//  11/18/19  //  Commentary

This post is authored by Scott Skinner-Thompson, an associate professor at the University of Colorado Law School.

This week marks Transgender Awareness Week, providing a good opportunity for lawyers and advocates to examine the ways in which our practices, rhetoric, and arguments can be more inclusive and affirming of gender and sexual minorities. That includes our words:  How we talk about something shapes how we think about it.  Our rhetoric goes a long way toward constructing views, norms, and lived experience.  Words can include, exclude, or ignore, particularly when talking about the law.  And when it comes to talking about queer rights, we still have some work to do in terms of training ourselves, society, and lawmakers about sexual and gender identities. 

The recent Supreme Court arguments regarding whether federal law prohibits employment discrimination on the basis of sexual orientation or gender identity demonstrates the sometimes narrow ways in which sexual identities are framed—and provides an opportunity for further education.  The consolidated oral arguments in Bostock v. Clayton County, Altitude Express v. Zarda, and Harris Funeral Homes v. EEOC contained several examples of justices constructing queer identities in limited, binary ways. 

For instance, several participants including Justice Sonia Sotomayor referred to men and women as “opposite sex.”  The use of this phrase is widespread—and I have used it, too.  But that construction suggests that women and men are in some way the reverse or flip-side of one another—in tension.  As queer theorist Eve Sedgwick argued, “no matter what cultural construction, women and men are more like each other than chalk is like cheese.”  That is, while gender is far from irrelevant, the fact that people may have different gender identities or varying sex-related characteristics also doesn’t make them completely opposite of another person. 

Moreover, the phrase “opposite sex” reinforces the gender binary—the idea that there are just two sexes (which are reverse of each other) and nothing else.  Of course, many people do not fit neatly into the constructed categories of “male” or “female,” and are gender non-conforming, non-binary, or intersex, as different governments are beginning to recognize (including by expanding the options on government identification documents).  Referring to people as being of “different” sexes (or, perhaps better yet, possessing different sex-related characteristics)—instead of opposite sexes—more fully captures the range of identities and avoids setting up people’s identities in an oppositional manner. 

Similarly, at least one justice referred to people as “transgendered” instead of using the adjective “transgender.”  This language is problematic because it transforms an adjective (transgender) into a defining noun and makes the individual sound "like they're something else first and a person second."    The same holds true for Justice Stephen Breyer’s reference to “the gays,” which has the added effect of making people who are gay sound like a monolithic “other.” 

For these reasons, progressive advocates have adopted a people-centered or person-first approach when talking about groups with a particular characteristic—referring to people living with HIV (PLWH), people who inject drugs (PWID), or people with disabilities instead of, for example, “the disabled.”  Such a framing emphasizes an individual’s humanity first and foremost and, in these examples, does not define them by a single characteristic. 

As a final example, several participants, including Chief Justice John Roberts, referred to individuals’ so-called “biological sex” when discussing the dissonance between a transgender individual’s gender identity and the sex they were assigned at birth.  Such references are imprecise because “sex-related characteristics include external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics [such as body hair,] genes” and hormones.  Put differently, “biological sex” is not one single thing, and many people have sex-related characteristics that do not align with a single gender.  Accordingly, as ACLU attorney David Cole tried to educate the Court, the more appropriate way to refer to the administrative classification corresponding to the beginning of a person’s life is to refer to the sex they were assigned at birth.  

To be clear, we all make mistakes in how we talk about different issues. I know I do.  Each of us has varying degrees of relative knowledge and unfamiliarity when it comes to certain important social topics.  So my critique of the ways in which queer identities—and identities writ large—were discussed at the oral argument isn’t intended as heavy handed. Instead it’s an occasion to reflect on the subtle but significant ways we talk about queer rights and how our language may be honed to better capture the beautiful range of our humanity.

This post is authored by Scott Skinner-Thompson, an associate professor at the University of Colorado Law School.


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