When you pop out? That would be birth, but it's defined based on conception. I don't know enough biology of early development to know whether there's actually a problem, but what I liked about the definition was how airtight it is, if there's any holes I want to know. Using birth instead of conception might have been better.
There's not an issue. Sex is determined at conception. Just because you can't physically observe the genitals until later development doesn't mean it isn't. Observation doesn't define reality, reality is only observed. Sometimes technology doesn't allow observation until a later point, but the reality is still determined at conception.
Think of it this way: Just because you can't tell through a blood test or ultrasound whether a fetus is male or female until later in the pregnancy, doesn't change that they already are either male or female and have been since conception. You just don't know yet due to technological limitations.
The original complaint is also retarded because it falls for the "everyone starts out as female" nonsense, which is not correct. Fetuses do not start out with a vulva and then one remains a vulva and the other differs into a penis.
They start out with undeveloped genitalia which are undifferentiated up until 6 weeks or so. They look the same but this doesn't mean they're both female. They're just too undeveloped to tell the sex.
The sex becomes observable once the external differentiation occurs.
If there is a Y chromosome with a functioning SRY gene, these undifferentiated genitalia develop into a penis and testes.
Otherwise, in XX females they develop into a vulva, uterus, ovaries, etc.
The fact that development happens and genitalia don't differentiate until 6 weeks of gestation doesn't change the fact that sex is established at conception.
It just means that sex isn't observable until the differentiation occurs.
This definition also handles intersex conditions which may be misobserved due to ambiguous genitalia at birth. If sex was determined at birth, and is not changeable as stated by the law, these people would be stuck as the wrong sex on legal documentation for life.
Take, for example, the case of XY males without a functioning SRY gene (an intersex condition called swyer syndrome). They wouldn't be classed as female by the way the EO is written (even though they may be mistaken as such at birth due to not developing a penis and developing some female structures like a small uterus) because they never develop ovaries.
Because they're not female. They are XY males. Which is determined at conception.
This wording also covers another concept we see in Swyer syndrome which is that they don't have testes either. They don't have eggs (large gametes) or sperm (small gametes) because their gonads never properly develop due to lack of functional SRY gene, and not being female.
But by this EO they are still male, as they're XY, and with a functioning SRY gene would have developed the ability to produce small gametes. Thus they are legally sexed correctly.
This EO also covers the "what about post-menopausal women, women who have a hysterectomy, women who are infertile" that TRAs whine about because the sex is classed as "The sex that produces large gametes" which is, again, determined at conception and thus infertility, current egg stock, developmental abnormalities of genitalia does not factor in or matter.
In 99% of cases, this will be observed correctly at birth. The EO thus doesn't require expensive testing to determine sex if it's obvious, which in most cases it is.
But sex is not determined at birth. Only observed. If it's ambiguous, then genetic testing and/or evaluating what gonads they have will quickly clarify.
It sidesteps a lot of the TRA arguments completely, and concisely.
