Does the Legal Definition of a “Woman” Matter?

Republican Efforts to Have a “Gotcha” Moment with Judge Ketanji Brown Jackson Distort Legal Reality

During the March 22 hearings for her nomination to the United States Supreme Court, Senator Marsha Blackburn (R-Tennessee) asked Judge Ketanji Brown Jackson if she could provide a definition of a “woman”¹. Judge Brown Jackson wisely responded “No, I’m not a biologist.”²

Seizing on the current cultural debate on the role of transgender women in sports and prisons, many conservatives rushed to attack Judge Brown Jackson.³ After all, how could one decide a case regarding gender discrimination if one cannot define what a man and a woman are?

While this may be a common public sentiment and one embraced by the Trans-Exclusionary-Radical-Feminist (or “TERF”) movement, it actually reflects a fundamental misunderstanding of constitutional law, statutory interpretation, gender equality under the law.

Let’s start with some basics on current law regarding gender rights.⁴

Gender discrimination by the government is generally prohibited under the federal constitution.⁵ While the standard for evaluating whether a gender discriminatory policy is constitutional is slightly less rigorous than the standard for evaluating racial discrimination, the government still bears the burden of proving the necessity of the discriminatory law or policy.⁶ When seeking to uphold a policy or statute that discriminates on the basis of gender, the government must prove that there is an “exceedingly persuasive justification”.⁷ Moreover, the government must prove that gender discriminatory policy serves that exceedingly persuasive justification and is substantially related to achieving those objectives.⁸

The Equal Protection Clause applies equally to gender discrimination against men as it does to gender discrimination against women.⁹ When evaluating whether gender discrimination is constitutional, courts are required to do so “free of fixed notions concerning the roles and abilities of males and females.”¹⁰ “Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions.”¹¹

“Thus, if the statutory objective is to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.”¹² Thus, the United States Supreme Court has repeatedly struck down governmental policies and laws that have favored women over men.¹³

Title VII of the 1964 Civil Rights Act also prohibits gender discrimination by employers.¹⁴ When the provision banning gender discrimination was added to the Civil Rights Act, opponents argued that gender discrimination is “sufficiently different from other types of discrimination that it ought to receive separate legislative treatment”.¹⁵ However, those opponents of that amendment (inserted as an attempt to sabotage the bill) lost the argument and the provisions banning gender discrimination became the law when the Civil Rights Act of 1964 was passed by Congress and signed into law by President Lyndon Johnson.¹⁶ In prohibiting gender discrimination by employers, Title VII of the 1964 Civil Rights Act, also prohibits sexual harassment in the workplace.¹⁷ The prohibition against gender discrimination also prohibits discrimination by employers on the basis of parenthood.¹⁸ And it applies even when the workplace discrimination is well-intentioned or designed to create gender equity.¹⁹

One might think, and it is suggested by conservatives, that somehow, the definition of a woman is a dispositive factor in deciding a Title VII case.²⁰ However, this is mistaken as the definition of one’s gender does not matter in determining a case outcome regarding gender discrimination.²¹

Two landmark cases in particular, the United States Supreme Court decision in Oncale v. Sundowner Offshore Services,²² and the California Supreme Court decision in Koire v. Metro Car Wash²³ illustrate this point.

Oncale involved a case in which a male employee on an oil rig had been sexually harassed by his male coworkers including sexual physical assault.²⁴ After complaining to a supervisor and getting no relief, he finally left his job and filed a lawsuit in federal court under Title VII of the 1964 Civil Rights Act.²⁵

However, his federal lawsuit was dismissed by the district court, which wrote that “a male, has no cause of action under Title VII for harassment by male co-workers” and in true TERF fashion, the 5th Circuit Court of Appeals affirmed.²⁶ However, the United States Supreme Court, in an opinion authored by noted left wing feminist activist, Justice Antonin Scalia, unanimously reversed.²⁷

As the Court explained, “Title VII’s prohibition of discrimination ‘because of . . . sex’ protects men as well as women.”²⁸ A gender discrimination claim thus does not turn on the definition of a woman, whether it social or biological, because Title VII does not consider the gender of the plaintiff and defendant to be relevant.²⁹

While some federal courts had held that same-sex sexual harassment cases could never be brought or could only be brought if the sexual harasser was gay and motivated by sexual desire, the Court rejected these decisions as “bewildering”.³⁰ The Court also rejected arguments about the lack of Congressional intent to prohibit same-sex sexual harassment when it enacted Title VII.³¹

As the Court explained, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Accordingly, discrimination on the basis of sex included sexual harassment of any kind regardless of the sex of the party.³²

In the landmark decision of Koire, the California Supreme Court addressed the issue of whether Ladies Nights with price discounts and giveaways to women violated the Unruh Civil Rights Act.³³ The Unruh Civil Rights Act is a broad civil rights act law that prohibits, among other traits, gender discrimination by places of public accommodation in California.³⁴ In Koire, an Orange County man sued several carwashes and bars for violating the Unruh Civil Rights Act after they refused to give him discounts that they specifically offered to women.³⁵ However, the trial court found in favor of the defendant businesses, holding that they did not violate the Unruh Civil Rights Act.³⁶ And a divided Court of Appeals affirmed.³⁷ They even mocked the man, referring to his efforts to obtain discounts for women only as “embark[ing] on a crusade of sorts” and describing him as “haunt[ing] bars and clubs”.³⁸

The California Supreme Court unanimously reversed.³⁹ In attempting to justify the legality of Ladies Nights promotions, the defendants relied on biological arguments, arguing that the Unruh Civil Rights Act only prohibited the exclusion of men from a business establishment, allowed gender discrimination based on admissions prices and services, and had recognized exceptions for gender based discounts.⁴⁰ Moreover, the defendants argued that their discounts to women were simply ordinary discounts in the course of business to two distinct biological genders and that the man hadn’t even been injured.⁴¹

However, the Court rejected all of these arguments. As the Court held, the plain statutory language of the Unruh Civil Rights Act didn’t just prohibit outright exclusion from business establishments, it mandated equal treatment of customers regardless of gender.⁴² The Court also held that simply because the practices of discriminating against men encouraged more patronage of the businesses and encouraged social mixing did not justify the unlawful act.⁴³

Finally, the Court explained that differential treatment of men and women in business pricing was “detrimental to both men and women, because it reinforces harmful stereotypes.”⁴⁴ “Men and women alike suffer from the stereotypes perpetrated by sex-based differential treatment.”⁴⁵ Whatever stereotypes one wanted to make about men and women, the Unruh Civil Rights Act prohibited them.⁴⁶ As the Court concluded, “The legality of sex-based price discounts cannot depend on the subjective value judgments about which types of sex-based distinctions are important or harmful.”⁴⁷

Both Oncale and Koire share an important theme. Civil rights laws against gender discrimination prohibit discrimination regardless of who discriminates or even why. It does not depend upon biology or social construct. It makes no difference in a legal decision.

This is also true in civil rights cases regarding race and ethnicity. As the United States Supreme Court has explained, “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.”⁴⁸ When the court evaluates racial discrimination under the Constitution, there is no separate standard that it applies depending upon the races of the parties involved.⁴⁹

As Justice Sandra Day O’Connor once wrote, “At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens ‘as individuals, not ‘as simply components of a racial, religious, sexual or national class.’”⁵⁰ Race also does not determine the outcome of Title VII cases regarding racial discrimination.⁵¹

Thus, should one define gender by biology or sociology? For legal purposes, “Title VII doesn’t care.”⁵² The Equal Protection Clause doesn’t care either.⁵³ Nor does the Due Process Clause.⁵⁴ Nor would the First Amendment if there were attempts to criminalize anti-transgender speech.⁵⁵

For example, one could imagine a state attempting to pass a law proposed by the German Green Party, where people would face civil liability and criminal prosecution for labeling someone by the wrong pronoun or deadnaming a person.⁵⁶ The question would not be whether someone criminally accused or civilly sued was correct in referring to another’s gender, the dispositive factor would be whether the government had satisfied its First Amendment burden (which it would almost certainly be unable to do).⁵⁷

Certainly, people can have different views on the definition of what a woman is. And those definitions can depend upon whether one uses biology, religion, culture, or academic theory. But those definitions are irrelevant to legal outcomes. While her answer to Senator Blackburn’s question may have made for scoring some easy political points, it in no way diminishes Judge Ketanji Brown Jackson. It only reaffirms her dedication to the law and how exceptionally well-qualified she is to serve on the United States Supreme Court.

1

Townhall.com @townhallcom

Senator Blackburn: "Can you provide a definition for the word woman?" Judge Jackson: "No. I can't...I'm not a biologist."

2. Id.

3. https://www.foxnews.com/politics/ketanji-brown-jackson-bidens-supreme-court-pick-refuses-to-define-the-word-woman

4. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.