ESSAY: The Fundamental Right to Be Free of Arbitrary Categorization: The Brain Sciences and the Issue of Sex Classification Skip over navigation
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Copyright (c) 2003 Washburn Law Journal
Washburn Law Journal

ESSAY: The Fundamental Right to Be Free of Arbitrary Categorization: The Brain Sciences and the Issue of Sex Classification

Winter, 2003

42 Washburn L.J. 257


William Kitchin*


I. Introduction
There are two basic approaches to identifying a person's sex for legal purposes. First there is the traditional approach, a practical approach, followed for the entire 100,000 year history of our species. This approach is simple and precise. There are two sexes, male and female, and which sex a person is is indicated at birth by a person's genitalia. We now know that the type of genitalia is determined by the chromosomes. In re Estate of Gardiner 1 is a recent judicial expression of this approach to sex classification.

The second approach, a biological approach, is more complex and is still emerging in the medical literature. There are basically two sexes, 2 male and female, though some persons are anatomically not clearly members of either of those two categories. Which sex a person is would usually be indicated by the genitalia, but not always. Indeed, in the real world, sex is more than just chromosomes. The argument of this article is that classification schemes based on the identification of a person's sex in cases of sex ambiguity must consider more than just genitalia because sex identification is a matter of chromosomes plus brain functioning plus brain structure. All three of those things in synthesis indicate a person's sex. 3 Thus, a person may anatomically look like a female, but if that person's brain organization and functioning is not female, then that person is not a female ...
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