The Absurdity of Adding Biological Sex on ATF Forms.

This article was made by Netanya Weinberger. You can talk with her on our Discord!

Selecting Biological Sex on ATF Forms, as proposed, is a blatant overreach of state power, ATF mission creep, a waste of resources, gross negligence of scientific consensus on biology, and a violation of established case law. For these reasons, and more, this proposal must be summarily rejected as it is not a legitimate, necessary, or productive regulatory action.

Most obviously, why is it the business of the ATF what sex a gun owner was assigned at birth? What benefit does that actually confer onto public safety? The mission statement of the ATF is “… protects American communities from violent crime driven by the illegal use of firearms, explosives, and acts of arson”, how does the enforced collection of sex assigned at birth contribute to that goal? Congress authorizes the ATF to have the authority to determine whether or not someone is prohibited from possessing firearms, not to adjudicate the validity of one’s sex. 

Section III, subsection A claims “There are no changes to ATF standards or compliance requirements; therefore, ATF anticipates no costs or benefits accruing from this proposed rule.” However, providing incorrect information on ATF forms brings penalties of perjury, according to 27 CFR 479.21(a). The enforcement of this regulation would obviously necessitate some amount of spending by its very nature of making an action illegal. Whatever little that spending may be, this regulation gives zero benefit to the American people and is not in pursuance of the mission statement. Furthermore, given that this regulation cannot possibly be costless, it is in direct violation of Executive Orders 12866 and 13563. The proposal necessarily imposes implementation costs, including revisions to federal forms, training, compliance guidance, and enforcement actions. Yet the proposed rule concludes that it creates neither costs nor benefits while offering little explanation for how the new disclosure requirement advances the agency’s mission. Expanding the prosecution of perjury is in violation of Executive Order 14294. The ATF cannot pick and choose which executive orders it intends to follow, doubly so if it is using an executive order as sole justification for this regulation. Historically, Form 4473 requested an applicant’s sex as one identifying characteristic among many. The proposed rule goes further by requiring disclosure of biological sex assigned at birth, or potentially face felony charges. The ATF has not explained why the previous information became insufficient, nor has it identified any investigative failures attributable to the existing form. Expanding the scope of information collected absent a demonstrated regulatory need illustrates the gradual expansion of administrative authority beyond the agency’s core mission. 

Individuals with differences of sex development (DSDs), sometimes referred to collectively as intersex conditions, demonstrate that biological development does not always fit neatly within binary classifications. By failing to acknowledge these medically recognized exceptions or provide guidance for affected individuals, the proposal substitutes administrative simplicity for biological accuracy. Approximately 5,000,000 Americans are intersex at birth, not fully congruent with the binary biological sex that this regulation claims as fact. Even if the conservative estimate of true intersex individuals pushed by conservative advocacy groups is used, that is still approximately 60,000 Americans. 60,000 law-abiding American citizens who would be committing perjury if they attempt to exercise their Second Amendment right. That’s not to mention the obvious intention of this executive order is to disrupt the 2,800,000 Americans who are transgender, and intentionally do not identify with their sex assigned at birth. For exactly zero public safety benefit, this executive order intentionally deprives at a minimum 2,860,000 innocent Americans of their constitutional rights. Aside from the fact that all states except Ohio and Tennessee allow individuals to change their gender marker on their birth certificate, making this regulation at best functionally unenforceable without gross intrusion into an individual’s privacy.

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) reaffirmed that federal courts, not administrative agencies, have the final responsibility for interpreting statutes. Agencies may not rely on broad judicial deference when expanding their authority into areas Congress has not clearly addressed. Bostock v. Clayton County, 590 U.S. 644 (2020) held that discrimination against transgender individuals constitutes discrimination “because of sex” under Title VII of the Civil Rights Act. Although the decision concerned employment discrimination rather than firearms regulation, it demonstrates that policies directed at transgender individuals necessarily involve classifications based on sex. The ATF cannot plausibly argue that this proposal is unrelated to sex-based classifications when its entire purpose is to require individuals to report their sex assigned at birth. If the ATF wishes to require millions of Americans to disclose additional personal information under penalty of perjury, it should bear the burden of demonstrating a clear statutory basis and a genuine public-safety need. The proposed rule does neither. New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022) held that the government bears the burden of justifying firearm regulation in comparison to historical precedent. Restricting an individual’s access to firearms because of how they identify has no historical analogue, nor has the ATF demonstrated why this is necessary to determine firearm eligibility. Department of Commerce v. New York, 588 U.S. 752 (2019) held that federal agencies must provide genuine, reasoned explanations for their actions, including instituting new regulations. The ATF has failed to give any explanation except for congruence with a single executive order. Collectively, these decisions reflect a judiciary increasingly skeptical of agencies expanding their authority without clear statutory authorization or demonstrable necessity. Overall, the ATF has not sufficiently justified this regulation as necessary, and it should be rejected on a legal basis.

The core issue with this regulation is not whether biological sex exists or whether Congress could authorize such a requirement on forms if it chose to do so. The issue is whether the ATF has demonstrated that requiring disclosure of one’s sex assigned at birth confers any legitimate public safety benefit, and it has not. Until the ATF can identify the necessity and a clear statutory authority for this regulation, the proposal should be wholly rejected.