The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


On Sex and Gender


The last time I blogged for the Volokh Conspiracy was in March 2019, following my testimony in the Semenya case at the Court of Arbitration for Sport (CAS). That case was one of the first—if not the first—to raise two questions which have since become central features of our culture wars:

(1) Whether 'female' still means a person with a female body—or more generally whether 'sex' still means biological sex, e.g., per the NIH, 'the differences between males and females caused by differential sex chromosome complement, reproductive tissues, and concentrations of sex steroids' (emphasis mine); or per Oxford via Google, 'either of the two main categories (male and female) into which humans and most other living things are divided on the basis of their reproductive functions.'

(2) Whether it's still permissible to have (biological) sex classifications and then to sort people in and out of those categories on the basis of (biological) sex differences—or whether gender (here as legal gender or gender identity) is the better sorting tool.

(I emphasize caused by because sex isn't our chromosomes, our gonads, and/or our gonadal hormones. Rather, these are part of a much larger set of sex characteristics two of whose functions are to drive human sexual development and to sustain our bodies thereafter.)

In line with some progressive positions on these questions, at the CAS in 2019, two-time Olympic Gold Medalist Caster Semenya claimed—unsuccessfully in that forum—that she has a human rights-based reliance interest in her (female) legal gender that trumps her (male) sex so that she should have unconditional access to the female competition category.

(Just to get this off the table, for about a decade from 2010 to 2020, the media and others suggested that Semenya's actual sex—as opposed to her birth sex assignment—was female or something in between female and male. The terms 'female with hyperandrogenism' and 'intersex' were widely bandied about in that period. But that's since been put to rest, including by the CAS decision and most recently by the athlete herself. In her 2023 memoir, she denies being 'intersex' and (mostly) opens up about the relevant biology.

She appealed the CAS decision to the Swiss Federal Tribunal, where she lost; and the SFT's decision to the European Court of Human Rights, where she won an initial round—the en banc hearing on Switzerland's appeal is this month.)

My posts on Semenya's case—including on the underlying science, the performance gap between male and female athletes, and the commitments that inform the governing bodies' eligibility standards—probably contributed to my being invited by the GOP to testify a month later before the House Judiciary Committee that was considering H.R. 5 – The Equality Act. The Act would redefine 'sex' in federal law to include (among other things) sex stereotypes, gender identity, and sex characteristics (our 'bits')—but apparently not the sexed body itself. It would otherwise disallow any distinctions on the basis of sex and sex-linked biology—even good and valuable ones.

Together with my ongoing work, my testimony for federal protections for gay and trans people but against this strategy for achieving them led to a years-long, sometimes hostile, involvement with the issue that has culminated in a new trade book, out tomorrow from Simon & Schuster, On Sex and Gender – A Commonsense Approach. Some of the hostility occurred at a UCLA Federalist Society event just days before the country shut down for Covid. In other words, it's partly Eugene's fault that I'm back to blog about the subject as it's transcended sports.

As I explain in the Introduction, since I entered the domestic fray in 2019:

the culture war between those on the left who want to erase sex and those on the right who want to erase gender diversity has only ratcheted up. As a candidate for the 2020 Democratic presidential nomination, Joe Biden announced that the Equality Act would be his top legislative priority, and he's followed through to the extent of his authority. Florida governor Ron DeSantis, who was a candidate for the 2024 Republican nomination, illustrates the response. He's spearheaded laws that ban gender-affirming care for trans kids and any instruction on gay and transgender issues in schools.

It's not just straight male politicians who are presenting us with either/ors. In the sports world, Megan Rapinoe "would 'absolutely' welcome a transgender woman onto the USWNT," while Caitlyn Jenner "opposes biological boys who are trans competing in girls' sports in school." These are just a few prominent examples. But in between, where the polling shows you'll find most Americans, there's confusion and concern.

I'm writing this book for everyone who wants to understand what's going on for themselves, and who's inclined to be both inclusive and true to the science. I'm also writing to say my piece.

We are at a crossroads in the history of sex and gender. We've overcome a lot of the historical sexism that defined women and their lives, and we now need to decide if, going forward, we're going to be sex-blind or sex-smart. This was already the question in 1996 when [Ruth Bader] Ginsburg penned the majority opinion in United States v. Virginia; that is, it predates the current trans movement. But in pushing as hard as it does for sex blindness, the movement has forced women—and men—in the middle to articulate a nonreligious case that sex matters and to show that there's a path forward that embraces both sex and gender. These are the goals of this book.

Here's the Table of Contents that details how I do that:

Part I. What is Sex?

Chapter 1 – The Answer from Biology

Chapter 2 – The Answer from Law

Chapter 3 – The Answer from Progressive Advocacy

Part II. Sex Matters

Chapter 4 – Sex is Good!

Chapter 5 – Sex Just Is (Like Age)

Chapter 6 – Sex Is Still A Problem (Like Race)

Chapter 7 – The (Un)Lawfulness of Classifications on the basis of Sex and Gender

Chapter 8 – The Politics of Sex and Gender

Chapter 9 – A Commonsense Approach

In my next four posts, I'll draw from different chapters to highlight four of several issues that may be of particular interest to readers of the Volokh Conspiracy:

Tuesday's post, What is 'Sex'? focuses on the fascinating collision among the efforts from science and medicine to grow the body of evidence that allows us to know sex better so that we can be smart—not sexist—about the differences between sex and gender; from law to denude sex of the unscientific inferences and cultural artifacts that have operated over time especially to subordinate and marginalize women; and from progressive academia and advocacy to describe all sex differences as 'myth and stereotype' and then to reimagine sex as gender—but this time as gender identity and expression—in service of different goals: (for some) liberty and equality for trans people and (for others) a sex-blind society.

Wednesday's post, This Crossroads Moment, highlights the central modern question for law and policy: whether to take the final step in the historical sequence from structural sexism to sex skepticism—where the Supreme Court left us in 1996 in United States v. Virginia—to sex blindness, where progressives have long wanted us to go. In 1996, the Court rejected this final move; how should we respond today?

Thursday's post, The Language Wars, focuses on how trans advocates and their allies have worked to control the words we can use to speak about sex and gender. The question that rang round the world on the occasion of then-Judge Ketanji Brown-Jackson's confirmation hearings, "Can you provide a definition for the word 'woman'?" derives from these efforts and the right's response to the language land grab.

Friday's post, Life in the Trenches, describes the politics of sex and gender as I've experienced them in academia over the last several years. Early on the debates were mostly on the substance, but they quickly became part of the broader ones about academic freedom, free speech, civil discourse, and the role of the university in society.