"What is a Woman" (+ a 18th Century LGBTQ dispute)

I was checking C-SPAN and there was a segment entitled Agustín Fuentes, "Sex is a Spectrum - The Biological Limits of the Binary."  The guest was asked about Justice Jackson refusing a request to define "woman" because she was not a biologist. 

The person said this was mistaken. His answer noted that biology was a factor in determining the term. Ultimately, however, it was a cultural term.

Justice Blackburn, as is her wont in such hearings, was doing some trolling. Jackson, amid a lot of questioning, started her answer to the specific comment by laughing it off, saying she was not a biologist. Biological factors are involved here.

[I tried to find a full transcript, there being ones around, but could not find it. The video is out there.]

Judge (as she was then) Jackson, however, did not stop there. She added:

“Senator, in my work as a judge, what I do is I address disputes,” Jackson said. “If there’s a dispute about a definition, people make arguments and I look at the law and I decide. So I’m not —”

YES! The question in the context she will handle is legal. One damn throwaway comment should not determine our response, even if trolls LOVE (I have seen it) to sneer at it. 

Ditto Sotomayor's "wise Latina" remark. We can try not to be moronic children. I use that qualifier since many children are intelligent and are able to use nuance. For instance, many realize grandparents marry, even though they can't have children anymore. 

The term "woman" is a complicated legal term. 

In many of those cases, the courts did not limit the meaning of “sex” to genetic or anatomical characteristics present at birth or even to physical characteristics associated with gender generally. Instead, the circuit courts indicated that discrimination on the basis of a number of sex or gender-related characteristics, real or perceived, constituted unlawful sex discrimination.

See also a discussion of international law:

I argue the term “woman” as used in CEDAW means all of the above: biological, anatomical, genetic, gender performance, and/or gender identity—meaning any of the listed categories standing alone would be sufficient as would a combination of two or more categories. 

The legal definition of "woman" was relevant when same sex marriage was not a constitutional right. Different states treated trans people differently. A "woman" for marriage purposes might turn on chromosomes, what you were assigned at birth, or your status after a sex change operation. 

Jackson's off-the-cuff statement about not being a biologist was just that. It was not a carefully thought-out reply. It was a bemused statement that was part of a wider discussion. She ultimately (correctly) noted it was a legal matter.

The legal definition of a woman doesn't just turn on certain anatomy. Some people ridiculed the dispute. 

Duh, it depended on whether you have a penis. What about intersex people? One person was annoyed that I used "person" to talk about abortions (non-binary, intersex, trans), acknowledged the presence of intersex persons. They still wanted two boxes. So, what's the dividing line? 

Biology will factor in. Ultimately, she will apply legal definitions. There are disputes on the definition. She will have to look at the material and make a legal judgment. If the law includes a "third sex" (or more), as many cultures have over the years, that would factor in.  Sorry if it seems so hard, Senator.   

Vicious and Immoral: Homosexuality, the American Revolution, and the Trials of Robert Newburgh

Somewhat related, I read a book about a dispute arising from rumors that a British army chaplain committed "buggery" in the 18th Century.  

The book was interesting in various respects, but the whole thing was also convoluted. It dragged out for years and ended inconclusively. He spent a few more years as an army chaplain and then spent another 45 years in private life, largely in obscurity.  

I was not totally convinced by some of the attempts to connect the whole thing to the American Revolution. The book also probably could have been notably shorter. The disputes got to be tedious. 

The book is somewhat shorter than it looks since it has large margins. I read over half of it today.  

It was still a fascinating look into another era, including the mixed reaction to the allegations. A large part of the controversy was that the clergyman was seen as not properly masculine. His colorful outfit really pissed off one of his accusers.  

The book is by a historian who is openly gay.