress 2018).

treatment in adulthood by physicians who are unfamiliar with or who stigmatize intersex variations.72

Even when doctors are willing and able to treat them,

some intersex people report trauma and fear of doctors due to earlier mistreatment.73

Intersex people also experience discrimination in

education, public services, sports, and—especially

relevant here—employment.74 Intersex individuals

may be fired, or never hired, due to their naturally

occurring variations in sex characteristics (or any related medical interventions).75 They may be harassed

or subjected to a hostile work environment if coworkers discover their intersex status.76 Additionally, the

United Nations recently recognized that intersex em72 Tamar-Mattis, supra note 8, at 2, 7; Fact Sheet: Intersex at 2,

Free & Equal: UN for LGBT Equality (2015), https://www.unfe.

org/system/unfe-65-Intersex_Factsheet_ENGLISH.pdf.

S.F. Human Rights Comm’n, supra note 68, at 23; TamarMattis, supra note 8, at 12; Davis, supra note 17, at 109–10

(quoting an intersex adult: “I don’t like doctors. I don’t go to the

doctor very often. I don’t trust doctors. That’s a very triggering

environment for me.”).

74 Fact Sheet: Intersex, supra note 72, at 1.

75 Tiffany Jones, et al., People with Intersex Variations and Em-

ployment, in INTERSEX: STORIES AND STATISTICS FROM AUSTRALIA

145–153, https://bit.ly/2iXvw4u; Julie A. Greenberg, Interacting

in the Workplace with Individuals Who Have an Intersex Condition 46-9 (Bloomberg BNA 2014); Hughes v. Home Depot, Inc.,

804 F. Supp. 2d 223 (D.N.J. 2011); Wood v. C.G. Studios, Inc.,

660 F. Supp. 176, 176 (E.D. Pa. 1987).

76 Hughes v. Home Depot, Inc., supra note 75; “[GA] Wife being

bullied and discriminated at work for being intersex,” REDDIT

(Nov. 27, 2018), https://www.reddit.com/r/legaladvice/comments/

a0zyf6/ga_wife_being_bullied_and_discriminated_at_work/.

ployees may face challenges related to “accessing personal services and changing rooms, dress codes,

health care and medical attention,” and called on

companies to develop policies to ensure their rights

are respected.77

IV. INTERSEX

PEOPLE

REFUTE

THE

EMPLOYERS’ ARGUMENTS ABOUT HOW

“SEX” SHOULD BE CONSTRUED.

As noted above, the Employers assert that “sex” in

Title VII refers only to “a person’s status as male or

female as objectively determined by anatomical and

physiological factors, particularly those involved in

reproduction.” Harris Pet. 6, 26. The above discussion

should make clear that this proposed definition is

woefully incomplete and not, in fact, “objective.”

Again, even the ancient Greeks and Romans knew

that sex is not binary, and medieval thinkers knew

that a complete definition must take into account not

just an individual’s body parts, but how they identify

and live their life. Surely Congress also knew this in

1964, when Title VII was enacted.

Again, for a sizeable group of people, the “anatomical and physiological factors … involved in reproduction” differ from a presumptive male/female binary

and often affirmatively point in different directions.

Such cases illustrate the inadequacy of the Employ77 United Nations Office of the High Commissioner for Human

Rights, Tackling Discrimination Against Lesbian, Gay, Bi,

Trans, & Intersex People: Standards of Conduct for Business

(2017),

https://www.unfe.org/wp-content/uploads/2017/09/UNStandards-of-Conduct.pdf.

ers’ definition of “sex.” An individual with complete

AIS may have typically female external genitalia and

secondary sex characteristics, such as breasts, with

internal testes and an XY chromosome pattern. Another with CAH may have masculinized external genitalia and secondary sex characteristics, such as a

deep voice and body hair, with female-typical internal

organs and an XX chromosomal pattern. A third may

have external genitalia that do not appear either typically “male” or typically “female,” internal ovotestes,

and mosaicism (i.e., sex chromosomes that differ from

cell to cell). For each of these individuals, what is

their sex under the Employers’ definition, which

looks only to their body parts and denies their own

self-knowledge?

Answering these questions based on anatomy and

physiology alone would epitomize the arbitrariness

that the Employers claim their definition avoids. As

noted above, even physicians experienced in intersex

medicine may disagree about what binary sex to assign to a given infant in cases like these. If the Employers’ definition were adopted, Title VII cases

would presumably devolve into a battle of experts

over what a plaintiff’s “objective” sex is, with each

side’s physicians staking out different positions on

the “maleness” or “femaleness” of the plaintiff’s external genitalia, gonads and other internal organs,

chromosomes, hormones, and secondary sex characteristics. It is hard to imagine something more demeaning and less conducive to Title VII’s goal—

making one’s genitalia and other sex-linked features

irrelevant to hiring, firing, and promotion.

A definition of “sex” that encompasses an individual’s identity and lived reality would avoid this ab-

surd outcome. It would also comport with medical

practice: again, physicians broadly agree that the

goal in assigning a binary sex to an intersex child is

to predict how the child will self-identify as an adult,

and that when an intersex person’s gender identity

differs from the binary sex they were assigned in infancy, that identity should prevail.78 See In re Estate

of Gardiner, 22 P.3d 1086, 1110 (Kan. Ct. App. 2001)

(“In the end it is only the children themselves who

can and must identify who and what they are.” (quoting William Reiner, To Be Male or Female – That is

the Question, 151 Arch. Pediatr. Adolesc. Med. 225

(1997))), aff’d in part and rev’d in part, 42 P.3d 120

(Kan. 2002). And if one’s deeply-felt identity and lived

reality are relevant in the case of persons who happen to be born with intersex traits, there is no reason

why they should not be considered for all persons.

The Employers suggest that, because gender identity is ultimately grounded in one’s internal sense of

self, it is “fluid,” “variable,” and incapable of proof—a

mere “profession[] of belief,” not an “objective fact.”

Harris BIO 30. But the evidence shows that gender

78 See Lee et al., supra note 12 (“Overall factors to be considered

for male or female assignment included probable adult gender

identity (considered most important, but only tentatively predictable)…”); Clinical Guidelines, supra note 5, at 25-31 (“It is

impossible to predict with complete confidence what gender any

child will eventually come to identify with. Like all other children, children with DSDs [differences in sexual development]

are given an initial gender assignment as boys or girls. But

team members should be aware … that children with certain

DSDs are more likely than the general population to feel that

the gender assignment given to them at birth was incorrect.… It

is best to let patients decide for themselves what anatomical

features accord with their self identities.”).

identity is a deep-seated, persistent trait that is fundamental to a person’s sense of self and is evidenced

by how they live their lives every day. See, e.g., Harris BIO 5 (“I have had to live with [this] every day of

my life … I need to do this for myself and for my own

peace of mind and to end the agony in my soul.”). Indeed, as the experiences of intersex people show, a

person’s gender identity may be a more “objective”

way of defining their sex than particular anatomical

or physiological traits.79

To be clear, the Court need not authoritatively

demarcate the boundaries between who is “male” and

who is “female” to resolve these cases, as the Employees should win even under the Employers’ “physiological” definition of sex. For example, in No. 18-107, Petitioner asserts that Respondent Aimee Stephens’s

“sex” was synonymous with her “anatomy and physiology” (which Petitioner presumes was male-typical),

and that her female gender identity had no relevance

under Title VII. Harris Pet. 2. But even on these

premises, Stephens still has a claim, because she was

fired for not dressing and acting the way her employer believed someone with male-typical “anatomy and

physiology” should dress and act. Cf. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) (plurality). Likewise, in No. 17-1623, Petitioner asserts

79 In any event, “professions of belief” are already protected un-

der Title VII—specifically, those that are religious in nature.

Nobody would dare claim that, just because they “lack a fixed

external referent” and could theoretically change or be falsified,

religious convictions are unworthy of statutory protection. See

generally Sue Landsittel, Strange Bedfellows? Sex, Religion, and

Transgender Identity Under Title VII, 104 Nw. U. L. Rev. 1147,

1150 (2010).

that Respondent Donald Zarda’s “sex” was strictly a

function of his (presumably male-typical) “reproductive organs,” and that his sexual orientation had no

relevance under Title VII. Zarda Pet. 16. But even

accepting this as true, Zarda still has a claim, because he was fired for not acting the way his employer believed someone with male-typical “reproductive

organs” should act—and he would not have been fired

if he had had female-typical “reproductive organs”

and everything else (including his choice of romantic

partners) were held constant. Cf. Los Angeles Dep’t of

Water Power v. Manhart, 435 U.S. 702, 711 (1978).

In short, discrimination against an employee because of their sexual orientation or transgender status is a form of discrimination because of sex, even

under the Employers’ view of sex. The Court, therefore, can leave the precise definition of that term for

another day. However, if the Court chooses to define

“sex” in these cases, it should reject the Employers’

simplistic and incorrect binary definition, which rests

on demonstrably false assumptions about human

anatomy and physiology.

CONCLUSION

For the reasons above and in the Employees’ merits briefs, the judgments in No. 17-1623 and No. 18107 should be affirmed, and the judgment in No. 171618 should be reversed.

Respectfully submitted.

JONAH M. KNOBLER

Counsel of Record

DEVON HERCHER

PATTERSON BELKNAP

WEBB & TYLER LLP

1133 Ave. of the Americas

New York, NY 10036

(212) 336-2000

jknobler@pbwt.com

Counsel for Amici Curiae interACT et al.

July 3, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.