Defining 'Woman': Biological Sex and Gender

Journal of Gender, Race & Justice (Forthcoming)

Ohio State Legal Studies Research Paper No. 796

42 Pages Posted: 29 Aug 2023 Last revised: 31 Aug 2023

See all articles by L. Camille Hebert

L. Camille Hebert

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: August 29, 2023

Abstract

The current debate about the meaning of the term “woman” has become a proxy for the culture wars over the rights of sexual and gender minorities, with social conservatives claiming that “sex” has traditionally meant “biological sex” and that the determination of one’s sex can easily be resolved by resort to biology. Progressives, on the other hand, argue for a broader definition of “sex,” to include gender identity. It has sometimes been assumed that the social conservatives have history on their side, but this article demonstrates that the courts, including the United States Supreme Court, have not traditionally defined “sex” in such a way as to protect only “biological sex”—better understood to mean sex assigned at birth. Instead, the courts have long interpreted statutory and constitutional prohibitions against sex discrimination to apply to a range of gender-related and sex-related characteristics, including compliance with traditional gender norms and gender roles. This article also demonstrates that the social conservatives do not have science on their side, because current understandings of biology do not support a strict male and female binary. In addition, gender identity itself is believed by scientists to have a biological basis, such that gender identity is a component of sex as defined by biology.

As state and federal legislators and some courts seek to define “sex” narrowly to mean sex assigned at birth, these efforts pose real and significant threats to the rights of transgender individuals to obtain appropriate identification documents, to use public spaces, to obtain healthcare, and to engage in other activities that cisgender individuals take for granted, including the right to participate in sports. And although these efforts are often said to be motivated by a desire to protect women, if “sex” is defined narrowly to mean sex assigned at birth, the protections that cisgender women and men are afforded by the anti-discrimination and other laws are likely to be narrowed as well. These efforts should be seen as what they are—an effort to impose a narrow and limiting definition of the meaning of “sex” in order to restrict protections for the sex-based and gender-based characteristics of all individuals and to impose their own notion of what it means to be “a woman.”

Suggested Citation

Hebert, L. Camille, Defining 'Woman': Biological Sex and Gender (August 29, 2023). Journal of Gender, Race & Justice (Forthcoming), Ohio State Legal Studies Research Paper No. 796, Available at SSRN: https://ssrn.com/abstract=4555608 or http://dx.doi.org/10.2139/ssrn.4555608

L. Camille Hebert (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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