By Grace Vitaglione and Rachel Crumpler
State lawmakers at the North Carolina General Assembly are pondering another bill that would affect transgender people — the latest in a string of legislation targeting this population that has been introduced in recent years. Some of it has become law.
Senate Republicans added language to House Bill 805, which was originally written to regulate online pornography, that would recognize only two sexes in state government rules and public policies. The language echoes President Donald Trump’s Jan. 20 executive order that asserted this as the U.S. government’s position.
The new provisions — which don’t yet appear in any official online versions of House Bill 805 — would define the terms “male” and “female” in a way similar to those laid out in Trump’s order. Another new measure would prohibit the use of state money to pay for gender-affirming care for incarcerated people and would require the preservation of the original birth certificate when a transgender person goes to change the sex on that form.
These additional measures sparked concern from advocates for intersex and transgender people; they acknowledged that while most people fall into one category of male or female, the new language doesn’t acknowledge the existence of people who do not. Experts also said defining biological sex and determining whether someone is male or female are more complicated than they seem. They also say the bill may not adequately reflect scientific consensus.
In North Carolina, fewer than 1 percent of the adult population, or an estimated 71,300 people, identify as transgender. In addition, an estimated 8,500 people ages 13-17 identify as transgender, according to a 2022 report by UCLA’s Williams Institute, which researches sexual orientation and gender identity law and public policy.
When Trump signed his executive order, Deanna Jones from Orange County said she felt “illegitimate” as a transgender person. Jones is the president of Harmony: NC LGBT+ Allied Chamber of Commerce.
“It was painful, and it’s painful to see North Carolina do that,” she said.
‘Co-opted’ bill
House Bill 805 was originally a bipartisan bill, co-sponsored by Reps. Laura Budd (D-Matthews) and Neal Jackson (R-Robbins), to prevent exploitation of performers in online pornography. It passed the House unanimously on May 7.
Senators added new language afterwards, which Sen. Buck Newton (R-Wilson) presented in a Senate committee meeting on June 10, where lawmakers discussed but did not vote on the language.
Budd said she found out about the additions the night before the committee meeting. She and the other primary co-sponsors were disappointed by the move, she said.
“This is a bill that had very real-world impacts for women and men,” Budd said. “[The addition] took a really substantive piece of legislation, that would have had a practical impact for the positive, and just co-opted it for purposes for which it wasn’t intended.”
Newton said at the committee meeting that the bill was needed because “some in our society” are confused about the fluidity of sex, so it’s important the state government clarifies that there are only two sexes. There’s an effort to redefine sex and gender as subjective rather than objective, he claimed.
“We see it play out in women’s sports,” he argued. “We see it play out with safety and security in locker rooms. We see it play out in places where two genders are put in intimate spaces together against their will.”
Democratic senators took issue with the language: “I actually don’t understand why this chamber is so obsessed with genitalia,” Sen. Sydney Batch (D-Raleigh) said.
She asked Newton whether he or others behind the language consulted any doctors or geneticists. He said he had not personally had those conversations.
Sen. Sophia Chitlik (D-Durham) asked what problem this legislation would solve in terms of cost savings or efficiency.
“We’re not here to legislate public opinion,” she said in committee. “We’re here to solve problems.”
Look at House Bill 805’s language:
‘It’s not clear cut’
House Bill 805 would define the terms “male” and “female” as a person who, at conception, belongs to the sex characterized by a reproductive system with the biological function of producing eggs or sperm.
It would also define biological sex based on “reproductive potential or capacity, such as sex chromosomes, naturally occurring sex hormones, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.”
Eve Feinberg, a professor of obstetrics and gynecology at Northwestern University who specializes in reproductive endocrinology and infertility, said there are differences in how sexual development unfolds and that one’s reproductive system doesn’t always follow the sex chromosomes.
“Why do we need to categorize?” Feinberg asked. “Why do we need to put people in one of two boxes? It’s not a binary.”
“They’re trying to impose a political agenda onto a biological process,” she continued.
Defining whether someone is male or female is “not clear cut” all the time, said Jane Maienschein, a professor at Arizona State University who specializes in the history and philosophy of biology. Using the term “conception” in the definition is flawed, she said, as that’s a social term, not a biological one. Fertilization is also a process that happens over time as the egg and sperm cell come together, she said.
The proposed language is a “clusterf-ck of a definition,” said Alice Dreger, a writer and historian of science and medicine. There are women born without functioning reproductive systems, she said, people born with neither ovaries nor testes, and some with a combination of male and female reproductive organs.
The American Medical Association stated in a 2023 issue brief that sex categories are not “unchanging and exclusively male or female,” referring to a landmark study that demonstrated about 1 in 50 live births have variations in chromosomes, gonads, hormone levels, internal sex organs and/or external genitalia that differ from the expected ideas of male or female. Sex characteristics may also vary over time due to changes like menopause.
Chitlik raised the point of a male who’s had a vasectomy and therefore would no longer be able to produce sperm. She asked if this bill would make it so that person would no longer be considered male.
Senators Newton and Amy Galey (R-Burlington) argued that sex chromosomes could be instead used to determine one’s sex in cases where someone has reproductive issues, such as infertility or having had a vasectomy. But using sex chromosomes to make a determination is not always clear cut either, medical and sociological experts told NC Health News.
There are two sex chromosomes — X and Y. But those chromosomes get expressed on a spectrum with varying degrees of biological differences, Feinberg said. They don’t always align into two neat categories.
Charlotte family physician Rhett Brown, who has transgender and nonbinary patients, echoed that humans exist on a spectrum, which makes it problematic to define sex.
“There is not a single part of our unique identity that is not on a spectrum,” he said. “If you tell me you are a blonde, are you a light blonde? Are you a platinum blonde? Are you a reddish blonde? Everything in nature exists on a spectrum.”
In the relatively rare cases where someone doesn’t have an XX or XY chromosome, Galey said, it would then fall to the person’s subjective experience.
Where do intersex people fit?
House Bill 805’s language ignores the existence of intersex people, said Dreger, who’s been studying intersex conditions and worked with the intersex rights movement for decades. People who are intersex have reproductive or sexual anatomy that does not exclusively fit into a male/female sex binary.
Around 1.7 percent of the U.S. population is intersex, according to the UCLA Williams Institute.
“Nature is so much more complicated than people want to deal with,” Dreger said.
Dreger pointed to androgen insensitivity syndrome, for example, in which people have male chromosomes but develop female genitals instead because their bodies can’t respond to male sex hormones.
There are over 40 medical terms for the different ways sex anatomy might develop, according to interACT, an intersex advocacy organization.
When doctors assign one’s sex at birth, they don’t always get it right, Dreger said.
For some kids, “it’s a crapshoot on whether to assign the male or female,” she said. “You just find out later if that was right, and some of the kids switch because they decide that the one that was assigned to them doesn’t work for them.”
Impact on transgender community
The bill also defines “gender identity” as not legally or biologically equivalent to sex.
Adoption of such language by the federal government and some states is problematic as it attempts to separate sex and gender, which social scientists and medical professionals have long understood as complex and intertwined concepts, according to a January issue brief from the Williams Institute on the impact that redefining sex has on transgender, nonbinary and intersex people.
Gender identity is a real thing, yet this language assumes it’s something fictional or intangible, said Elana Redfield, federal policy director at the Williams Institute.
“The fact is that people’s lived experience of gender is far more complicated and does not fit into these categories,” Redfield said.
The “elephant in the room” is that lawmakers are trying to get rid of trans people and deny their existence, said Feinberg.
Jones, the transgender woman from Orange County, said her biological sex when she was born doesn’t have anything to do with her identity. She has identified as a woman since she was 4 years old. Jones said she doesn’t understand why living her life makes people so mad.
She said bills like these keep her on edge.
“I don’t know when someone’s going to come for me and my rights,” Jones said.
Phoenix, a transgender teenager in Wake County who requested NC Health News not use their last name for privacy and safety concerns, said they feel like they can’t be a normal teenager.
“I can’t really do anything without somebody having an issue with it, because I’m this big scapegoat for absolutely no reason,” Phoenix said.
It’s frustrating and feels like a “waste of time and money” on the government’s part to focus on a “minuscule issue,” Phoenix said.
Another section of the bill would require the state registrar to preserve and attach the original copy of a birth certificate when issuing a new copy if someone changes their sex on their birth certificate.
Jones said she changed her birth certificate, and she worries if this bill were to become law, that measure would be another step towards stripping her identity.
“The next logical step for them is to say the birth certificate that aligns with your identity is the one that is no longer valid,” she said.
Gender-affirming care for incarcerated people
The bill would also prohibit state funds from being used to provide gender-affirming care — puberty blockers, hormones and surgical gender transition procedures — to incarcerated people. The Department of Adult Correction currently has 254 people who identify as transgender among its prison population of nearly 32,000 people, according to department communications director Keith Acree.
Acree said that in the past year, 42 of 381 transgender people housed in North Carolina’s prisons were prescribed hormone replacement therapy at a total annual cost of approximately $63,000. Currently, 28 transgender incarcerated people receive hormone replacement therapy, he said.
But Acree stated no state funds have ever been used for gender-affirming surgical procedures.
When asked why the language was included despite no funds being used for surgical procedures, Newton said, “We think it’s important that we draw a line now, before anybody attempts to do such a thing.”
Access to gender-affirming surgical procedures has led to ongoing litigation against the state prison system after the ACLU filed a lawsuit in 2022 on behalf of Kanautica Zayre-Brown, an incarcerated transgender woman who was denied a gender-affirming genital surgery.
Multidisciplinary groups called Transgender Accommodation Review Committees at the facility and division level evaluate gender-affirming care requests and determine whether medical treatment is medically necessary, Acree said. They also weigh in on other possible gender-affirming care accommodations, such as gender-consistent clothing, hygiene items and private showering.
Next steps
North Carolina is not the only state considering and possibly enacting this kind of legislation. Montana passed a law in 2023 defining sex in state law as only male or female, but the law was struck down in court a year later. West Virginia passed a law defining male and female in March.
House Bill 805 is planned to be heard again in committee this week. The Senate Judiciary committee had planned to vote on the bill last week, but Newton said it was pulled after lawmakers decided to work on it further.
Jackson, a Republican primary co-sponsor of the original bill, said he’s working to continue to have bipartisan support for the legislation.
When asked about the bill by NC Health News, Speaker of the House of Representatives Destin Hall (R-Granite Falls) said his caucus believes there are only two sexes.
House Minority Leader Rep. Robert Reives (D-Goldston) said he’s disappointed by Republicans playing “political games” with a bill that would add protections for people appearing in online pornography — and that the House already passed unanimously.
“It’s a position that to them is more valuable as a piece that they can use for mailers as opposed to something trying to protect women who are in a very vulnerable situation,” he said.
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