The Executive Order [wikipedia.org] ("a directive by the president of the United States that manages operations of the federal government") dated January 20, 2025 with the title DEFENDING WOMEN FROM GENDER IDEOLOGY EXTREMISM AND RESTORING BIOLOGICAL TRUTH TO THE FEDERAL GOVERNMENT [whitehouse.gov] contains the following text:
Policy and Definitions. It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.
(d) “Female” means a person belonging, at conception, to the sex that produces the large reproductive cell.
(e) “Male” means a person belonging, at conception, to the sex that produces the small reproductive cell.
However, this 10-year old Scientific American article appears to describe a more nuanced definition of biological sex (and I mean sex, not gender). I recommend reading the whole article, which says it was first published February 18th, 2015. It describes intersex, or Disorders of Sex Development (DSDs) and provides evidence to support the argument that biological sex is closer to being describable as spectrum than a binary attribute:
Scientific American: October 22, 2018 - Sex Redefined: The Idea of 2 Sexes Is Overly Simplistic; Biologists now think there is a larger spectrum than just binary female and male
Although some governments are moving in this direction, Greenberg is pessimistic about the prospects of realizing this dream—in the United States, at least. “I think to get rid of gender markers altogether or to allow a third, indeterminate marker, is going to be difficult.”
So if the law requires that a person is male or female, should that sex be assigned by anatomy, hormones, cells or chromosomes, and what should be done if they clash? “My feeling is that since there is not one biological parameter that takes over every other parameter, at the end of the day, gender identity seems to be the most reasonable parameter,” says Vilain. In other words, if you want to know whether someone is male or female, it may be best just to ask.
Some people (such as people with Complete androgen insensitivity syndrome (CAIS)) can have an outward appearance of one 'traditional' sex, but genetically, be another; some people lack the ability to produce reproductive cells, so their status at conception would be unclear. About 50% of people with with Klinefelter syndrome [wikipedia.org] are infertile. (Klinefelter syndrom is a result of someone having three sex chromosomes: XXY).
As far as I am concerned, administrative recording (where necessary) of biological sex should acknowledge the unusual/edge cases, but other people will likely have other views. What do you think?