Well, not everyone HAS a “biological sex recognized at birth.” This claim is science denial at work. Experts estimate that up to 1.7 percent of the population are born with intersex traits, which can mean anatomy, reproductive organs, hormone patterns, and/or chromosomal patterns that do not fit binary notions of “male” or “female.” They’re somewhere in between. 1.7% of the population is about the same amount as people who have red hair. Do you know a redhead? Then you likely know a person with intersex traits, whether they’re aware of it themselves or not (have you seen your own chromosomes? I haven’t.)

Burke is arguing here for federally sanctioning discrimination against people who cannot help their chromosomal, physical, and hormonal makeup. This isn’t a new thing. The conventional wisdom, if the characteristics of being intersex are noticed at birth, is to leave the person alone until they’re old enough to know how they identify, then allow them to live as they wish. As recently as the 1960’s, these people were called “hermaphrodites”, and doctors would simply assign them a sex at birth and perform a surgery to match their genitals to the sex chosen, then their parents would raise them accordingly. Since penises were harder to manufacture or surgically engineer, most infants with intersex characteristics were simply made as feminine as possible and then raised as biological girls. This, as you can imagine, screwed people up. Here’s some history on that. (Or you can look up David Reimer.)

Full contextual analysis of Section 3.2: Department of Education here.