Complex Sex and Court Neutrality

By Prof. Shirley Lin of New York University School of Law

Editors' Note:In two previous posts, Professor Lin wrote about the dignitary interests foregrounded in the statutory interpretation and causation issues in the trio of cases addressing Title VII and gender identity and sexual orientation pending before the Supreme Court.

The essence of Title VII is that employers are uniquely positioned in our society to inflict severe economic and psychological harm as a form of social control. This is no less true today than in the Civil Rights Act’s passage in 1964. But by spending considerable time on bathroom and dress codes during last Fall’s arguments in Harris Funeral Homes and the consolidated Zarda and Bostock cases, the Court’s justices implicitly demonstrated confusion about self-identified sex, whether “biological sex” is solely defined by anatomy, and whether the discomfort of others can veto equality at work.

Answering the third: there is no “heckler’s veto” within Title VII law, and America’s history of race discrimination and segregation have made this clear. Nor can Title VII be warped so far as to allow employers to determine our sincerely held sex or gender identity for us. But that is exactly what the defendant funeral home sought to do in Aimee Stephens’ case, and the Court’s inquiries seem to imply. And a ruling against the employees here would be an egregious blow to the legitimacy of the Court.

The fact of sex’s complexity is reflected in dictionary definitions’ use of the word “properties” of the socially constructed trait and “typical” connotations. Sexual variation beyond a fixed binary view was amply acknowledged in medical and social science literature by mid-century. Since the 1960s, U.S. medical experts in developmental sexology have considered several non-exclusive criteria in determining sex including: (1) genetic or chromosomal sex; (2) gonadal sex; (3) internal morphologic sex; (4) external morphologic sex; (5) hormonal sex; (6) phenotypic sex; (7) assigned sex/gender of rearing; and (8) “self-identified sex” (i.e., gender identity). Thus, for millions of individuals and the medical community, sex cannot be deemed only biologically external, immutable, or dimorphic.

The complexity of sex was documented within the United States throughout the first eight decades of the twentieth century, reflecting earlier understanding that gender identity is a major determinant of one’s sex. Prominent stories include Christine Jorgensen, who returned from successful sex reassignment surgery in Denmark and caused a “media sensation” in 1953. By the 1940s, the term “transsexual” appeared in American medical discourse. The idea that sex is mutable became conventional medical advice by the 1950s. Dr. Harry Benjamin further popularized the term transsexual during this time as the published his seminal text, The Transsexual Phenomenon, in 1966. Although wide surveys did not exist until recently, the size of the adult U.S. transgender-identified population is currently about 1.4 million, with a recent federal study estimating that approximately 1.8% of all high school students identify as transgender, and an additional 1.6% have responded that they were unsure. (For additional reading, I recommend the amicus brief in support of the employees filed by Law & History Professors.)

Natural sexual variation by the 1950s was also admittedly more complex than binary male or female, and thus a legal definition of “sex” should not foreclose the existence of non-binary individuals. A comprehensive survey of medical literature from 1955 to 2000 concluded that “[b]iologists and medical scientists recognize . . . that absolute dimorphism is a Platonic ideal not actually achieved in the natural world.” For example, the frequency of intersexuality is approximately 1.7% of live births, or millions of Americans at any point in the last half-century. (For additional reading, I recommend the amicus brief in support of the employees filed by InterACT: Advocates for Intersex Youth and expert amici.)

Arguments that original public meaning or original legislative intent should drive interpretation of Title VII must not only overcome issues with collective attribution when actual experiences and opinions are diffuse. This alone could end the debate. But they must contend also with scientific and public knowledge at the time regarding considerable sexual variation. Rather than “updating” statutory construction with twenty-first century meanings of “sex,” what a tidal wave of lower courts has done since 2015 is acknowledge existing complexity and typographies that serve as functions of sex. By so doing, these courts have rejected the inaccurately narrow “biological-as-anatomical” view of sex as not neutral.

As an arm of the State, the Court must focus on its actual task of determining the scope of the social trait of “sex,” and avoid the harm of imposing its own close-ended concept of sex. As to sexual orientation, the Court acknowledged in Obergefell v. Hodges that laws targeting homosexuality “put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” The political branches continue to engage in variable and oppositional politics regarding sex. Currently, the Trump Administration’s policies seek to rescind gender identity and sexual orientation from federal non-discrimination protections, while states and localities expand their laws and policies memorializing such protections or defining sex and gender even more broadly, and offering non-binary or third sex markers, and other policies.

It is not only up to litigants and civil rights counsel who have tirelessly raised these points to give our dignitary interests their meaning. We must do our part to engage in these conversations and address these misconceptions and biases within our own communities also.