The Refusal to Define Biological Sex Helps No One

A mericans overwhelmingly think that the pay gap, when explained as women making 82 cents on the dollar compared with men, is unfair. It turns out to be more complicated, though, because the supposed pay differences morph tremendously when you control for occupation, experience, education, hours worked, and so on. But one piece is not complicated: Who we’re talking about when we say “women.”

We must define “women” if we hope to understand what’s happening in the workplace and do something about it. Are women being discriminated against? Are there social factors at play, like women choosing jobs with flexibility? How does motherhood affect hours worked, career choice, and pay? Answering these questions requires a fixed definition of “woman” based on biology.

And yet, necessary definitions of female and male have caused journalists nationwide to launch outrageous and false attacks on the “Women’s Bill of Rights” making its way through state legislatures. “Journalists” say that, by clarifying the legal definition of “women,” legislators are “erasing trans people” and depriving them of the ability to live authentically. What’s more, they equate definitions of “woman” and “female” with bathroom bills that prohibit people from ever using a restroom. Nothing could be further from the truth.

The Women’s Bill of Rights model legislation was created by Independent Women’s Voice in conjunction with Women’s Liberation Front and with the support of women’s groups from across the political spectrum. It seeks to accomplish three goals, all of which should be uncontroversial. First, it defines certain sex-based terms — such as “man,” “woman,” “male,” and “female” — for purposes of state law. Second, it reiterates the well-established legal principle that the government may sometimes distinguish and separate females from males, whether it be to protect privacy, maintain safety, fight discrimination, or advance fairness and equal opportunity. Third, it requires the accuracy of publicly collected data related to males and females, such as whether women are more common victims of rape. 

Quite simply, the definitions section is a provision enhancing democracy and promoting transparency. Consider our initial discussion of male–female pay differentials: How can we possibly have a rational discussion about the pay gap if we cannot clearly define the data set? At the state level, the definitions affect policy development and implementation. If a state legislature decides to create and fund a “women’s prison,” then incarcerated women should be able to expect that they will not be housed with men. Of course, the legislature need not have an all-women’s prison. But if it chooses to have one, it shouldn’t allow males to gain unfettered access simply by asserting that they are women with no questions asked.

Journalists looking to sensationalize something so sensible, for personal or political gain, breathlessly report that the Women’s Bill of Rights seeks to strip rights from “LGBTQ+ individuals.”

Now, it’s true that the Women’s Bill of Rights ensures that males are not legally classified as females. But this isn’t a change in law. It reiterates broadly agreed-upon rules of language and statutory construction, thereby curtailing judges and bureaucrats who want to go rogue. These language-based rules do not and cannot affect anyone’s rights. Clear sex-based terminology does not entirely preclude the possibility for gender identification. Just because “woman” and “female” are words that must be applied consistent with biology does not mean, for example, that a state cannot pass legislation allowing people to add a gender-identity marker to their driver’s licenses. Of course, a shared understanding of “woman” still permits and empowers research on how males who identify as women (or anything else) face discrimination or make certain choices.

And that brings me to the next big lie, in which journalists insinuate that the Women’s Bill of Rights is a “bathroom bill.” It’s unclear what they even mean by this, as the legislation itself has no enforcement mechanism, meaning that no one can sue or otherwise use the bill as a means to punish a bathroom-goer (even one who uses the restroom in accordance with preferred gender rather than sex). Moreover, the legislation defines “woman” where it appears in state laws and policies, not on door signs and not within private businesses such as restaurants. And finally, the bill doesn’t mandate that the government offer any particular type of bathroom. If a public entity chooses to offer only coed public restrooms, like those frequently found in Europe, it is free to do so.

But, of course, the journalistic attacks on the Women’s Bill of Rights are not rooted in truth. They are hit pieces planted to sow division and animosity, attempting to block commonsense legislation that people across the political spectrum can and do support. Truthfully, the Women’s Bill of Rights defines and therefore permits the protection of women in the way that women have been defined and protected for ages. It does not solve all the problems women face, and policy disagreements in that space will never face shortage. But conversations about policies that promote equality require us to have the terminology for describing the two sexes.