Defining Male and Female: Intersexuality and the Collision between Law and Biology

Abstract

This article explores how the law has defined and should define the terms male, female, and sex. It provides a detailed description of the sexual differentiation process and the medical conditions leading to ambiguous sexual features that affect millions of people. In addition, it describes how these terms have been used in varying disciplines and by Western society and other cultures and provides insight into how legal institutions could define these terms. Finally, it uses the lens of therapeutic jurisprudence to critique the cases that have established a person's legal sex based upon inappropriate criteria. It proposes that legal institutions adopt a more flexible approach to determining a person's legal sex that emphasizes the importance of gender self-identification.

Keywords: sex, male, female, intersex, transsex, therapeutic jurisprudence, sexual differentiation, binary, binary jurisprudence