If Sex Matters Less

Why the future should be female and protection should be for all

For as long as I can remember, I have existed within and been marked by sex classifications. By this I mean that I have been sorted into and out of categories, spaces, and opportunities on the basis of sex, including formally by governments and institutions, informally by people in my life and on the street, and naturally by the facts of my body and my own related choices. These classifications are sometimes a net good, sometimes a net harm, and often simply value-neutral.

I tick the box for “Female” on the myriad forms that request this information. I walk through the door marked “Women” to use the toilet, the locker room, or the changing room. For many years, first as an amateur and then as a professional, I competed in “girls’” and “women’s” events in the sport of track and field. I’ve experienced my share of #MeToo moments: as a child on a playground, even though I undoubtedly presented as a tomboy; as a teenager on a babysitting job; and as an adult in the street, on running trails, and at the office. (By the time I was grown, it had become clear that it doesn’t matter how we present: our sex and its associated vulnerability shines through for those who would abuse their relative physical advantage.) And, I’ve had the inevitably sexed experiences that are gestation, childbirth, and nursing; pregnancy and a D&C; menstruation and amenorrhea; and birth-control pills for birth control, but also to regulate my menstrual cycle for athletics and to minimize the incidence of period-related migraines. 

To the extent that I identify as “female” or as a “woman” it is because of these physical experiences and their associated psychological effects, not because of any inherent sense that I am or my brain is female or feminine. The fact is, I tick the box “Female” pretty much automatically, but when I think about it, I accept that it’s often a rational (albeit imperfect) identifier for administrators, just as it is for all of us as we continually situate ourselves in relation to others. I go into doors marked “Women” for reasons that are almost as automatic: because it’s the custom and because I care about my bodily privacy and safety in relation to men. Safety in relation to men is also why I no longer run at night or on trails and back roads, even though these are the best runs. And because I was an athlete, for many years my body was my business, from its parts and processes to the complete package and how fast it could go. The nature of that “business” changed when it was about mothering instead, but throughout it remained a specifically female-bodied experience.

That women continue to be treated differently in school and the workplace partly because others see in our female phenotypes a signal that we have certain capacities, aptitudes, and commitments, makes clear that our female bodies remain deeply salient in the extent to which they affect our experiences and opportunities. As with physical assaults, these incidents of female sex exist however we present, whether we adhere to or defy feminine stereotypes. And they surely contribute to the fact that fifty years from the start of RBG’s revolution, still only 6.6 percent of Fortune 500 CEOs and 20 percent of equity partners in major law firms are women.

Because of all of this, but also because federal constitutional law clearly allows policymakers to recognize the “inherent differences” between the sexes when this is necessary to ensure equality for females—see Title IX, for example—I was surprised and disappointed when the Obama administration announced that it would interpret the word “sex” in “sex discrimination” law to mean “gender identity,” which it defined as “an individual’s internal sense of [themselves] which can be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” Of course, this move was designed primarily to secure much-needed protections for people who are transgender. But it also signaled the administration’s view of the relative insignificance of biological sex as a legal category, as well as its alliance with that strand of the identity movement that holds that erasure of the sexed body from law and policy is necessary to ensure equality for the LGBTQIA community.

Unsurprisingly, this move at the federal level didn’t survive the earliest days of the Trump administration or the scrutiny of many across the political spectrum, including within the LGBTQIA community itself. But it was effective in the interim, and it’s had quite a long tail. Fearing the withdrawal of federal funds, or because they agreed with the Obama administration’s position, many states adopted similar policies. And this past spring, the U.S. House of Representatives passed H.R. 5, the Equality Act, which does a version of the same, defining “sex” to include “gender identity” and disallowing any distinctions on the basis of sex. Its effect would be to elide the differences between women who are female and women who are transgender.

In related testimony before the House Judiciary Committee, I encouraged legislators to enact protections for the LGBTQIA community that remain considered about the circumstances in which biological sex still matters, including in sport. Because females are physically disadvantaged in relation to males, Title IX and the Olympic and Amateur Sports Act require schools and national governing bodies to provide separate but equal opportunities for females. This requirement continues to be enormously empowering in ways that transcend sport and that are not only good for female athletes but also for girls and women and their societies more generally. If you had any doubt about this before, I trust that this summer’s FIFA Women’s World Cup resolved them. In contrast, approaches to addressing inequality that elide relevant differences tend not only to be ineffective; they can actually serve as cover for ongoing discrimination.

In the future, when the dust has settled on this turbulent moment, my broader hope is that we will have managed to secure equal protection for people who are transgender without having to adopt the legal fiction that sex and gender identity are interchangeable. We’re all entitled to equality on the terms that matter. For women and girls, whether we like it or not, sex remains one of the terms that matters most.

Coleman is a professor of law at Duke School of Law. 

Share your comments

Have an account?

Sign in to comment

No Account?

Email the editor