Debates about transgender rights and policies, such as the participation of transgender athletes in girls’ and women’s sports or the accessibility of gender-affirming care for transgender minors, are becoming increasingly prominent in the American legal landscape. These contentious issues are the focus of ongoing litigation throughout the United States which are anticipated to eventually be deliberated in the US Supreme Court.
Key legislation pertinent to these discussions include Title VII, concerning employment, and Title IX, dealing with federally funded educational programs. Both prohibit discrimination on the basis of ‘sex’, hence the need for legal clarity on exactly what ‘sex’ entails.
In her recently released book, “On Sex and Gender: A Commonsense Approach”, Duke Law School professor Doriane Coleman steers the discourse. She suggests a reassessment of traditional understandings of ‘sex’ while critiquing moves to entirely replace the notion of biological sex with gender. Rather, she propounds taking a ‘sex-smart’ approach in developing policies and laws, factoring in research-backed sex-based differences.
Professor Coleman exemplifies this stance through the more contentious arenas of transgender athlete participation and gender-affirming care for transgender youth. She believes that policy makers need to examine each sports program or healthcare institution individually, based on their specific goals and on how much sex differences truly matter in meeting those goals. For example, Professor Coleman contends that while it may not be fair to allow a male-bodied adolescent compete for statewide female sports championships, there are potentially lesser issues when it comes to an after-school sports club primarily focused on enhancing physical fitness and inculcating teamwork. Gender-affirming care, she argues, should be evidence-based, child-focused, and compassionate, eschewing both outright bans and blanket prescription of hormones or surgery.
Despite her balanced, evidence-backed views, Coleman has been accused of being anti-trans or denying the existence of transgender women, an assertion she denies. Many of her positions, such as protecting transgender employees against discrimination, supporting the rights of transgender adults to access gender-affirming care, and preferring the use of preferred pronouns among transgender individuals, directly contradict such accusations. This again emphasizes the need for a nuanced understanding of complex matters such as sex and gender in law in order to make meaningful progress amidst an environment steeped in polemics.
For a more detailed insight into Professor Coleman’s work, her interview and subsequent discussion with lawyer and writer David Lat can be found on his blog, Original Jurisdiction.
The original column by David Lat providing this analysis and outlook on the topic, can be found here.