What Does “Biological Sex” Mean Under HB 249 — And Who Gets to Determine It?

Ohio House Bill 249 builds its most controversial provision on a single definition. The bill restricts “adult cabaret performances” that feature performers who “exhibit a gender identity that is different from the performer’s or entertainer’s biological sex.” Everything in that restriction hinges on being able to identify a person’s biological sex and then compare it to their gender expression.

The bill provides a definition of “biological sex.” That definition is where the legal and scientific problems begin — and where the question of who actually gets to make the determination becomes impossible to answer cleanly.

As of April 4, 2026, HB 249 has passed the Ohio House by a 63–32 vote and now sits in the Ohio Senate. It has not been signed into law. Everything in this article describes the bill as passed by the House.

The Bill’s Exact Definition of “Biological Sex”

The bill defines “biological sex” to mean:

“the biological indication of male and female, including sex chromosomes, naturally occurring sex hormones, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.”

This definition is not new to Ohio law. The same language appears in Ohio Revised Code § 9.05, which states: “Sex means the biological indication of male and female, including sex chromosomes, naturally occurring sex hormones, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.” That provision also states that “it is the policy of the state of Ohio to recognize two sexes, male and female” and that “these sexes are not changeable and are grounded in fundamental and incontrovertible reality.”

HB 249 imports that definition directly into its adult cabaret performance offense. So the definition is legally settled in Ohio — for now. What is not settled is how it applies in practice, what it fails to capture scientifically, and who makes the determination when enforcement actually happens.

Breaking Down the Five Components — And What Each One Cannot Do

The definition lists five biological markers: sex chromosomes, naturally occurring sex hormones, gonads, nonambiguous internal genitalia, and nonambiguous external genitalia. Each of these is a real biological characteristic. Each of them also has significant limitations when used as a legal enforcement standard.

1. Sex Chromosomes

The standard biological model assigns XX chromosomes to females and XY chromosomes to males. The bill’s definition relies on this framework.

The scientific problem is that chromosomal variation is far more common than most people realize. People who are intersex may have a mix of chromosomes, such as XXY, or may have some cells that are XX and some cells that are XY, or may have just one X chromosome. It is estimated that up to 1.7 percent of the population has an intersex trait.

The legal problem is more fundamental: chromosomes are invisible. No police officer, no prosecutor, no jury looking at a performer on stage can observe someone’s chromosomes. Chromosomal testing requires a laboratory procedure — a blood test or cheek swab analyzed by a genetics specialist. No enforcement mechanism in HB 249 requires or enables such testing. No provision of the bill tells an officer how to determine chromosomal sex before making an enforcement decision.

2. Naturally Occurring Sex Hormones

The definition specifies “naturally occurring” sex hormones — language that creates immediate complications for anyone who has undergone hormone therapy as part of gender transition.

A transgender woman who has been on estrogen therapy for years no longer has testosterone levels consistent with her chromosomal sex. Her naturally occurring hormone levels — meaning the levels her body now produces without exogenous intervention — may be entirely consistent with female hormone ranges. Whether her post-transition hormone levels count as her “naturally occurring” sex hormones for purposes of this definition is a question the bill does not answer.

Beyond transition-related hormone changes, hormone levels vary enormously among cisgender people for reasons entirely unrelated to gender identity. Medical conditions, age, medications, and individual biological variation all affect hormone levels. Using hormone levels as a legal marker of biological sex would require medical testing that HB 249 provides no mechanism for conducting.

3. Gonads

Gonads — testes and ovaries — are internal organs. They are not observable by a police officer making a street-level enforcement decision. For transgender people who have undergone gender-affirming surgery, the gonadal picture is further complicated: the definition specifies gonads as a marker but provides no guidance on how to classify someone whose gonadal anatomy has been surgically altered.

4. Nonambiguous Internal Genitalia

The definition specifies “nonambiguous” internal genitalia. The word “nonambiguous” does significant work here — it is an implicit acknowledgment that some people have genitalia that does not fit neatly into the binary the definition assumes. Infants with Complete or Partial Androgen Insensitivity Syndrome may present with externally female genitalia, internally male gonads, XY chromosomes, and an inability to produce testosterone. The definition does not explain how it will classify people with ambiguous genitalia and sex characteristics.

For these individuals — and for anyone whose internal anatomy cannot be observed — internal genitalia provides no workable enforcement standard.

5. Nonambiguous External Genitalia

External genitalia is the only marker on the list that is potentially observable — and it is still, in most public contexts, not actually observed. People performing at a Pride festival, reading at a library event, or attending a community gathering are clothed. Their external genitalia are not visible. HB 249 provides no mechanism for determining external genitalia short of a search — and conducting a strip search or genital inspection to determine whether a performer’s gender expression matches their biological sex would raise profound Fourth Amendment concerns entirely separate from the bill’s First Amendment problems.

The Internal Contradiction at the Heart of the Definition

Here is the core problem that no coverage of HB 249 has addressed directly:

The bill’s definition of biological sex lists five markers — chromosomes, hormones, gonads, internal genitalia, and external genitalia. Four of those five markers are medically invisible at the street level. The fifth is generally concealed by clothing in any public context where this law would be enforced.

Yet the enforcement mechanism necessarily operates through visual observation. An officer at a community event, a Pride parade, or a library reading is not looking at chromosomes. They are looking at clothing, makeup, hair, body shape, and mannerisms. They are making a visual assessment of whether a performer’s presentation matches or differs from what the officer perceives as that person’s biological sex.

The ACLU of Ohio identified this directly: the language in HB 249 about “a gender identity that is different from the performers or entertainer’s biological sex” could be taken a thousand different ways by a thousand different people. An enforcing party such as a police officer may decide that the pants on a cisgender woman playing guitar in the park are a little too masculine and arrest them under this law.

The ACLU’s point cuts precisely to the contradiction. The definition attempts to ground the law in objective biology — chromosomes, hormones, gonads. But the enforcement reality grounds it in subjective visual perception — because chromosomes, hormones, and gonads are not observable at the point of enforcement. The gap between the definition and the enforcement mechanism is where the legal danger lives.

What the Officer on the Street Is Actually Using

When a police officer observes a performer and decides whether their gender expression differs from their biological sex, they are not conducting a chromosomal analysis. They are not measuring hormone levels. They are not examining gonads or genitalia.

They are looking at the performer. They are assessing clothing, makeup, prosthetics, voice, mannerisms, and overall presentation. They are comparing that visual impression to their own understanding of what a person of a given sex is supposed to look like.

That comparison is not biological assessment. It is visual gender profiling — a determination based on whether the observer perceives the performer as sufficiently conforming to the gender norms associated with the observer’s assumption of the performer’s sex.

The ACLU has described this power dynamic precisely: the issue with HB 249 is that the language is left vague on purpose, so that the discernment between what is “masculine” and “feminine” can be made by the outside observer. This shifts power from the individual to the observer to decide how that individual’s identity should be expressed.

The bill’s biological sex definition gives the appearance of scientific precision while the enforcement mechanism relies on visual perception. That gap is not a drafting oversight. It is the operational reality of any law that attempts to regulate gender expression at the street level.

The Intersex Population: Whom the Definition Cannot Classify

The definition’s reliance on a strict binary creates a legally unresolved category: intersex people, whose biological characteristics do not fit neatly into male or female.

The intersex community includes people born with a mix of chromosomes, such as XXY, as well as people whose cells contain both XX and XY chromosomes, and people with just one X chromosome. Estimates suggest up to 1.7 percent of the population has an intersex trait, making it roughly as common as having red hair.

For an intersex person charged under HB 249’s adult cabaret performance provision, a fundamental threshold question arises before any other element of the offense can be analyzed: what is this person’s biological sex under the bill’s definition? If their sex chromosomes are XXY, are they male or female? If their external genitalia are ambiguous, which category applies? If their hormone levels fall between typical male and female ranges, how does the bill classify them?

The definition does not answer these questions. It defines biological sex as “the biological indication of male and female” — a circular formulation that assumes the binary it is supposed to establish. For anyone whose biology does not fit that binary, the definition provides no classification and no guidance.

Ohio’s Capital Journal has noted that the biological sex definition in Ohio law, on which HB 249’s definition is modeled, does not explain how it classifies people with ambiguous genitalia and sex characteristics, and that applying it to intersex people creates serious unresolved legal questions.

The Post-Transition Question: Whose Biological Sex Is It?

For transgender people who have undergone medical transition — hormone therapy, gender-affirming surgery, or both — the bill’s definition creates a different set of unresolved questions.

A transgender woman who has lived as a woman for years, whose external appearance is entirely feminine, who has undergone hormone therapy and potentially surgery, presents a profile where every observable characteristic aligns with female sex. Her chromosomes remain XY. Her pre-transition gonads may have been surgically removed. Her hormone levels, if she remains on hormone therapy, are consistent with female ranges — though the definition specifies “naturally occurring” hormones, which creates the question of whether pharmaceutical hormone levels count.

Under the bill’s definition, her biological sex is male — because the definition explicitly excludes “an individual’s psychological, chosen, or subjective experience of gender” and relies on biological markers that, for her, remain chromosomally male.

Under any visual assessment an officer can make on the street, she presents as female. The enforcement mechanism and the definition point in opposite directions. There is no provision in HB 249 that bridges this gap or tells an officer, a prosecutor, or a court which governs.

What Supporters Say the Definition Accomplishes

The bill’s supporters and the Center for Christian Virtue have a clear answer to these concerns: the definition provides legal certainty by grounding sex in biology rather than self-identification, and it ensures that the law reflects objective reality rather than subjective gender experience.

The Center for Christian Virtue has described the bill as providing a clear, biological definition of private areas and biological sex, arguing that vague legal definitions have previously allowed activists to prioritize ideology over basic rights.

From the supporters’ perspective, the chromosomal and biological definition is precisely the point: it ensures that a transgender woman who was born male is classified as male for purposes of this law, regardless of transition status. That is not a drafting problem from their viewpoint — it is the intended outcome.

The disagreement between supporters and critics is therefore not about what the definition means. Both sides agree on what it means. The disagreement is about whether a definition that classifies people according to birth biology — and then restricts their public expression based on that classification — is constitutionally permissible and practically enforceable.

The Enforcement Gap: Who Actually Decides

Given the gap between the definition’s biological markers and the visual assessment that enforcement necessarily relies on, the practical answer to “who determines biological sex under HB 249” is the same answer that emerged in our analysis of the undefined word “performance”: whoever is making the decision at that moment in the enforcement chain.

The officer on the street decides based on visual assessment. The prosecutor decides based on the evidence available — which, absent genetic testing, is also primarily visual. The jury decides based on what they observe in court and what witnesses describe. None of these decision-makers has access to the biological markers the definition lists. All of them are working from appearance.

The ACLU of Ohio’s opponent testimony captured this directly: the interpretations and applications of these terms are left entirely to the police officer who cites or arrests the suspect and the prosecutor who charges them.

The biological sex definition creates the illusion of scientific objectivity while the enforcement mechanism operates through subjective visual assessment. That gap — between what the definition says and what enforcement actually requires — is the legal vulnerability at the center of HB 249’s adult cabaret performance provision.

What This Means for People the Law Affects

For transgender Ohioans, the practical implication is that their biological sex under this law is determined by their birth biology regardless of any transition, any medical procedure, any legal name or gender marker change, or any external presentation. If they perform in any context that could be characterized as a covered performance, in any location where a minor may be present, and if that performance is deemed harmful to juveniles or obscene, their birth-assigned sex is the reference point — not how they look, not how they live, not what their legal documents say.

For intersex Ohioans, the law provides no classification at all. Their biological sex under the bill’s definition is legally indeterminate, which means they could theoretically be charged without any clear answer to the threshold question of what sex they are being compared against.

For cisgender performers — including female actors playing male roles, male actors in feminine costume, gender-nonconforming people of any description — the enforcement reality is that the determination is made visually by whoever observes them, using the bill’s biological sex definition as a framework that cannot actually be applied without medical testing that the bill provides no mechanism for conducting.

If you are any of these people, and if HB 249 becomes law, the appropriate step before performing publicly in Ohio is consulting a licensed Ohio criminal defense attorney about how the bill’s provisions apply to your specific situation.

By AllAboutLawyer.com | Updated April 4, 2026

Also on AllAboutLawyer.com:

• Who Decides If Something Is a “Performance” Under Ohio HB 249?
• Does Ohio HB 249 Criminalize Being Transgender in Public?
• The Xenia YMCA Case That Started It All: What Actually Happened

Legal Disclaimer: This article is for general informational and educational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. HB 249 has not been signed into law as of the date of this article. The scientific and legal analysis presented here reflects publicly available sources and does not constitute a prediction of how any court will apply the bill’s provisions to any specific set of facts. If you have questions about how this or any other law may affect your specific situation, consult a licensed Ohio attorney in your jurisdiction.