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So define it as non-binary but still based on genetics, if that's your argument. Or just M, F, and O for Other if you want to keep things simple.

You could literally list their chromosome combinations to make it clear. XX, XY, XXY, whatever.

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But XY without a copy of sex determining region Y is (typically, there may be some other variation) female in phenotype, not a male (conversely, XX with SRY, resulting from the same crossover in sex cell formation, is male phenotype, not female.) Biological sex isn't binary, and it's also not as simple as chromosome combinations.

In which case perhaps the proposed legislation is actually pretty good about how to identify sex... look at the genitalia, and only follow up with the genetics if that's ambiguous. The proposed legislation looks better in light of this, not worse. It proposes to identify by phenotype rather than genotype (although ultimately by genotype of specific genes that result in different genitalia), which is a practical way of categorizing people by the genes (most of) society actually cares about in this case.

But people can have one body with multiple chromosome combinations. As soon as we start admitting that there needs to be an "other" category, we're admitting that the categorisation we currently have is at the very least, inadequate.

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