Let's debunk what this judge has to say, shall we? References below.
The judge's argument is that the executive order defining the sexes is incorrect because there are more chromosome combinations outside of XX or XY and other types of genetic variations.
"Someone who does not have just XX or XY chromosomes is not just male or female."
This conflates chromosomes, the mechanisms that hold the genes that determine our sex, with sex itself.
Sex is defined by the organization of our anatomy around either gamete type (sperm or eggs) [1], and it is determined by genes on our chromosomes [2]. There are rare chromosomal disorders that result in atypical chromosome combinations, but these combinations still result in male or female development due to genetics [3][4].
For example, an embryo with 47:XXY develops anatomy organized around sperm production due to the SRY gene on the Y chromosome. They can have smaller testes, low testosterone, and learning disorders [5][6][7].
An embryo with 45:X develops anatomy organized around egg production due to female genetic networks like WNT4 and FOXL2 being upregulated thanks to no SRY gene. They develop an entire female reproductive system, with ovaries that then experience premature ovarian failure due to missing a second X. They can have cardiac defects and learning disorders [8][9].
"We have people with XXX chromosomes."
Yes, and those people are female. They develop anatomy organized around eggs and are usually fertile [10].
"We have androgen insensitivity, XY genetically, that may have external sex characteristics and internally have testes."
Yes, this is called Complete Androgen Insensitivity Syndrome, a disorder in a 46:XY embryo that results in a male unable to respond to any testosterone. So while testosterone is produced by the internal testes, they cannot respond to it, so they develop female-typical external anatomy and physiology that is fixed, unable to experience any male development aside from internal testes [11][12]. They are accommodated under the ADA according to the EO.
"There's a five alpha reductase deficiency that causes changes in testosterone metabolism."
This results in a 46:XY fetus who lacks dihydrotestosterone (DHT), the hormone required to develop the male's *external* genitalia, resulting in underdeveloped external genitalia. Males with this condition develop functional testes and can respond just fine to testosterone, so they experience male puberty and often masculinize further. They are male because they develop anatomy organized around sperm. They just have underdeveloped external genitalia [13][14].
"I'm telling you right now that there are people who are neither male or female."
As we learned above, all of the judge's examples are males or females who have developmental disorders that impact their gonads, genitalia, or hormone production or reception. They are not "neither sex." Understanding their sex is essential for treating their condition.
In sum, there are only two sexes, along with rare developmental disorders that impact the two sexes, and the judge has no clue what she is talking about.
References:
[1] Lehtonen, J., Parker, G. (2014). Gamete competition, gamete limitation, and the evolution of two sexes. Molecular Human Reproduction, 20(12).
[2] Eggers, S., Sinclair, A. (2012). Mammalian sex determination--insights from humans and mice. Chromosome Res, 20.
[3] Witchel, S. (2017). Disorders of sex development. Best Practice and Research in Clinical Obstetrics and Gynaecology, 48, 90-102.
[4] Rey, R., Josso, N., Racine, C. (2020). Sexual differentiation. In--Endotext. South Dartmouth, MDText, Inc.
[5] Nieschlag, E., et al. (2016). The Klinefelter syndrome, current management and research challenges. Andrology, 4, 545-549.
[6] Turriff, A., et al. (2017). The Impact of Living with Klinefelter Syndrome. Journal of Genetic Counseling, 26(4).
[7] Van Rijn, S., Swaab, H. (2019). Emotion regulation in adults with Klinefelter syndrome (47,XXY), neurocognitive underpinnings and associations with mental health problems. Journal of Clinical Psychology, 76, 228-238.
[8] Bondy, C. (2007). Care of Girls and Women with Turner Syndrome. Journal of Clinical Endocrinology & Metabolism, 92(1), 10-25.
[9] NIH. (2020). Turner Syndrome. Genetics Home Reference, National Library of Medicine.
[10] NIH. (2020). Triple X syndrome. Genetics Home Reference, National Library of Medicine.
[11] Oakes, M., et al. (2008). Complete androgen insensitivity syndrome--a review. Journal of Pediatric and Adolescent Gynecology, 21(6).
[12] Gottlieb, B., et al. (2017). Androgen Insensitivity Syndrome, Gene Reviews (NIH).
[13] Kumar, G., Meca-Barboza, J. (2020). 5 Alpha Reductase Deficiency. StatPearls Publishing.
[14] Randall, V. (1994). Role of 5-ARD in health and disease. B Clinical Endocrinology & Metabolism, 8(2).