Disclosure of biological sex may impact individual privacy

Human identification by forensic DNA profiling primarily relies on the analysis of short tandem repeat markers (STRs) and Amelogenin or other sex determining markers. The resultant DNA profiles can be compared directly between evidence and reference samples or indirectly (i.e., kinship) between human remains and family reference samples. Although Amelogenin serves as a phenotypic marker for biological sex, it is often considered innocuous, and the biological sex derived from this marker is routinely reported and/or uploaded to national DNA databases. However, biological sex does not necessarily align with gender identity, and chromosomal anomalies may affect the presentation of biological sex. Biological sex is genetically determined and assigned at birth based on anatomical features, whereas gender identity is an individual expression that may change over time and may not correspond with biological sex. This paper highlights how the differences between biological sex and gender identity can potentially impinge on individual privacy. Beyond gender differences, genetic anomalies related to the presentation of biological sex can occur, and the consequences of revealing such anomalies may have far-reaching implications for the individuals involved. Disclosing biological sex in a forensic DNA profile does not take into account the ramifications for persons or their families with genetic anomalies related to sex chromosomes (which may or may not be known to the individual), transgender transformations (which may or may not have been disclosed by the individual), or gender-identity expressions that do not correspond with biological sex. Through the presentation of case scenarios, while knowledge of biological sex may be important for operational forensic DNA laboratories and critical in certain cases, it is often not relevant to criminal investigations, courtroom deliberations, or public disclosure. It behoves all of us to understand that the dissemination of biological sex data in the public domain, especially in contexts where disclosure is unnecessary, may impact individual privacy. In light of the current understanding and growing impact of gender identity, it is recommended with all due speed that (1) 'biological sex' and 'gender' be recognised as separate concepts, not to be used synonymously nor interchangeably; (2) definitions of a DNA profile be reviewed and more clarity added; and (3) policies and protocols be developed to restrict such information from reports and court proceedings (i.e., public arenas), when not relevant, thereby reducing unwarranted intrusions into individual privacy and acknowledging the right to keep biological sex private and control how and when this personal information is shared.