‘Caught in the crossfire:’ How anti-transgender legislation affects intersex Kansans

When Koomah was adopted in Topeka, Kansas, their family decided Koomah was female, despite them showing physical and biological characteristics typical of both males and females.

Years later, when Koomah was a teenager, they were forcibly given surgery through a court order to make their genitals conform to the female gender identity they were assigned by their parents and doctors. Koomah is intersex, or a person born with a variety of combinations of male and female biological traits.

Koomah, who goes by their first name and now lives in Houston, called nonconsensual surgeries like the one they underwent as a teenager medically unnecessary and only existing because of “a need to enforce a sex binary that has never existed.”

Anti-transgender legislation in Kansas and Missouri, which are justified on the basis of the sex binary, could reap consequences for other intersex people like Koomah.

Intersex characteristics can be prevalent immediately at birth, with estimates ranging about 1 to 1,500 births, while others do not show up until much later, sometimes during puberty or later in adulthood.

Academic research about the intersex community is limited, so approximate estimates of the intersex population vary from as little as .02% to close to 2% of the overall population due to disparities in when intersex characteristics show up and a lack of consistent research.

A widely cited 1993 study by the New York Academy of Sciences estimated that the number of intersex people is as high as 1.7% of the population — or about as common as redheads.

Republican-led bills targeting drag performers, gender-affirming care and regulating who can enter single-sex spaces often define sex based on a singular sex trait, leaving gray areas as to where intersex people fit in.

“It is anti-trans legislation,” said Koomah, co-founder of the Houston Intersex Society in Texas. “But what happens is we are caught in the crossfire of their hatred. They want to make [transgender people] not exist, but we get caught up in that also.”

Reps. John Eplee and Brenda Landwehr, two Republicans members of the Human Health and Services Committee where many pieces of anti-transgender legislation were introduced, declined to be interviewed on the topic Wednesday.

‘Women’s Bill of Rights’ could block intersex people from public bathrooms

One such bill, which lawmakers call the “Women’s Bill of Rights,” defines sex based on the presence of ova in females and the ability to fertilize ova in males. The legislation aims to bar transgender people from entering single-sex spaces such as domestic violence shelters, bathrooms and locker rooms.

Sam Sharpe, who identifies as both transgender and intersex, recalled an incident when they used the women’s bathroom in a small town in Missouri and was told to leave by another person using the bathroom.

At that time, Sharpe had ova — which, under this bill, would permit Sharpe to use female restrooms — but also had a beard.

Sharpe said their experience embodies the dangers of defining sex based on a singular characteristic and subsequently using those definitions to restrict the rights of intersex people.

“These are situations that are not uncommon,” they said. “There is no single metric that you can use to say everybody’s either a man or a woman. Any metric you use, there will be people who are undefinable or who have a lived experience that is contradictory to what the bill thinks would work.”

Rep. John Carmichael, a Wichita Democrat who is an attorney, said the bill’s language defining sex based on ova could prevent intersex people from entering any single-sex space and isolate intersex people from the rest of society.

“They gave no consideration to how these people — these citizens — will have the right to use any public accommodation including those that involve a bathroom,” he said. “They didn’t give any real consideration to how intersex people will fit in under anything or under any category.”

The Independent Women’s Law Center, an organization which has advocated for the bill in Kansas and other states, disputed Carmichael’s interpretation and argued that people with differences in sex development would not be affected by the legislation.

“People with DSD conditions are not a third sex. Nor are they trans. They are the exception that proves the scientific sex binary, and they should be accommodated on a case-by-case basis,” said May Davis Mailman, a Kansas native who is a senior fellow with Independent Women’s Law Center.

However, the bill as currently written does include a specific carve-out for case-by-case accommodation for intersex people.

Liz Hamor, the CEO at the Center for Daring, an organization which advocates for LGBTQ+ people in Kansas, said bills like the Women’s Bill of Rights attempt to erase the existence of intersex people by means of the sex binary.

“These bills narrowly define sex as either male or female in such narrow ways,” she said. “But I’ve talked to a lot of intersex people who don’t fit into either of those categories, so it excludes a ton of people. Gender and sex is not that narrowly defined by biology.”

Brittany Jones, the director of policy and engagement for Kansas Family Voice who advocated for the legislation, said the bill only aims to reinforce the statutory construction that courts have been using for the purpose of sex discrimination and Title IX cases.

She added that intersex individuals would “continue to have space in our society, just like they currently have.”

Gender-affirming care ban still allows nonconsensual surgery on intersex kids

Nonconsensual surgeries performed on intersex infants are often medically unnecessary and can have long-lasting negative psychological effects. In 2017, three former U.S. surgeons general wrote that nonconsensual surgeries “violate an individual’s right to personal autonomy over their own future.”

But legislative efforts in Kansas aiming to restrict gender-affirming care for minors include carve-outs that ensure intersex minors can still undergo forced surgeries.

“It’s an attempt to justify something that really has no justification,” Koomah said. “Lots of times the argument is for the preservation of bodily autonomy, but they’re doing the exact opposite… every bill I’ve seen on this promotes these nonconsensual surgeries on intersex children.”

At the age of 5, Mo Cortez woke up in a hospital bed with his testicles removed after his mother was reported to Child Protective Services, accused of raising her daughter as a son. Cortez said the surgery “traumatized, caused PTSD” and sterilized him.

After the procedure, Cortez was socialized as female and felt as though his “body and sexuality was cursed” after undergoing nonconsensual surgery to alter his genitals.

Decades later, Cortez began taking testosterone to undo decisions made about his gender without his consent at 30.

Carmichael said the language of the legislation treats intersex individuals as “third-class citizens,” which may “increase the pressure to do body-altering surgeries and hormonal treatments” that deny intersex infants their civil rights. Carmichael said these bills are unfair because they are subject to selective enforcement due to their unclear language.

“You cannot run a society where your rights are determined by the decision of one prosecutor or lawyer,” he said.

Sharpe, who is an advocate at InterConnect, an organization which advocates for intersex people, added that the bills which target gender-affirming care often operate under the misconception that transgender children are receiving major surgeries at young ages.

“These surgeries are not often done on transgender children,” Sharpe said. “But they are being done on intersex children coercively, rather than this idea that people are pushing forth from this legislation that trans children are receiving surgeries like vaginoplasties.”

Could trans sports bans ensnare intersex athletes?

A Kansas bill which defines male and female based on biological characteristics such as sex chromosomes, hormones, gonads and internal/external genitalia with the intention to bar transgender female athletes from participating in sports with cisgender women, has already passed in the House.

Sharpe, who was a Division III swimmer at Carleton College in Minnesota, said the bill would likely not produce “any positive outcomes” for intersex athletes because the bill’s language is vague in defining definitions of sex, which dictate who can compete on teams.

Sharpe also expressed concern about how lawmakers intend to evaluate athletes to determine which teams — male, female or co-ed — they can compete on. They said that in order to accurately determine someone’s “biological sex,” they would theoretically have to perform karyotype, hormone and blood testing among other procedures.

“If you have a child who is playing sports who doesn’t know they have a condition like congenital adrenal hyperplasia, and they start developing in a nontraditional way, how is that going to be handled?” they said. “I don’t think there is any good way under the bill’s language that something like that could be handled.”

Carmichael said the language in this bill would make it so intersex athletes could only compete on co-ed teams, potentially denying them the opportunity to participate in athletics.

“Intersex individuals do not fit the biological definition of male or a female, and that leaves them in limbo,” he said. “And the end result is to stigmatize these individuals, hold them up to public ridicule and deny them the opportunity to participate in the same types of activities of those of us who are born male or female.”

Last month, the Kansas legislators introduced a bill which would criminalize drag performances in the presence of children. The bill defined drag as any instance where a performer uses clothing, makeup or accessories to exhibit or exaggerate features of the opposite gender.

While the bill did not move forward, similar legislation has popped up around the country targeting drag performers.

Koomah said the vague definitions of what drag entails could potentially criminalize being transgender in public and may impact intersex people who have secondary sex characteristics which could be perceived as drag under the bill’s definition.

“It sets a pathway to potentially criminalize trans and intersex people as sexual predators for merely existing in public,” Koomah said.

This story was updated to include a comment from the Independent Women’s Law Center, which has advocated for the “Women’s Bill of Rights.”