Kudzu and the California Marriage Amendment
by Rick Moen
August 25, 2008
(last updated October 18, 2017)
This past century, large portions of the American South have been consumed by an unintended side-effect.
I refer to the infamous "kudzu" vine, imported from Japan for its stunning erosion-control properties. This tactic worked: Crumbling riverbanks and hillsides were stabilized all over the South — but, then, everyone realized with mounting horror that this hardy legume is almost completely unstoppable anywhere protected from hard freezes, growing at the awesome rate of a foot per night and reaching heights of 100 feet. Entire abandoned houses have been observed to vanish under a kudzu carpet, over a summer growing season. It's now considered a pest; sometimes, an outright menace.
The plant can be used with caution, where its invasive side-effect is known and planned for — but the point is that it was deployed without understanding its full effects.
Laws' side-effects, likewise, can render them self-defeating (though, on the bright side, bad laws are easier to eradicate than kudzu): I'm going to explain, below, why recently popular marriage-definition legislation like California's November 2008 "California Marriage Protection Act" (an initiative state-constitutional amendment) creates kudzu-class unintended side effects its proponents haven't anticipated and will find horrific — in that they're going to end up mandating and legally sanctifying exactly the sort of same-sex marriages they're intending to ban.
Please note: Yr. humble author is deliberately avoiding the question of whether same-sex marriage is desirable, an offense against God, and so on. (For what it's worth, said author is a heterosexual genetic male, happily and monogamously married to qty. one (1) heterosexual genetic female. So, this essay is not a sneaky ploy to induce gender confusion in unwary citizens.) It's not that I don't have opinions on that contentious question. It's just that they're not relevant to what I'm writing about.
In short: I'm going to show that recent legislation restricting marriage to "a man and a woman" — regardless of whether you consider that effort good, bad, or indifferent — is going to produce harmful, unintended side effects (maybe even for you, your family, your friends, and so on), exactly the opposite of what proponents intend.
I'll not be moralizing, and this isn't lobbying from the "intersex" movement or anyone else. I'm just a regular hetero guy, quietly telling you what's starting to happen, why, and how to see for yourself. OK?
Marriage Protection Meets Biology
Here's the sort of law we're talking about:
Eliminates Right of Same-Sex Couples to Marry: Initiative Constitutional Amendment
SECTION I. Title
This measure shall be known and may be cited as the "California Marriage Protection Act."
SECTION 2. Article I. Section 7.5 is added to the California Constitution, to read:
Sec. 7.5. Only marriage between a man and a woman is valid or recognized in California.
Now, that's simple and should have predictable, orderly results, right? I'll bet the Soil Conservation Service guys in the 1950s thought that about kudzu, too.
The biggest problem is that laws like the California initiative will make the courts decide who is male and who is female — and all available decision criteria create unavoidable miscarriages of justice that will, or should, dismay initiative proponents.
You're probably thinking, about now, that I'm going to exaggerate the sex-definitional1 problem: Probably, you and everyone you know is unambiguously male or female — or at least has always believed himself or herself to be so, and nobody's challenged that, and nobody's likely to.
That's true, absolutely: Only maybe one live birth in 100 has some non-standard sex anatomy, and genetic anomalies are slightly rarer than that. However, let's talk about those 1-in-100 or 1-in-1000 cases — because those could be you, or your aunt, or your best friend — and because our system of law has to deal with 1-in-1000 situations, too.
An illustrative example: Let's say you're an adult woman. You were always female; you never had any doubts about this. You have all the right parts and none of the wrong ones; you think of yourself as a gal. You get married. (Yes, I do mean to a man.) Somewhere down the road, your genes get tested: To your astonishment, it says you're not only not XX (double-X being the classic female chromosome pairing), but in fact XY (classic male chromosomes). Testing shows your blood to be loaded with testosterone and other classic androgens (male hormones). Ultrasound locates an undescended set of testes in your abdomen. What's going on? (Note that all women do produce androgens, normally, but at much lower levels than in men.)
What's going on is called Androgen Insensitivity Syndrome (AIS, found in both "Partial" = PAIS and "Complete" = CAIS sub-variants), where, at a critical early stage of development, because of a structural variation on your X chromosome, your cells' androgen receptors became unable to respond to those hormones (with CAIS). The hormones were there, but had no effect. Your entire subsequent development was thus into a woman. You're a gal — one with no ovaries / womb and thus infertile, and with vestigial testes somewhere inside, but every other inch a woman.
Laws like Proposition 8 might very well cause such a woman's marriage to be retroactively annulled — or prohibited in the first place. Furthermore, if the law decides that this particular citizen is male on account of the Y chromosome, testosterone, and testes, then she would be permitted to marry... guess who?... another woman. So, courtesy of Prop. 8, we are likely to suddenly have court-mandated same-sex marriages.
Let's say you're an adult male. You've always been male; you seem to have exactly the right parts, and so on. Your genes get checked one day, and they come up "XX" — the classic chromosome pair of a genetic female. Yet, you're a 230 lb. guy with facial hair who was a high school running back. What's going on?
When your mother and father's genes fused, the key part of Dad's Y chromosome (the "SRY" = Sex-determining Region Y bloc) got translocated to somewhere other than chromosome 46. Are you an XY, a genetic male? Well, no, you're not — even though you think you're a guy, you look like a guy, and so on. Your marriage might end up getting annulled, too — and you might end up being permitted to marry only men.
It turns out, those two cases — AIS and transported SRY blocs — are only the beginning of the troubles we're facing. Here's a litany of other ways people can end up biologically difficult to classify, through no fault of their own. I'll keep the jargon factor low, but you can certainly skip this list if not interested:
You're a girl with female sex organs — but, at puberty, your voice deepens and some testes descend out of your lower abdomen. (I'm steering clear of some of the more graphic details, here.) It turns out you have XY chromosomes (male), but you look like a young woman. You might or might not be fertile, but it would (if so) be as a male. This is a recessive genetic condition called "5-alpha-steroid reductase deficiency", that causes testosterone to be chemically transformed in peripheral tissues before it can have its usual effect.
You're a man with all of the apparent parts, facial hair and all. One day, during unrelated abdominal surgery, doctors are surprised to find inside a full set of normal female parts (ovaries, Fallopian tubes, womb, etc.). Genetic typing shows you to be XX, but something called "Congenital Adrenal Hyperplasia", starting early in life, caused your adrenal glands (near your kidneys) to induce production of an unusual mix of sex hormones, changing your entire course of post-natal development, leading you to appear, and believe yourself to be, male.
You're a gal: All the gal parts. None of the others. Yet, you're XY. It turns out that, during development, you ended up short of a hormone called "Müllerian Inhibiting Factor". That factor would have let your Müllerian ducts regress and the related Wolffian duct develop, leading to more-complete and functional development of male organs, which would have given you more androgens. Its absence means you end up looking, seeming, and believing yourself female. (This pattern of early development is called "gonadal dysgenesis".)2
You're a girl — but you don't seem to be entering puberty. Genetic testing shows you're XY, although in all other respects apparently completely female. What's happened is that the sex-determining "SRY" region of the Y chromosome didn't trigger the development of testes, with resulting female development. This is called "Swyer syndrome", or "XY gonadal dysgenesis".
You're a man, albeit somewhat on the tall and thin side. You and your wife are having fertility problems. You're both checked: It turns out you, the husband, have "XXY" or "XXXY" or "XXYY" chromosomes. (There's also been one reported case of "XYYY".) You might be borderline fertile (as a man), or you might be out of luck. This is called "Klinefelter's syndrome". There's also a variant "mosaic" form of Klinefelter's where some of your body's cells have XY chromosomes and others are XXY.
Speaking of mosaicism: You're a male with all the fixings, but also female equivalents — and raised as a boy. You then get the worst parts of both types of puberty, with both menstruation and your voice cracking, and so on. This is an incredibly rare but documented "cellular mosaic" condition where you have some XY cells and some XX ones, the only known way of generating true (bi-fertile) hermaphrodism, which is otherwise impossible and a medical myth. (There can be diverse combinations of mosaicism: XY with XXY, XX, XXXY, and so on.)
You're a man with all the normal parts. You and your wife are having fertility problems. Genetic testing shows you to be "XX", but with the sex-determining "SRY" genetic bloc also present on some non-standard chromosome, and thus producing male development anyway.
You're an apparently normal man, with fertility problems. Genetic testing reveals "XX" genes, and no SRY block can be found anywhere. This "SRY-negative XX male syndrome" is observed but so far not fully understood.
You're a gal. You're late entering puberty. The doctors find no womb or a partial one. Otherwise, you're an (infertile, except via surrogacy) XX woman with absolutely nothing wrong with you. The causes are not really understood, but it's called Mayer Rokitansky Küster Hauser (MRKH) syndrome.
You're a gal, but your secondary sex characteristics at puberty seem underdeveloped, relatively speaking. You turn out not to be XX, but rather have a single, unpaired X chromosome (also called either "XO" or "45,X" as opposed to "46,XX") — or a second X is present but abnormal, or some single-X cells are mosaiced among XX ones. In any of those cases, you might be fertile, or maybe not, and it's called Turner (or Ullrich-Turner) syndrome.
You may be unsurprised to hear that babies also sometimes end up with mixed sexual characteristics caused by fetal conditions (e.g., Mom was prescribed a progestin-based medicine such as Danazol, a testosterone-related hormone once prescribed to treat endometriosis), or for no identifiable reason. Traditionally, obstetricians tend to pick a sex and use neonatal surgery to converge the baby towards it — something more common than people realize, as nobody wants to talk about it — yet another contentious, opinion-soaked issue I'm carefully avoiding. (But, anyway, the point is: Are you sure you're not a man, or a woman, primarily because a scalpel made you that way?)
What's the point of all this? It's that, even if you and everyone you know falls into none of the above categories — and, honestly, how many of us know for sure? — somewhere on the order of 1 in 1000 of us do. In the USA, that's enough people to populate Minneapolis or Colorado Springs. The entire populace of a medium-sized American city could be told by some court, "No, you're not the sex you always thought you were. Go marry someone of that sex you minutely resemble, and have always believed yourself to be, but that (according to us) you aren't."
If you back laws like Proposition 8, you're trying to put all such people into exactly the situation you say you're against — pushing them into marrying the same sex. In fact, you're doing something more extreme than that: You're saying they should be permitted to marry only the same sex.
Proto-Kudzu: The Olympics
These ironies have been seen before — i.e., we really should know better — because of sex-testing's unfortunate history during the 20th Century's Olympic Games. In the years and decades following the 1936 Berlin Summer Olympics, awareness grew of the strange, ultimately sad case of Dora Ratjen of Bremen, who'd been a women's high-jump competitor for Germany (eliminated in the finals), and then took gold for the German Reich at the September 1938 European Athletics Championships in Vienna.
A few days later, on an express train to Cologne, Magdeburg Police Detective Sergeant Sömmering, hearing a tip about a woman passenger who was actually a man, insisted on taking Dora to the police station for questioning as to whether she were a man. There, Dora hesitated, then said she was indeed a man, albeit one legally female who'd been raised female from birth. Dora was arrested on suspicion of fraud and her gold medal confiscated. Charges were later dropped as evidence emerged that neither Dora nor any of the athletic officials had been guilty of fraudulent intent, as there was no scheme for financial gain: Dora had been raised female in part because of somewhat non-standard genital anatomy, realizing she had male traits only at puberty, but then lead a lonely life of concealment, attempting to continue the only life she'd ever known.
The 1938 train ride changed that, as she was suddenly ruled male. Dora changed her name to Heinrich Ratjen, Jr., was a working man in Hanover for some years, and then lived out a quiet life running his parents' bar in Bremen. German and international sports authorities adjusted competition records, handling the matter quietly, as the Ratjen family had requested.
Public attention to the case was therefore very low until an extremely inaccurate short piece appeared in the Sept. 16, 1966 issue of Time magazine, breaking the story to English-speaking audiences: Time's uncredited author invented out of whole cloth a subsequently oft-repeated moralistic tale of former Olympic athlete Dora Ratjen having been unmasked in 1957 as "Hermann [sic] Ratjen", a waiter in Bremen, and then (supposedly) tearfully confessed having been forced by the Nazi authorities to compete as a woman "for the sake of the honor and glory of Germany". (I regret having repeated in early versions of this essay a variant of Time's baseless account, working from a BBC World News story that was likewise lead astray by the Time piece.)
In any event, following the (sensationalistic) 1960s retellings, Dora's story impelled the International Olympic Committee to attempt to fix the problem using physical exams, during preparations for the 1968 Mexico City Summer Games (after trying them on an experimental basis during the 1968 Grenoble Winter Games) — only to find that a significant minority of athletes had what one might call ambiguous parts. So, they tried switching to "buccal [i.e., cheek] smears" — testing cheek swabbings for the "Barr body" (aka "sex chromatin") in a cell nucleus that indicates an inactive X chromosome — which is what occurs with double-X. The IOC inferred — badly — that athletes without Barr bodies must be XY and thus male. Later, starting with the 1992 Albertville Winter Games, IOC switched to looking checking for the key "SRY" gene bloc on a Y chromosome (using a molecular polymerase chain reaction to amplify the gene sequence where present) — but not for that same gene bloc if attached to a non-standard chromosome — that codes for male traits. Both tests accidentally implicated innocent CAIS women with XY genes (female in all respects that should matter) and others as detailed above, whose genetic anomalies gave them no competitive advantage. In particular, in 1967, Polish sprinting champion Ewa Kłobukowska was disqualified, publicly humiliated, and stripped of her medals (and banned from professional sports!) for being (probably) XXY with XX mosaicism, on the basis of failing the Barr body test, as was Spain's hurdler Maria José Martínez Patino for being XY (CAIS) in the 1980s. Worse, during preparations for the 1968 Grenoble Winter Games, Austrian skier Erika Schinegger was genetically tested, determined to be XY, and disqualified. This was a great shock to all three women, who were raised female and had no reason to think otherwise. (Erika subsequently did have a sex change, having her previously unsuspected internal male genitals surgically uncovered, is now Erik, and became a father. Maria's competitive eligibility was reinstated. but only in 1988, long past her prime as a runner. Ewa retired, married, and gave birth to a son. Her medals were never returned, nor was she ever given an apology for the committee's error.)
For extra irony: CAIS (and 5-alpha-steroid reductase deficiency) women athletes are in fact about the only humans on earth of either sex who logically should be above suspicion: Unlike everyone else, those women's condition makes them uniquely unable to cheat by taking anabolic steroids to build muscle, because by definition their bodies simply don't respond at all to steroids (including testosterone), making them, actually, hyper-female — more female, in absolutely all ways that matter, than are regular XX women with normal androgen metabolism. And, worst of all: The SRY-bloc test failed to spot men with Congenital Adrenal Hyperplasia or androgen-producing tumors, who are XX but enjoy all the muscle advantages of maleness — or, likewise, men with Klinefelter's syndrome, or men with their SRY genes on non-standard chromosomes (or, even more problematically for testing, on no chromosomes at all).
The IOC wisely gave up after two more revelations: First, 1930s track and field Polish gold-medalist Stella Walsh (née Stanisława Walasiewiczówna) tragically died in a 1980 armed robbery: Autopsy showed some parts of both male and female genitalia, plus both XX and XY chromosomes (i.e., mosaicism). (Ironically, Walsh had accused 1936 Olympics competitor Helen Stephens of being male after Stephens edged out Walsh for the gold in the 100 meter dash. Stephens underwent a sex exam and passed.) Then, the 1996 Atlanta Summer Games furnished what was probably the final blow against IOC's testing program: Eight athletes were announced to have failed IOC's SRY-bloc test: To IOC's embarrassment, seven turned out to be androgen-insensitive XY women, and the eighth to have 5-alpha-steroid reductase deficiency — both of the classic conditions in which XY genes inherently confer absolutely no advantage in sports. All eight women were permitted to compete.
Sensing a no-win situation, IOC finally about-faced, starting June 1999 (effective starting at the 2000 Sydney Summer Games): There is no longer a mandate for sex testing (although Beijing's local 2008 Olympics committee is testing some female athletes at a local sex testing lab at Peking Union Medical College Hospital, i.e., those who have been challenged, without IOC imprimatur — and, in fact, against the advice of IOC's medical commission chairman).
(2012 update: IOC's Executive Board took another stab at the issue, using somewhat more rational criteria. Female athletes at the 2012 London Summer Olympics can be challenged to see if (1) their serum testosterone is elevated to the "male range", (2) that androgen elevation is "functional" (i.e., not CAIS women who have high serum testosterone but have zero effect from it), and (3) "confers a competitive advantage". Those criteria might work, even though the scientific assumption about testosterone being the factor that yields advantage is arguably doubtful.)
The Kudzu Vines Start Creeping: Legal Effects and Sex Changes
The dilemma of innocent Olympic athletes helps highlight one sort of problem with "marriage protection" laws, with which anyone can have sympathy — citizens with genetic anomalies but who aren't trying to game the system being shocked to have their marriages to what they thought was the opposite sex suddenly annulled (or prohibited). All available criteria suffer that fault:
- A judicial test defining sex by external genitalia will fail on citizens with ambiguous parts, of various descriptions.
- One that defines female as XX and male as XY will fail on any number of genetic anomalies.
- One that defines female as "having a womb" (or ovaries) will fail on men with Congenital Adrenal Hyperplasia or androgen-producing tumors, people with cellular mosaicism, women with MRKH, and others.
- One that defines male as "having testes" will fail on CAIS women, 5-alpha-steroid reductase deficiency women, and others.
- One that defines male as "having the SRY gene" will fail on CAIS women, on SRY-negative XX males, and others.
- One that defines male by hormone levels will fail on CAIS women and others.
- One that defines sex by fertility will fail on (obviously) the infertile and on women past menopause. (Do we really want to define the infertile as neuter and forbid them from marrying? I hope not.)3
- One that defines a person's sex as "whichever sex the obstetrician wrote on the birth certificate" will fail on people whose botched sex-assignment surgery is corrected later in life, on people with some of the developmental anomalies cited earlier, and on transsexuals and similar. (See below.)
There really are no workable tests. This isn't just a technical problem that hasn't been worked out: Remember, the best minds in the International Olympic Committee, aided by the world's top doctors and scientists, tried to solve it for 31 years, and gave up.
I mentioned first the plight of CAIS women trapped by dumb testing regimes partly because it's so easy to sympathize. By contrast, some readers will, for various reasons including socially conservative views, be less sympathetic towards people who voluntarily change sex — either fully via sexual reassignment surgery (SRS), or in sundry other ways taking on traits of the other sex. Again, I will not touch that contentious subject (where even the vocabulary is an ideological minefield), except to say that, approve or not, it happens, and creates situations with real-world legal effects — effects even more contrary to "marriage protection" proponents' intentions than the scenarios described earlier.
Consider a pre-operative transsexual XY male who wishes to marry an XX female, and end up living as two married women. The two first marry — which is lawful per the "marriage protection" law. Then, the male changes sex: Voila, same-sex marriage. (The law does not invalidate marriages automatically because of SRS — nor for more depressing reasons such as adultery or wife-beating. However, if it did, a male wanting to "game the system" could use measures to live as female short of full SRS. A female could do the reverse. If the state, by contrast, doesn't recognize SRS as changing one's legal sex, then marriage can lawfully occur either before or after surgery.)
This isn't mere speculation. Texas's "marriage protection" law is exactly what let two women, Jessica and Robin Wicks, one a male-to-female transsexual, win their marriage license in San Antonio, Texas: The women had been previously denied that marriage license as a same-sex couple, but successfully argued that the Texas 4th Court of Appeals's 1999 "Littleton v. Prange" decision (Littleton being a widow barred from suing over her husband's death from medical malfeasance, because she'd been born male and then had SRS) guaranteed them the right to marry, based upon their inferred chromosomes — because the judge ruled chromosomes rather than outward sex characteristics to govern which sex Jessica Wicks (né Grady Roland Wicks) is.
The Wicks newlyweds' attorney was quoted as saying he was encouraging other transsexuals to travel to San Antonio to get married. (Same-sex couples giving public thanks to a "marriage protection" statute and a socially conservative judicial district: the first of many "marriage protection" ironies to come.)
Around the same time, in New Hampshire, another two women, Judi and Mikayla Howden, were in a similar situation: Mikayla started out as Michael, married Judi, and then arrived at the painful decision that he was rightfully a woman and underwent SRS to become Mikayla. The result? A lawful same-sex marriage, despite — and, in fact, courtesy of — New Hampshire's ban on such things.
An article on the matter cannily points out:
[SRS] recognition lets existing, heterosexual marriages like the Howdens' become same-sex. Denying recognition permits new same-sex marriages - like one between Judi and Mikayla if they were to marry today - because the spouses' sexes differ only on paper, not visibly.
Oh dear, oh dear. "Marriage protection" statutes not only fail to ban same-sex marriage, but also furnish a legal blueprint for its mass-production.
So, What, Then?
To sum up, "marriage protection" statutes are already a debacle from the standpoint of their own advocates: Those laws spectacularly fail to advance their objectives — and are in fact a powerful tool for social conservatives' political and social enemies to create same sex marriages that were impossible without them. That effect can only get worse, over time. The only thing they're particularly good for is breaking up real, existing marriages of those unlucky enough to fail an inevitably arbitrary and unrealistic legal test of one's sexual identity: None of those "Which sex are you?" tests proposed, tried, or likely to emerge fixes the problem.
This honestly isn't supposed to be an advocacy piece, so: Maybe being choked by kudzu is appealing. It's (famously) hardy, is a lovely shade of green, has delicious edible roots that can be cooked and eaten like potatoes, and has quite pretty purple flowers.
On the other hand, if you, our voters and legislatures, decide you'd rather not be blanketed by kudzu, then y'all should consider ceasing to plant it. Just a thought.
Nov. 5, 2008 addendum: After a furious electoral battle, whose $40M "yes" campaign was funded mostly by the $30M+ of out-of-state Mormon (1, 2, 3) and, to a lesser extent, Scientology, church interests, California's Proposition 8 passed by a very narrow margin. I trust that the irony of Mormons lobbying to limit marriage to "one man and one woman" will be lost on no one (even if the concept of "traditional marriage" didn't have numerous ironies including counter-examples within the Christian faith's most devout segments).
June 17, 2011 addendum: An increasing number of Federal judges are now ruling the 1996 nationwide "Defense of Marriage Act", of which Proposition 8 was a direct copy, to be unconstitutional on equal-protection grounds, such as this week's decision by 20 judges of the U.S. Bankruptcy Court for the Central District of California, refusing to dismiss as contrary to DOMA a bankruptcy petition from one of the 22,000 same-sex couples married in California prior to Proposition 8's passage — underlining the point that marriage has no necessary connection to reproduction and child-rearing in the first place, and is discrimination lacking the "rational basis" required (among other things) if discrimination is claimed to be lawful.
Failure to meet the rock-bottom "rational basis" standard was one of the many reasons why veteran conservative George W. Bush-appointed Federal District Court judge Vaughn R. Walker threw out Proposition 8 in its entirety in landmark decision Perry v. Schwarzenegger, which devastatingly eviscerated proponents' arguments (and should be read by anyone interested in this issue, as his writing is clear and novice-accessible). Judge Walker's decision for the US District Court for the Northern District of California was (initially) stayed pending appeal. Critically, California's officials declined to appeal Walker's decision, so the ballot initiative's proponents appealed in their place, as 'intervenor-defendants'.
Feb. 7, 2012 addendum: A three-judge panel at the Ninth Circuit upheld Walker's decision on slightly different (narrower) grounds than the ones Walker himself applied. (The case had been redubbed Perry v. Brown, at this point, reflecting changeover in the Governor's office.) Proponents' request to appeal that decision to be reheard by all of the justices en-banc was denied, so proponents attempted appeal to the US Supreme Court.
June 26, 2013 addendum: In 2012, the US Supreme Court agreed to review the case (re-dubbed once again as Hollingworth v. Perry), and on June 26, 2013 disposed of the case by ruling that the whole case was invalid because Prop. 8's supporters had lacked legal standing to defend the case at all, and remanding the decision back to the Ninth Circuit with instructions that proponents' appeal to the Ninth Circuit be dismissed. Consequently, Judge Walker's District Court decision voiding Prop. 8 will stand. Additional litigation may occur to settle whether Walker's decision applies to everyone or just the two couples who sued (because it resulted in an injunction), but that is likely to be swept aside by the governor and county clerks treating Prop. 8 as dead. (DOMA's prohibition of Federal recognition for same-sex marriages was also finally voided, in a companion decision on equal-protection grounds, and holding that the Federal government has no business interfering with states' laws protecting the fundamental rights of citizens.)
June 28, 2013: The Ninth Circuit having moved swiftly to vacate its stay of Justice Walker's decision, there are happy couples getting married again.
Copyright (C) 2008-2017 Rick Moen, <firstname.lastname@example.org>. Reprint rights will be gladly granted, but please ask, so I can know where this work appears.
1 Note: Sex, not "gender". The latter term properly refers to psychological and cultural categories, never to biological ones: Masculine / feminine are examples of gender roles; by contrast, male / female are sex categories. Thus, semi-literate expressions like "same-gender marriage" and "gender testing" are meaningless — except perhaps in reference to such things as who's wearing trousers.
In the 2010s, many people appear to have started using the word "gender" to mean "what sex (if any) you identify as". It would be convenient if such a word existed in English. (After all, how we're plumbed, i.e., our sexes, is a personal matter relevant only to those closest to us, and our doctors.) A language shift to create one may thus be underway. However, borrowing "gender" for that purpose does have the drawback, for now, of creating confusion given the word's established meaning.
2 Much thanks to Dr. David Marjanović of Leibniz Institute for Research on Evolution and Biodiversity, Berlin, for helping me get the embryological details about Müllerian and Wolffian ducts right. Any remaining inaccuracy is entirely mine. I try to be careful, but, after all, am writing outside my field: Corrections are always warmly welcomed.
3 As a point of personal interest, yr. humble author was adopted in infancy and raised by a couple unable to conceive. Also, yr. humble author is himself lately reproductively sterile on account of medical reasons. So, he might be forgiven for objecting to the notion of both his own and his parents' marriages being disallowable on fertility grounds, along with countless others.