Geneticists, biologists, anatomists, and other empirical and observational scientists work with the distinction between male and female, and need functional decision procedures to determine gender. Likewise, the legal system has the same need to distinguish between the two, but does so in a different way. Finally, the business world has a need to make the gender distinction, but does so in a third way.
An interesting moment occurs when the empirical scientist, the lawyer, and the businessman must find verbal formulations which satisfy all three of them.
An enterprise called the Genographic Project, organized by the National Geographic Society, is such an instance. Offering some form of genetic analysis to the public, the project involves geneticists. Because it is a non-profit commercial enterprise, it includes business leaders who want to make sure that it is financially viable, and they hire lawyers to protect those revenues from potential lawsuits.
Such genetic analysis is gender-dependent. The way the test results are processed and interpreted depends upon the gender of the donor. In this context, then, the question must be posed to the person donating the sample (usually saliva): “what is your gender?”
The answer, for the purposes of genetic analysis, is an answer that cannot be changed by gender reassignment surgery, by various hormone treatments, or by any other form of gender reassignment therapy. A geneticist analyzes a sample from an individual based on an immutable gender identity which that individual received before birth.
Moving from science to law, the legal disclaimers on the materials and genetic sampling kits distributed by the Genographic Project are designed to clearly inform the individual who donates a sample, and designed to avoid lawsuits which could arise from misunderstandings. These disclaimers state:
Because women do not carry a Y chromosome, this test will not reveal direct paternal deep ancestry for female participants. Women will learn other information about their paternal side of the family, however.
In the same document, the following statement reiterates the clear and immutable gender difference:
We will run a comprehensive analysis to identify thousands of genetic markers on your mitochondrial DNA, which is passed down each generation from mother to child, to reveal your direct maternal deep ancestry. For men, we will also examine markers on the Y chromosome, which is passed down from father to son, to reveal your direct paternal deep ancestry.
When a patient, or donor of genetic material, submits a sample to a geneticist, the geneticist has no choice to but to analyze the sample as being given by a person of the gender which the donor had at conception and at birth. No gender reassignment surgery or therapy can change the donor’s gender identity. The laboratory is indifferent to whether the donor “identifies as” a male or female.
