Towards ensuring uses of “sex” are better defined for law and public policy

When legislators and policymakers are required to define “sex” in laws and policy, they often rely on definitions from the fields of biology or health sciences. However, in a Policy Forum, Maayan Sudai and colleagues argue that although the practice may seem like sound governance, it can lead to illogical, unintended, and occasionally hurtful outcomes. According to the authors, researchers need to be aware of how sex-difference science can be interpreted and applied – or misapplied – in legal and policy contexts. There is often a substantial disconnect between how scientists define and use sex differences in research and how policymakers make sense of and apply the same concepts and definitions in supporting or challenging policy across a variety of politically contested issues, including LGBTQ+ rights and protections. Here, Sudai et al. call attention to the issue and outline the central concerns over conceptualizing sex in relation to biology and the law. The authors propose several approaches to help scientists understand how their work may be interpreted by others, particularly those outside of the scientific community, and to help scientists identify areas where they can be more explicit about what assumptions or positions their work can, or cannot, support. “When scientific uses of biological sex concepts lack clarity, precision and rigor, this increases the risk that legal advocates will misunderstand and misrepresent the scientific consensus on biological sex,” write Sudai et al. “Reflective, ethical and accountable practices surrounding how sex differences are discussed, contextualized and applied in scientific studies are vital when science may be used to justify harmful or discretionary policy.”