Sex, Gender and the Law / What is a woman?
Recently Senator Marsha Blackburn of Tennessee asked Supreme Court Justice Nominee Ketanji Brown Jackson “Can you provide a definition for the word ‘woman’?”
Judge Jackson responded by saying no, she could not provide a definition for the word in “this context” because she isn’t a biologist.
The moment went viral and it sparked a huge debate between those who thought she was avoiding the question and those who thought she answered it perfectly fine. Judge Jackson was asked about this later by other Senators, such as Ted Cruz who called her on not being able to define the word, to which she replied “I know that I am a woman, I know that Senator Blackburn is a woman, and the woman who I admire most in the world is in the room today — my mother”.
Clearly, the Judge knows what a woman is. The context she’s talking about is the law and her role in the process of interpreting the law as a judge or potentially as a justice.
Words and concepts in the English language often have completely different meanings depending on the context they are used, while “what is a woman” can seem simple, it’s actually a word we redefine several times as we grow and learn more about the world.
“Woman” in Education
How we define the terms girl/boy woman/man changes with the times, but many of you probably learned first that girls have long hair, wear dresses and like the color pink, while boys have short hair, wear pants, and like the color blue. In preschool, this is where we start discussing the differences, talking about outward appearances and preferences as the defining factors, often while dropping clues with our pronouns. A child may be shown a picture of an individual and asked “Is he a boy or a girl?”
As kids grow older they of course learn that every part of that definition can be wrong. Girls can have short hair and wear pants, and boys may prefer the color pink. Eventually, we reach the point of defining boys and girls in a completely different context, the famous line from Kindergarten Cop: “Boys have a penis, girls have a vagina”. This definition only gets us so far in life though, because we don’t go around checking what’s between everyone’s legs before we figure out if we should address them as men or women.
As we try and clarify these terms by adding more concepts, we are actually adding new complexities at the same time.
A girl is a female child, a woman is a female adult.
So then what is a female? A female can have long hair or short hair, wear dresses or pants, like pink or blue, and no you’re not allowed to check between her legs, she could even be either tall or short — so how do we tell?
We can try to guess, but we are not always correct. That awkwardness lead to the development of a long-running character on Saturday Night Live named “Pat”. In this reoccurring skit, various people were constantly trying to guess if Pat was a man or a woman but were never able to figure it out.
The easiest way to know for sure if someone is male or female, of course, is when they tell you. People will typically self-identify as a man or woman and we express that in how we dress, how we speak, how we hold ourselves, and sometimes even directly by asking that we be referred to with specific pronouns or titles.
Sex (and biology)
Another way to try and determine male and female is based on who can get pregnant and have babies. At some level, this goes back to the definition we first covered in Kindergarten Cop, however regardless of how a person may appear on the outside they may or may not have the ability to get pregnant, even if that person is female by every other measure.
If we dig deeper, we can look at a part of our DNA called chromosomes. It often enters the debate that we know sex is binary because people only come with XX chromosomes (female) or XY chromosomes (male). However, just because those are the two most common pairings, that’s certainly not the end of the story.
Groupings of sex-determining chromosomes are called karyotypes, so XX is one karyotype and XY is another. If we declare that each karyotype is a different sex, then there are not two human sexes, but six common ones, and several more uncommon ones.
The seven most common biological karyotype sexes are:
X — Roughly 1 in 2,000 to 1 in 5,000 people (Turner’s )
XX — Most common form of female
XXX — Roughly 1 in 1,000 females
XXY — Roughly 1 in 500 to 1 in 1,000 people (Klinefelter)
XY — Most common form of male
XYY — Roughly 1 out of 1,000 people
XXXY — Roughly 1 in 18,000 to 1 in 50,000 births
Of course, not everyone accepts that each karyotype equals a different sex, so they will try to categorize them into male or female variations. For instance, if there is a Y chromosome then the individual is most likely a male, so you could state that X and XX are variations of female while XXY, XY, XYY, and XXXY are variations of male.
This is not always the case though, as there are exceptions to categorizing karyotypes in this way. Sometimes the human body resists the instructions to adapt based on the chromosome-based instructions and the typical hormone reactions at a cellular level. This is called androgen insensitivity syndrome and it affects roughly 1 in 20,000 to 64,000 XY births. In other words, someone with an XY karyotype will develop as female (though she will not likely have the ability to become pregnant).
The wide variety of human beings in regards to physical sex doesn’t end there, in addition to the six most common karyotypes, and the XY females, there are more individuals who don’t fit in any of those categories neatly. Individuals who may have ambiguous physical traits or the physical traits of both sexes. There is no standard way of referring to these individuals with intersexed traits because there is yet no clear consensus definition of what intersex means and no clear delineation of which specific conditions qualify an individual as intersex.
We can see that the definition of “what is a woman” for a biologist would be drastically different from the definition learned by an elementary school student, and there are people who maintain the argument that physical sex is binary simply with a lot of variations, and those who say that the variations themselves indicate that physical sex is not binary.
Gender (and society)
Regardless of all the details of biology, when we meet a person in the world we are still limited to making our determination if they are male or female, man or woman, based on how they present themselves to us and how they self-identify.
While the terms sex and gender are often used interchangeably, there is growing consensus that the term sex refers to the physical characteristics of a person (the biology) and the term gender refers to socially constructed characteristics of a person. What you wear, how you present yourself, how you identify yourself, and your role in society. If you think of the first modern humans you may think of the men as the hunters and the women as the gatherers. Men become warriors, while women take care of the home and children. Men are big and strong and protect the more fragile women.
These social generalities and stereotypes change through time, and among different cultures, however just as there are always exceptions in sexual differences in biology there are always exceptions in gender roles in society.
There were Viking warriors who were women, and there were men who became farmers instead of hunters, just as there are boys who like to play with dolls and girls who prefer sports. So we can’t take any one part of a person’s personality, or preference in clothing, and divide people into two groups where we declare one group the men and one group the woman, we go by the whole of who a person is as opposed to just one specific trait.
Additionally, there have always been people who did not fit into either male or female roles even if we do include that additional flexibility, people who identify as something else entirely, depending on the culture.
In many Native American cultures, they have the concept of “Two Spirits”. This is not a new concept, but one that goes back before North America was colonized by Europeans. In addition to understanding that people have a physical sex, they may think of people as having a male or female spirit with the understanding that occasionally people may possess both male and female spirits.
In modern western cultures, individuals may identify as non-binary (as no neither male nor female), gender fluid (sometimes identify as male sometimes identify as female) or simply genderqueer (not any of the above).
So just based on what we have covered, there are at least six different genders people could identify as.
As a further complication, a person’s gender does not always match their sex. So if we assume that XX is the most common sex for females, and no physical male traits at birth, they may not identify as female at all but claim to have a male gender. The more uncommon karyotypes such as XXY or X do not correspond to the more uncommon gender identities either.
When one’s gender identity does not align with their physical sex, it can cause issues commonly referred to as gender dysphoria, which is unhappiness due to that incongruity.
Psychologists who study gender may recommend different solutions to treat this unhappiness, from recommending that the person physically change what physical sex traits they can (which is often what the person with gender dysphoria wants to happen) or they could believe that it is a delusion and will try and treat it by convincing the person that they are not the gender they believe they are actually the gender that best matches what the psychologist believes they are based on their physical sex or other factors. The general consensus is that it’s much easier to change physical sex traits than it is to change one’s gender, but there are certainly dissenting opinions on this.
Note that neither sex nor gender relates to sexual orientation, or who we are attracted to, but we won’t get into that here.
We can see that the definition of “what is a woman” for a psychologist may be drastically different from the definition learned by an elementary school student as well, and there are people who maintain the argument that gender is binary simply with a lot of variations, and those who say that the variations themselves indicate that gender is not binary.
The Law
In the American Declaration of Independence, it is declared that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
It does not specify who is meant by “men”, however, at the time it was common to use the male form of words as a generality to include everyone. If we think of Star Trek in the original version they say “Where no man has gone before” yet by the time Star Trek The Next Generation came to be, they changed this to “Where no one has gone before”. The idea was that the two phrases meant the same thing, but the second was more clear.
Thus we can interpret the American Declaration of Independence as saying “all people are created equal”. However, the foundation of law in the US isn’t the American Declaration of Independence, it’s the US Constitution.
The first ten amendments to the Constitution are commonly referred to as “The Bill of Rights” but nowhere in those amendments does it mention sex or gender while quantifying who has what right. Instead, it uses the phrase “the people” while talking about people’s collective and/or individual rights, not “the men have these rights” and “the women have these rights”.
Sex or gender is not mentioned at all until the 14th Amendment, in a section later overwritten by the 26th Amendment which removed the “male” qualifier. The 19th Amendment is still very much relevant, as it says “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex”.
The proposed Equal Rights Amendment (ERA), which has been now ratified by an appropriate number of States, may soon become part of the US Constitution based on the outcome of Senate bill SJ Res 1 (the resolution passed in the House on March 17, 2021).
The ERA states that “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
If that were in place then many legal cases may be settled much more easily, but as it is there may be Federal laws that indicate different rights between men and women, and different State laws which indicate different rights between men and women, and it is up to the courts to decide where a person fits into the categories established by those laws, or if they do at all.
Indeed these are precisely the types of cases that may come up to the Supreme Court because they are about defining what our rights are under the law.
If a law states that women have a right that men don’t, then who decides how that law applies to a person who may be of one sex but a different gender? Or if the law makes sense to differentiate based on sex or gender at all?
In 1972 there was a case, Charles E. Moritz v. Commissioner of Internal Revenue, which came before the courts where a man tried to claim a tax deduction for the cost of a caregiver. However, the law at the time said that the deduction could only be claimed by a woman or a formerly married man. Charles E. Moritz was neither a woman or formally married, so the court had to make the determination if he could claim that deduction or not. In other words, what was the definition of “woman or widower” in the context of the rule? Ultimately the courts decided that the law went against the Equal Protections Clause in the 14th Amendment that “nor shall any State … deny to any person within its jurisdiction the equal protection of the laws”. After that point, the phrase “woman or widower” was changed to “individuals” in the Internal Revenue rules on that tax deduction.
This determination was not without controversy, but this is what the Courts are for — to interpret the law, and to identify which laws themselves are invalid.
There are a number of sex and/or gender-related cases going through the courts now, and more that are being debated in the public realm, and how we define the word “woman” may potentially impact how those cases are decided, or the courts may decide that for that case the equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex or gender.
Some examples are:
Abortion rights: Abortions rights only directly affect persons who have the ability to give birth. So an XY individual with AIS may not qualify as a woman, however, an XX individual with the correct physical traits (sex) who identifies as a man (gender) would qualify as a woman.
Transgender rights: A transgendered person is someone whose original physical sex doesn’t align with their gender. We put sex/gender markers on our identifying documentation, and we may get married in a church that only recognizes male+female marriage, and there may be other situations where people may be treated differently based on their sex or gender — or simply want to change the sex or gender on their ID. So legally would a transgendered person qualify as their gender on legal documents as soon as they reveal that they are that gender, or are they required to transition their physical sex to a certain degree first? These are legal matters where if a person is a “woman” may change at some point in their lives.
Discrimination: the Equal Protections Clause in the 14th Amendment and the ERA often boil down to one concept. That discriminating against one group of people goes against our entire legal structure which is meant to provide equal rights under the law, and against our founding principle that “all people are created equal.” Ultimately, most cases before the courts dealing with sex or gender will be about what is and isn’t discrimination.
Fairness: Equality under the law can be complicated enough, as much as it was one of the founding principles of the country it is a work in progress, people in the US have become more and more equal under the law as time passes, but many will argue that we’re not quite there yet. Beyond that concept, however, is the idea of if something is fair or not, so not just equality but equity. These days in addition to transgender rights there are those who say that allowing transgender athletes to participate in sports does not meet equity standards for other women in those sports. Many states are passing laws preventing transgender athletes from participating in sports if they would play against other athletes who did not match their birth sex. Is this encroaching upon the rights of transgender athletes to participate in sports at all? Or is it not equitable for the other athletes participating in those sports? Should this be decided by the federal government, or by the governing body over that particular sport — which is in a better position to determine was is fair for all of the athletes in that sport? This is a case likely to come before the Supreme Court in which the definition of woman may vary greatly between the prosecution and defense, and the application of that definition could be the determining factor in how the case is decided.
Conclusion
So was Judge Jackson correct in stating that it was not her place to define the word “woman” in the context of being a Supreme Court Justice nominee?
Regardless of if you agree with her or not, hopefully, you can see that the topic is much more complicated than simply the “adult human female” type of answer that might be covered in elementary school.
References:
https://www.youtube.com/watch?v=BWtGzJxiONU — Initial exchange with Senator Marsha Blackburn
https://www.youtube.com/watch?v=NTpdpNPx2pw — Full Confirmation Hearing Day 1
https://www.youtube.com/watch?v=euFaRaVi4Js — Full Confirmation Hearing Day 2
https://www.youtube.com/watch?v=KhVUefb-ZcI — Full Confirmation Hearing Day 3
https://www.youtube.com/watch?v=KexJLKhO_Q0 — Boy and Girl PreK Lesson
https://www.youtube.com/watch?v=T3wcxHiorJ4 — Clip from Kindergarten Cop
https://www.joshuakennon.com/the-six-common-biological-sexes-in-humans/
https://en.wikipedia.org/wiki/Androgen_insensitivity_syndrome
https%3A%2F%2Fen.wikipedia.org%2Fwiki%2FIntersex
https://www.who.int/health-topics/gender
https://indiancountrytoday.com/archive/8-misconceptions-things-know-two-spirit-people
https://genderspectrum.org/articles/understanding-gender
https://www.archives.gov/founding-docs/declaration-transcript
https://www.archives.gov/founding-docs/constitution-transcript
