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An Important Distinction

Aspiring Supreme Court Justice Judge Ketanji Brown Jackson attracted much attention during her Senate Judiciary Committee hearing with her answer to the question, “What is a woman?” with her reply, “I am not a biologist.” That she did not feel empowered to provide an answer is concerning for one certain to be called on to engage on the legal challenges our system of governance and regulation faces today.

The terms “woman” and “man” have come to occupy a semantic nether land between identity (biologic sex) and persona (gender). The irony is that progressive culture is quick to criticize “cultural appropriation”. Trivial matters such as dress, casual language, Halloween costumes to more significant issues such as ethnic restaurants operated by individuals not belonging to the same cultural traditions as their food.

Yet, allowing gender to displace sex is the ultimate form of appropriation. Unlike culture, ethnicity, and even race, biological sex is absolute and easily determined (rare cases of genetic anomalies notwithstanding). Females have two X chromosomes; males have an X and a Y and certain physical realties flow from that difference. That fact is unchangeable. One cannot choose differently. That defines identity.

Persona is elective. Claims of “gender fluidity” demonstrate the presence of choice in gender. Even race and ethnicity are to some extent persona rather than identity. Sequencing services such as “23 and Me” demonstrate our genetic identity to be a stew of different racial, historical, and geographic elements. Often, we characterize ourselves based on the perceived dominant genetic strain, our appearance, our affinities or even family legends.

This leaves considerable leeway for choice. Massachusetts Sen. Elizabeth Warren established this by claiming a Native American persona despite a tiny genetic component. She adopted a persona with little connection to her genetic identity.

But choices of persona have legal consequences which Judge Jackson will need to address. When the Civil Rights act of 1964 defined protected classes of race, color, religion, sex, and national origin – the framers relied on identity. The Civil Rights act of 1972 Title IX assured equal treatment in education based on sex. The definition’s intention was identity.

It is more than semantics. Because subsequent interpretations have expanded “sex” to include “sexual orientation” and “gender” that transform these acts into protection for a persona. This has been done without legislative validation. Rather, executive fiat created policy for which popular support is not truly known.

This has empowered individuals to select the protections applied to them, rendering the relevant statues as tools to be exploited. This creates tension between the original protected class and those who appropriate that status. It is a conflict Judge Jackson and others will need to address.

An obvious example would be sports. Transgender athletes attack the original intent of sheltering female sports from male intrusion to provide a level field of competition. Males are inherently stronger than females even if not every male is superior to every female. This is demonstrated as transgender women set world records in weightlifting and dominate swimming.

There are other examples of conflicts arising from the substitution of persona for identity. When a transgender woman demands assignment to a prison populated with females because it comports with a self-image, it may result in sexual assaults on female inmates who have the right to safety.

Can a person with 5% American Indian, Jewish, or African genes claim protection or benefits because they embrace this small genetic content as their persona? Programs or scholarships intended to assist historically marginalized groups become less meaningful.

The conundrum we have created then is this. While our worthy concept of equity depends heavily on identity, we have simultaneously perverted it by accepting elective persona instead. This is the reason discussions of equity provokes suspicion or hostility in some. It is at odds with 250 years of American principles.

The answer is to focus on the individual and to assure equal opportunity as the guiding principle rather than relying on identity or persona. Meanwhile, our senators and judges better sort out in their own mind what it means to be a woman. They need not be a biologist to engage on the legal and regulatory challenges they face.

Tim Powell MD

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