Lesson Three - Gender, Sex, and Sexuality

Making Connections: Policy & Debate

The Legalese of Sex and Gender

The terms sex and gender< have not always been differentiated in the English language. It was not until the 1950s that American and British psychologists and other professionals working with intersex and transsexual patients formally began distinguishing between sex and gender. Since then, psychological and physiological professionals have increasingly used the term gender (Moi 2005). By the end of the 2oth century, expanding the proper usage of the term gender to everyday language became more challenging—particularly where legal language is concerned. In an effort to clarify usage of the terms sex and gender, U.S. Supreme Court Justice Antonin Scalia wrote in a 1994 briefing, “The word gender has acquired the new and useful connotation of cultural or attitudinal characteristics (as opposed to physical characteristics) distinctive to the sexes. That is to say, gender is to sex as feminine is to female and masculine is to male” (J.E.B. v. Alabama, 144 S. Ct. 1436 [1994]). Supreme Court Justice Ruth Bader Ginsburg had a different take, however. Viewing the words as synonymous, she freely swapped them in her briefings so as to avoid having the word “sex” pop up too often. It is thought that her secretary supported this practice by suggestions to Ginsberg that “those nine men” (the other Supreme Court justices), “hear that word and their first association is not the way you want them to be thinking” (Case 1995).

In Canada, there has not been the same formal deliberations on the legal meanings of sex and gender. The distinction between sex as a physiological attribute  and gender as social attribute has been used without controversy. However, things can get a little tricky when biological “sex” is regarded as simply a natural fact, especially in the case of transsexuals (Cowan 2005).  For example, in British Columbia, people who have surgery to change their anatomical sex can apply through the provisions of the Vital Statistics Act to have their birth certificate changed to reflect their post-operative sex. If  a person was born male, does this mean that after surgery that person is fully regarded as a female in the eyes of the law though? In the 2002 case of Nixon v. Vancouver Rape Relief Society, a male to female transsexual, Kimberly Nixon brought an application to the B.C. Human Rights Tribunal that she had been discriminated against by the Vancouver Rape Relief Society (VRR) when her application to volunteer as a helper was rejected. The controversy was not over whether Kimberly was a woman, but whether she was woman enough for the position. VRR argued that as Kimberly had not grown up as a woman, she did not have the requisite lived experience as a woman in patriarchal society to counsel women rape victims. The B.C. Human Rights Tribunal ruled against VRR, finding that they had discriminated against Kimberly as a transsexual. The ruling was overturned by the Supreme Court of British Columbia, which argued that the Act ‘‘did not address all the potential legal consequences of sex reassignment surgery’’ (Cowan 2005, p. 87). The court acknowledged that the meaning of both sex and gender vary in different contexts. The case is currently under appeal.

These legal issues reveal that even human experience that is assumed to be biological and personal (such as our self-perception and behaviour) is actually a socially defined variable by culture. The question of “what makes a woman” in the case of Nixon v. Vancouver Rape Relief Society is a matter of legal decision making as much as it is a matter of biology or lived experience.