On Sex and Gender: A Commonsense Approach

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For Bluette, who taught me to have an unbounded self-conception

Chama had to wait months to get the exact red silk she was looking for, and then the matching blue a few weeks later, and even then the colors were not quite right. She and Sidi Allal did not mean the same thing by red and blue. People, I discovered, often did not mean the same thing by the same word, even when talking about seemingly banal things like colors.

—Fatima Mernissi, Dreams of Trespass: Tales of a Harem Girlhood

Introduction

ON APRIL 2, 2019, the Judiciary Committee of the United States House of Representatives held a hearing to consider legislation called the Equality Act. The act, which goes by the bill number H.R. 5 in sessions when the Democrats hold the House, is an initiative designed to secure federal civil rights protections for people who are gay or transgender. It would ensure, for example, that a pediatric practice couldn’t refuse to enroll a baby as a patient because he has two moms, and a hotel couldn’t refuse to accept a booking from someone because they’re transgender. Many states already have these protections, but many don’t, and discrimination based on sexual orientation and gender identity is ongoing. A federal statute would provide national-level assurances that people in the LGBTQ communities have the right—like everyone else—to be treated with dignity and respect as they go about their lives.

These protections are no-brainers as far as I’m concerned. A person’s gender identity and sexual orientation have nothing to do with whether they should be able to buy bread (a necessary transaction) or rent skis (a discretionary transaction). Basic decency isn’t a partisan proposition, and tolerance of individual difference is a minimal requirement for a well-functioning society—especially a pluralistic one like the United States. Whether I’m a buyer or a seller, your humanity—not your politics—tells me that I should engage with you courteously. As children, we’re taught this as the golden rule: treat others as you would want them to treat you. As adults, the lesson is no less golden, and everyone depends on it every day.

Nonetheless, I wasn’t in Washington to speak in favor of the Equality Act. I’d been invited to the hearing by Republicans who oppose H.R. 5. They wanted me to testify to its implications as drafted for girls’ and women’s sports. These were at risk because the strategy adopted by the bill’s sponsors to secure rights for gay and trans people wasn’t simply to prohibit discrimination based on sexual orientation and gender identity. Instead, they had included two radical proposals that would go far beyond what was necessary to achieve that goal. I’m not using the word radical politically here, I’m using it literally to mean—per the Oxford Dictionaries via Google—affecting the fundamental nature of something.

The first of these proposals was to re-define sex in federal law in a way that bears little resemblance to how the word is normally used. By sex we usually mean—per Oxford again—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. Instead, the drafters of H.R. 5 defined it as a sex stereotype; pregnancy, childbirth, or a related medical condition; sexual orientation or gender identity; and sex characteristics, including intersex traits. This was essentially the wish list from progressive advocates pushing for a sex-blind society—one in which sex is deconstructed and certain core truths are discarded. Whatever your political leanings, it would undoubtedly affect the fundamental nature of things as we know them to disconnect sex from the male and female body and also from reproduction more generally.

The second proposal was to prohibit—without exception—all sex classifications. Even good and valuable ones. Again, whatever your political leanings, going sex-blind in law and policy would undoubtedly affect the fundamental nature of things. Sex is our first natural taxonomy, meaning the first way humans are divided biologically. It’s probably also our first social taxonomy, that is, the first way we sort people and are sorted by others. Lots of traditional sex classifications have been properly discarded because they were wrong or simply designed to subordinate the female half of the population. But you don’t have to be a traditionalist or conservative—just human—to know that not all decisions based on sex are sexist.

Sports is an obvious example. If H.R. 5 had passed as drafted, it wasn’t clear that we could continue to have women’s and men’s sports—at all. Even if we could, though, it’s clear that sorting people into and out of these groups by sex would be prohibited by the legislation. In that case, it would defy common sense for a policymaker to support two parallel programs, both of which include a mix of males and females. For some, this is precisely the point: as with the push for gender-neutral restrooms, their utopia is unisex.

I was on the list of witnesses to testify not just because I had decades of experience with sex-segregated sport, but because I’d taken public stances in those years about the value of protecting the female category.

I’d been an elite athlete. My freshman year in college—at Villanova—was 1978, the first year American universities were required by Title IX to begin supporting women’s teams and awarding sports scholarships also to female athletes. Had these mandates not been set, only men would have had the physically, educationally, and culturally empowering experiences that shaped me and my peers. In 1982, my senior year in college—at Cornell—I became one of the first student-athletes to graduate from the Ivy League as a collegiate national champion, with the now-defunct Association for Intercollegiate Athletics for Women. That association ran women’s sports nationwide until the NCAA deigned to add us to their programming. For several years thereafter, I competed for my club and national teams.

As a young lawyer starting in the early 1990s, I helped to develop anti-doping programs and to prosecute cases brought under those programs. It’s because I was an elite athlete and have been working with scientific experts in androgens for decades that I know a lot about their dual body-building and performance-enhancing effects. As part of this ongoing work, in 1999, I testified before the Senate Commerce Committee at the request of its chair, John McCain, in connection with the establishment of the World Anti-Doping Agency (WADA). I then worked with the Clinton White House on its contribution to WADA’s founding documents.

As a legal academic, I’ve written and advised regulators about how empowering women and girls through sports has done enormous individual and societal good that can be realized only when athletes are sorted by sex. In 2017 specifically, I published a law review article called Sex in Sport, which focuses on the challenge to the sex-based eligibility rules for the female category. This article was the basis for my testimony earlier in 2019 in Caster Semenya’s case at the Court of Arbitration for Sport, which I discuss in chapter 1.

I’m a liberal Democrat. Back in 1999, it never occurred to me to be concerned about testifying for the other side because the anti-doping effort wasn’t a partisan proposition. In those days, no one who wasn’t cheating wanted excess androgens in girls’ and women’s sports. Democrats and Republicans alike understood that sex-linked biology is central to success in competitive sports, and they were all in for supporting female athletes.

In 2019, the issue was a version of the exact same question, but everything was suddenly fraught. I was concerned about testifying for the Republicans because their goals then were very different than mine. It’s an understatement to say that rights for gay and transgender people aren’t a bipartisan commitment. Leaving aside the desire for a sex-blind society that motivates H.R. 5’s most radical backers, the day-to-day obstacles for people in the LGBTQ communities are real and, as I would say at the top of my remarks before the House Judiciary Committee, I support equality for everyone. Many Republicans support equality too, of course, but not those who were calling for my testimony.

I was further concerned because by testifying I would be breaking ranks with my people on an important political question, and I would be exacerbating a fault line that opponents of things that matter to me could exploit. The bill’s sponsors and backers were undeniably my people, and my commitment to equality goes deeper than the levers I pull on Election Day. I’m mixed-race, I was raised in a civil rights family, and my husband, who is African American, is a civil rights lawyer with decades-old ties to the social justice movements.

The problem was that no one from my side was giving women who reject sex blindness the time of day. In April 2019, it seemed they were either locked into sex blindness as their approach (to trans rights) or it was their goal (for society more generally), and they were brooking no dissent. Deplatforming, censorship, and cancellation of women like me were rife.

My sense, though, was—and remains—that most people in the broader Democratic family, along with many moderate Republicans, want civil rights protections for gay and trans people, but not by way of denying sex. Outside of certain academic and political bubbles, people know that sex is real; they know that it matters to their lives; and—importantly—they know that it’s not only about discrimination and equality so that filtering it exclusively through that lens gives you a warped sense of things. My sense is that most people aren’t interested in a sex-blind society; they’re interested in a sex-smart society. My hope was that if I accepted the GOP’s invitation to testify, I could speak for a nonideological, commonsense, and evidence-based policy.

And so, on a cool spring day in Washington, D.C., in a packed room full of members of Congress, witnesses, legislative aides, and the press, I began my testimony with a general point about inequality:

[D]ifferent groups experience inequality for different reasons, at the hands of different people, and in different ways, so that tailoring an effective remedy requires careful attention to those differences. Although the nation benefits as equality expands, in fact only some amongst us needed the Emancipation Proclamation and Brown v. Board of Education. Only some of us need Title IX and the Violence against Women Act. Approaches to addressing equality that elide relevant differences are not only ineffective; they can actually serve as cover for ongoing inequality.

I then focused on the problem with the way H.R. 5 was drafted:

I support equality, including for the LGBTQ community. But I don’t support the current version of H.R. 5 because—and I say this with enormous respect for everyone who cares about and is working on the bill—it elides sex, sexual orientation, and gender identity: It’s all sex discrimination, and, at least impliedly, we’re all the same. In opting for what is in effect a sex-blind approach to sex discrimination law, the legislation would serve as cover for disparities on the basis of sex.

I explained that sport provides an easy example of how sex-blind law would disparately affect females, and how we sometimes have to act on the basis of sex to achieve equality:

Scientists agree that males and females are materially different with respect to the main physical attributes that contribute to athletic performance, and they agree that the primary reason for sex differences in these attributes is exposure in gonadal males to much higher levels of testosterone during growth and development (puberty), and throughout the athletic career.

This different exposure literally builds the male body in the respects that matter for sport.

If U.S. law changes so that we can no longer distinguish between females and women with testes for any purpose, we risk not knowing the next Sanya Richards-Ross or the next Allyson Felix. We risk losing the extraordinary value that comes from having Serena Williams, Aly Raisman, and Ibtihaj Muhammad in our lives and on the medal stand. If they bothered to compete, they would be relegated to participants in the game.

To the argument that participation should be enough—that females don’t also need to win—I added:

Participation contributes to equality, but the real power of girls and women in sport isn’t in gym class, it’s in teams, in competitions, and in victories. It’s in the same numbers of scholarships and spots in finals and on podiums. It’s in the fact that Brandi Chastain can win World’s, celebrate like the guys, and get a whole generation of little girls to play soccer because she did. It’s in the fact that Simone Manuel can win Olympic Gold in the 100 meters freestyle with millions watching on prime-time television and from there can lead a generation of African American kids to the pool who didn’t believe that swimming was for them too.

I concluded my remarks by encouraging members of Congress to consider revisions to H.R. 5 that provide protections for LGBTQ people that don’t risk these invaluable goods, and that are otherwise considered about the circumstances in which sex still matters.

Taking the counter position that day was the legal director of the National Women’s Law Center (NWLC), and her remarks—at least for me personally—were brutal. The NWLC has long been one of America’s leading organizations protecting women’s rights. If any group knew that the discrimination and disparities women face have always been based in the female body—and that ignoring this has always served to perpetuate our inequality—it was the NWLC. It’s not an understatement to say that for decades the organization was my champion. (Also, for a time in the 1980s, my husband was on its board.) I knew going into the hearing that a few years earlier, it had started taking trans-inclusive positions—but so had I, and I had never found it necessary to deny the facts of the female body, the science of sex differences, or common sense and experience. But at the hearing, its legal director did just that.

She was unequivocal that [t]rans women are women, period. By period she meant three things: (1) no discussion, (2) for all purposes, and (3) no connection to female biology required. At the time, the first two were emerging refrains, and progressive women’s organizations had already started shutting out those of us who wanted to be inclusive but also to talk about evidence-based exceptions. But the third—no connection to female biology required—was new, at least outside of academia and radical advocacy groups. It’s difficult to overstate its historical significance.

The Woman Question has a centuries-long pedigree. Before the trans rights movement got a hold of it, it had always been about separating what was true about the female sex from the social constructions that were designed to keep us down. Those were to be discarded, not the truth. Inside certain academic and advocacy circles you’d hear about the different journeys to womanhood but on the outside we hadn’t divorced what it means to be a woman from female biology. Indeed, to that point, for most people, transgender women and girls were transgender—and women if you were comfortable with that, as I was—precisely because of their physical transitions. It was revolutionary for a mainstream women’s rights organization to take an eraser to female biology as the linchpin to womanhood.

The NWLC’s legal director also repeatedly elided the difference between sex and gender, describing real sex differences as just fears and myths and stereotypes and invoking feminist icon Ruth Bader Ginsburg’s words and brand as she claimed this is not a way that we can make law and we do not create policy about myths and stereotypes. Ginsburg didn’t deny the reality of sex; she was all about distinguishing the facts from artifice. She didn’t call for sex blindness; to the contrary, her most famous opinion on the topic—United States v. Virginia (1996)—stands for dismantling structural sexism while expressly leaving room for the law to be sex-smart, including to celebrate sex as well as to use it to promote sex equality and to empower the citizenry. Denying facts and science is never a good idea whether that denial comes from the right or the left.

In the legal director’s concluding remarks, she invoked her organization’s influential brand to urge people who might have been confused about what was going on—and it was hard not to be—to trust the positions it was taking on H.R. 5 because, she said, we are the experts on what’s good for women. Here’s the quote in context:

This is what we do, day in and day out, across sectors, workplace, you know, healthcare. Workplace, justice, education, all of these areas, this is what we do is we fight for women’s rights. And so please look to us as the experts on whether or not this bill is good for women and LGBTQ people.

It was stunning not least in its apparent hubris and misogyny.

I never got the chance to respond that day, and H.R. 5 didn’t get through Congress, but 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 science and common experience. 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 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.

Three important notes before you dig in, about context, language, and the ever-shifting ground.

On context: I made my life in the United States, and the American experience with sex and gender is at the center of this book. But I’m also a dual national, and I work a lot with people abroad. This is because the issues I focus on—sex discrimination law, elite sports, and scientific research—aren’t constrained by national borders. Neither are the politics of sex and gender. On the one hand, trans-inclusive feminists have brought their cause into the world of international human rights; on the other, regressive authoritarian regimes have cracked down on LGBTQ rights and described their crusade as a fight for civilization. The fine points in any given country are undoubtedly different, but like sex and gender themselves, the themes are ubiquitous, as are the political arguments. I’ve worked to make this book accessible wherever you live.

On language: If you’re reading this, you already know that the words we use to talk about sex and gender are contested, starting with sex and gender themselves—but also woman and female, man and male, transgender, and so on. Because language—the words we have and how we define them—affects what we can communicate and what we understand, the people who run movements understandably want to control it. The left is much more aggressive and organized about this, but the effort is made on both sides. In this book, I try to define the words as I go and explain how I’m using them, but in general, my goal is neither to be disrespectful of nor to pander to one side or the other. Rather, it’s to speak freely and honestly; to communicate, not to obfuscate; and to reach people who want to learn and engage wherever they are.

On shifting ground: As I was writing this book, there wasn’t a day that passed without a news article, book, or policy development that affected what I would say or how I would say it. Among the most important events were two Supreme Court decisions interpreting federal law: the first protecting gay and trans people from employment discrimination, the second abolishing the federal constitutional right to abortion. But there were also challenges to the medical standard of care for treating trans kids; to the ways teachers can talk about sex and gender in schools; and to the ways words like sex and gender are used in legacy media. Even the way information about sex and gender is collected and made available changed with artificial intelligence (AI). ChatGPT stopped me for a day as I looked up words and realized that no matter how hard we try, communication in this space—which is already difficult—will become even more elusive going forward. The ground shifts, but as you’ll see in my first chapter, the basic facts are universal and timeless.

Part I

What Is Sex?

1

The Answer from Biology

CASTER SEMENYA OF SOUTH AFRICA is a two-time Olympic gold medalist and a three-time world champion at 800 meters. For a decade, from 2009 to 2019, she dominated this grueling two-lap race on the track in global competition. When she was healthy, she was unbeatable. As sport scientist Ross Tucker put it in 2016, There is no more certain gold medal in the Rio Olympics than Semenya. She could trip and fall, anywhere in the first lap, lose 20 [meters], and still win the race. Indeed, a headline afterward read Caster Semenya destroys rest of field to claim easy gold in women’s 800m final. A few years later, she herself said simply, I am the greatest that has ever done it.

No matter where you live, you’ve likely heard of Semenya. An Internet search brings up an astonishing amount of coverage in the world’s newspapers, and she’s been a particular favorite on Twitter (now X) and in academia. But the coverage is rarely about her sporting achievements or her remarkable dignity.

I come out of the world of track and field—athletics as it’s known outside of the United States—and the 800 meters was also my best event. I wasn’t a world or Olympic champion like Semenya, but I won three national championships and competed at the international level for several years. In 1983, I was in the race when Jarmila Kratochvilová of Czechoslovakia broke the still-standing world record. I’d love to be able to say that Kratochvilová and our other stars garner the attention Semenya receives, but we’re just not that popular.

Semenya is famous because she’s the global face of the cultural, political, and legal battle over the questions that are at the center of this book: What is sex? Is it about our male and female forms—including our reproductive biology—or is it now about something else? Is it still acceptable for governments and policymakers to use sex in this sense as a basis for regulation, or has biology ceased to matter any differently from, say, our height or our hair color? Semenya has come to represent these questions and the surrounding debates because, though her birth certificate reads female and she describes herself as a woman, she has, from the time she was a child, been perceived by others as male.

In a long profile of Semenya in the New Yorker in 2009, Ariel Levy shows that this was true of those in her village with whom she played football (soccer) as a child, as well as those against whom she competed on the track as a young teenager. As the trainer at her primary school explained to Levy:

[W]herever we go, whenever she made her first appearance, people were somehow gossiping, saying, ‘No, no, she is not a girl,’ Phineas Sako said, rubbing the gray stubble on his chin. ‘It looks like a boy’—that’s the right words—they used to say, ‘It looks like a boy.’ Some even asked me as a coach, and I would confirm: it’s a girl. At times, she’d get upset. But, eventually, she was just used to such things. Semenya became accustomed to visiting the bathroom with a member of a competing team so that they could look at her private parts and then get on with the race. They are doubting me, she would explain to her coaches, as she headed off the field toward the lavatory.

A 2009 article in the Guardian detailed that Semenya’s grandmother, Maphuti Sekgala, said Caster had been teased about her masculine appearance since the day she joined the village football team as the only girl and that Michael Seme, her coach, was well used to the commotion. He recalls stopping to use the facilities at a petrol station in Cape Town and as Semenya tried to enter the women’s toilets, she was stopped by the petrol attendants. As an adult, she has been described by black African people in African publications as having a masculine phenotype and man-like physical features.

As Semenya herself tells the story, the first time she met Violet Raseboya, the black woman who is now her wife, She thought I was a boy: We met in a restroom in 2007. She was a runner and was being escorted by doping officials. She said, ‘What is a boy doing in here?’ "

Despite what you may have heard, to code Semenya as male isn’t racist or ignorant, it’s the normal reaction to her face, voice, and body; to the way she holds herself; and to the way she moves. In competition, it’s also the reaction to her seemingly effortless power over the last 200 meters of a race. The video of her victory at the 2009 World Championships in Berlin is probably the best evidence of that different power. It was her first global competition and she was just eighteen. As she comes off the turn and into the final straightaway, she seems startled to have so easily left her competitors—the very best females on the planet—in the dust. In the end, she gapped the field by more than 20 meters.

Semenya has always chosen to dress and behave in a masculine way, and this reinforces the sense of her physical presence. For example, her primary school trainer, Phineas Sako—whom Levy described as a fluent but rough speaker of English—seems to have coded her as male in part for these reasons. Caster was very free when he is in the male company, Sako said. I remember one day I asked her, ‘Why are you always in the company of men?’ He said, ‘No, man, I don’t have something to say to girls, they talks nonsense. They are always out of order.’ The headmaster at her high school seems to have done the same: She was always rough and played with the boys. She liked soccer and she wore pants to school. She never wore a dress. It was only in Grade 11 that I realized she is a girl. When Semenya crossed the finish line at World’s in 2009, she flexed her arms for the photographers, and her masculine mannerisms along with her victory and her appearance became part of the story.

But Semenya’s physical presence is distinct from her gender expression. If you’ve ever been in a room with her you know she’s not a tomboy. In addition to her height, as Levy wrote in the New Yorker, Semenya is breathtakingly butch. Her torso is like the chest plate on a suit of armor. She has a strong jawline, and a build that slides straight from her ribs to her hips. Her voice is also surprising, Levy added: Semenya’s father, Jacob, has put it this way: ‘If you speak to her on the telephone, you might mistake her for a man.’ This last detail is often remarked upon. South African sportswriter Wesley Botton remembered that after her breakout performance in July 2009 in Mauritius, where she came out of the blue and ran 1.56, he tried to get hold of her and remember being very confused: She’s got such a deep voice, especially on the phone, I thought I was speaking to a man.

Because of how people react to Semenya, whenever she is sorted as female there are questions and sometimes there’s trouble. The trouble went global after she won the women’s 800 meters in Berlin. That a man appeared to have taken a world championship medal reserved for females set the world on fire, triggering first an official inquiry into her sex and, eventually, a battle not only within the Olympic movement but throughout society over how sex is defined and whether sports can legally continue to separate athletes in competition on that basis.

What Is Biological Sex?

Consider the physical attributes you process when you come upon someone you don’t know. At least subconsciously, one of them—and more than likely the very first one—is biological sex, the binary differentiation that we name male and female. Now consider the cues you use to identify someone as male or female. My guess is that you’ll be hard-pressed to isolate one particular attribute or reason and that you’ve decided almost instantaneously based on the whole person rather than any single thing. If you work to explain to yourself what it is that caused you immediately to think male or female, you’ll probably land on the same attributes that trigger the typical reaction to Semenya: the person’s head, face, and neck if you’re close enough to see them, or if you’re farther away, their whole body: its height and composition, how it takes up space, and how it moves. Depending on why you’re sizing them up, you might also have used these overt cues as proxies for other physical attributes: their