Dem
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GOP
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During the confirmation hearings for Ketanji Brown jackson, Sen. Marsha Blackburn (R-TN) asked Jackson to define "woman." Jackson replied: "I am not a biologist." She'd better brush up on her high school biology because now that she is on the Supreme Court, she is going to be forced to deal with that, sooner or later.
The reason is that many states are most definitely defining what a woman is, and there are going to be lawsuits about the definitions, and one or more of them is certain to make it to the Supreme Court. That is especially so if different circuit courts accept different definitions of "woman."
South Carolina is taking the lead here but there will soon be more. State Sen. Danny Verdin (R) filed a joint resolution this month that would amend the state Constitution to define "male" and "female" in "the context of reproductive potential ... without regard to an individual's psychological, chosen, or subjective experience of gender." In other words, if you are capable of producing eggs, you are a female. If you are capable of producing sperm, you are male. What you think you are is irrelevant. If both chambers of the legislature approve, the question will be put on the 2024 ballot for the voters to decide. Similar measures are already pending in six other states, with more to come in 2023.
Who's a woman plays a role in a number of contexts. For example, some sports teams are women only. Some public restrooms are for women only. Some grant programs to small businesses give preferences to businesses owned by a woman. Some prisons are segregated by sex. Cases about discrimination in the workplace may depend on the sex of the discriminee. And there are other situations in which words matter.
The Independent Woman's Forum is a nonprofit conservative group working on a Women's Bill of Rights. Briefly summarized, it has nine points, as follows:
Of course, all of these are focused on making it clear that a man who identifies as a woman is still a man before the law. The group says it is not against anyone, and that its goal is to protect women.
In addition to Verdin's resolution in South Carolina and the other state bills, Rep. Debbie Lesko (R-AZ) has introduced a bill in the House to define a person's sex under law as the one to the person was assigned at birth. It might well pass the new House but is unlikely to come to a vote in the Senate, because Majority Leader Chuck Schumer (D-NY) knows that many of his members do not want to vote on it. However, absent federal legislation, until the Supreme Court makes a ruling, we could have a hodge-podge of definitions, with some individuals being considered a man in one state and a woman in another.
Conservatives have the advantage here because a definition doesn't work if there is no test for it. If the law says a woman is a person who has XX chromosomes, that is relatively easy to check, if it comes to that. If the law says anyone who claims to be a woman is a woman, then it gets very murky. Can anyone apply to be admitted to a women's only college by just checking the "F" box on the form, or apply for an SBA grant intended for women by claiming to be a woman? It gets much more complicated and there will be endless lawsuits. One possible bright line might be that any person currently possessing a penis is a male and anyone not currently having one is a female. That at least admits the possibility of sex changing and is also testable. Of course, even that brings up issues with intersex persons and people who have been aggressively treated for penile cancer.
In any event, the subject of "what's a woman?" is going to be a hot topic in 2023 and is likely to be on the 2024 ballot. While it falls somewhat along partisan lines, we suspect that nearly all Republicans would vote for Verdin's ballot measure, but that a substantial number of Democratic voters would, too. No doubt as soon as some state formally puts a measure like Verdin's on the 2024 ballot, somebody will run a poll on it and we can see the crosstabs. They could be quite interesting by sex, age, race, education, and income. (V)