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October 8 2019

Should the Legal Meaning of "Sex" Be Changed?

by Charlotte Hays

Should the legal meaning of “sex” be changed? 

That, argues Ashley McGuire in an oped in this morning’s Wall Street Journal, is the crux of the matter before the Supreme Court when it hears oral arguments in two cases today. McGuire also argues that, if the court broadens the legal meaning of sex, it will be “a disaster for women.”

To be clear, McGuire is not making an argument in favor of employment discrimination here. Rather, she is saying that conflating sex and gender, which she says the Court might do, ultimately will harm women.

The two cases are Harris Funeral Homes v. Equal Employment Opportunity Commission and Bostock v. Clayton County. McGuire writes:

The cases relate to whether federal law prohibits employment discrimination based on employees’ sexual orientation (Bostock) or “presenting” as the opposite sex (Harris Funeral Homes). Many Americans support legal protections against employment discrimination for those categories.

But rather than new legislation creating civil rights protections for those categories, the plaintiffs seek protection under Title VII of the 1964 Civil Rights Act, which prohibits discrimination “on the basis of sex.”

In short, they are asking the justices to conflate sex with what is now known as gender identity. Yet “sex” has a concrete scientific definition—whether one is male or female as determined by chromosomes and biology.

Gender means—well, ask Facebook. At one point the company’s alternatives numbered as many as 71, including “pangender,” “neutrois” and “androgyne.” That wasn’t enough to placate the vast gender-identity movement, which lambasted the social-media platform for those who were left out. Eventually, Facebook opted for “male,” “female” and “custom.”

The American Medical Association has a simpler approach in its style guide: “Sex refers to the biological characteristics of males and females,” but “gender includes more than sex and serves as a cultural indicator of a person’s personal and social identity.” That could mean anything.

McGuire concludes:

What becomes of women in a world where our legal status is in the same category as “two spirit” or “demiboy”? It sounds like a joke, yet already women find themselves all too often in a legal pretzel where they are accused of discrimination under laws once designed to protect them. A rape victim doesn’t want a biological male in her safe house. A teenage athlete doesn’t want one on the opposing team. No woman or girl wants one in the ladies’ room. Expand the legal definition of sex to include gender identity, and girls and women will increasingly find themselves in those situations, and they could face discrimination lawsuits if they speak out.

Justice Ruth Bader Ginsburg, who popularized the phrase “on the basis of sex,” wrote in 1975: “Separate places to disrobe, sleep, perform bodily functions are permitted, in some situations required, by regard for individual privacy.” Today she and her colleagues are confronted with the question: Can a women still claim a right to privacy on the basis of her sex?

Perhaps the deepest tragedy in winnowing the meaning of sex is the diminution of what it means to be a woman. Women have spent the better part of the past century building up our stature in society. I want my daughter to grow up proud of being a woman. I want her to be a part of expanding women’s rights, not fighting for the basic legal recognition we thought we’d won in 1964.

Independent Women's Forum has filed an amicus brief in support of Harris Funeral Homes. We raise some of the points McGuire raised:

IWF filed its brief in support of the employer Harris Funeral Homes because of concerns that a ruling expanding the statutory meaning of “sex” to include transgender status will have the unintended consequence of requiring athletic programs to allow male-bodied athletes to compete on women’s teams and against female athletes. 

When Congress passed Title VII in 1964, it banned employers from treating an individual less favorably than similarly-situated individuals of the opposite biological sex. Congress did not address the issue of discrimination because of an individual’s gender identity or transgender status. Eight years later, Congress enacted Title IX to prohibit sex discrimination in education. Title IX has been instrumental in expanding athletic opportunities for women and girls. 

Jennifer Braceras, Director of IWF’s Center for Law & Liberty, issued the following statement:

“When it comes to issues of gender identity, each context poses its own unique set of challenges and requires consideration of scientific evidence and the weighing of competing interests. Policy-making bodies are best suited for this deliberative process, and such deliberations are, in fact, ongoing. Transgender participation in competitive athletics presents particularly complicated issues that are not easily resolved by blunt, one-size-fits-all judicial decrees. The Supreme Court should not limit athletic opportunities for women and girls by interpreting federal anti-discrimination law to prohibit distinctions on the basis of transgender status.” 

Meanwhile, in a similar vein to McGuire’s article, Charlotte Allen had a fascinating piece in First Things on the rise of the transgender athlete and how this phenomenon is harming women athletes. Transgender athletes, Allen says, are crushing women in sports:

Male-to-female transgender athletes are vanishingly few in number (like male-to-female trans people in general), but as the above examples indicate, when they compete, they pose a crushing existential threat to women’s sports. That is because the very existence of women’s sports is predicated, as Martina Navratilova recognized, on the now-highly politically incorrect observation that the two sexes are radically different physically. 

. . .

For decades feminists have castigated heterosexual men for trying to “erase” women—from history, from society, from political life. But the real erasure of women these days is coming from their fellow progressives. They are being denied their distinctive female sports, their distinctive female bodies, and, ultimately, their distinctive female identities.  

Both writers make a similar point: it is women who will suffer most if the current legal meaning of sex is changed.

There is an editorial in the Wall Street Journal this morning that gives you more information on the two cases before the Supreme Court.

You can read IWF's amicus brief here.

 





Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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