Much has been made of the statement, “I am not a biologist,” by aspiring Supreme Court justice Judge Ketanji Brown Jackson during her Senate Judiciary Committee hearing when asked “What is a woman?” This has obscured the far more important point that she did not feel empowered to provide an answer. That is because the terms “woman” and “man” seem now to occupy a semantic nether land between identity (biological sex) and persona (gender).
The irony here is both rich and irritating. Progressive culture has been quick to jump all over “cultural appropriation,” often in relatively trivial matters such as dress, casual language, or even Halloween costumes. Yet allowing gender to displace sex is arguably the ultimate form of appropriation. Unlike culture, ethnicity, and even race, biological sex is all but absolute and easily determined (very rare cases of genetic anomalies notwithstanding). Nothing can change the fact that females have two X chromosomes and males have an X and a Y, and certain physical realties flow from that difference.
By contrast, persona is at least partially elective, regardless of whether it is driven by a deep-seated psychological imperative, comfort, or simple preference. Claims such as “gender fluidity” eliminate any doubt about the presence of choice in gender. Even race and ethnicity are to some extent persona rather than identity. As many millions have learned by sending their DNA to sequencing services such as “23 and Me,” our genetic identity is often a stew of different racial, historical, and geographic elements. We then characterize ourselves based upon a perceived dominant genetic strain, our appearance, our affinities, or even family legends. That leaves considerable leeway for choice. Massachusetts Democratic Sen. Elizabeth Warren demonstrated this vividly by claiming a Native American persona despite a laughably tiny and murky genetic component. She adopted a persona (perhaps for mercenary reasons) with little connection to her genetic identity.
But is persona versus identity only semantic hair splitting? Unfortunately, the semantics of identity are integral to our body of law, regulations, and rules. We have the Civil Rights Act of 1964 that relies on identity to define “protected classes,” and the text refers to “race, color, religion, sex, and national origin.” The Civil Rights Act of 1972 Title IX assures equal treatment in education “on the basis of sex.” Subsequent interpretations have added expansions to “sex” such as “sexual orientation” and “gender,” thus transforming the acts into protection for a persona, generally without any legislative validation except a few acts such as California Assembly Bill 1266. For the most part, these expansions are by executive fiat for which popular support is not truly known.
In effect, this has empowered individuals to select the protections or restrictions applied to them, thus rendering the relevant statutes as mere tools to be exploited. Sports is the battleground de jour, as transgender athletes attack the original intent of sheltering female sports from male intrusion to create what is a sex-affiliated level playing field. The ambiguity of the term “women’s sports” is often cited as evidence of a broader intent, although that argument is circular. Yet there was (and remains) a compelling reason that biology was the intended differentiator. Males are inherently stronger than females even if not every male is superior to every female. It’s no wonder that transgender women are setting world records in weightlifting and dominating swimming, for example.
This is just one example of a class of conflicts among rights introduced by the substitution of persona for identity. Whose self-actualization matters more, the transgender athlete’s or the cis-gender competitor who has the same aspirations but feels thwarted? Can a transgender woman demand assignment to a prison populated with females because it comports with a self-image or personal psyche, even though it may result in sexual assaults on female inmates who have the right to safety? (Yes, at least in California.)
Conflicts will proliferate as persona is allowed to replace identity. Can a person with 5% Asian, or Jewish, or African genes claim minority protection or benefits because they embrace this small genetic content as their persona? Is a dark-skinned Italian able to claim protection under the “color” standard of the Civil Rights Act? Why not consign Sen. Warren to the legal jurisdiction of the Cherokee Nation?
The most logical approach to these conflicts is to focus on the individual and to assure equal opportunity as the guiding principle rather than relying on identity or persona. Of course, that contradicts the progressive concept of “equity,” which depends so heavily on identity while simultaneously perverting it by accepting elective personae instead. It is no wonder that equity provokes intense hostility among many, as it is at odds with 250 years of American principles and uses elective personae to exploit legal and procedural frameworks.
The absence of some discussion along these lines from Judge Jackson was a disappointment, as was the failure of senators to get beyond the ambiguity of “woman.” She did not need to be a biologist to engage on the legal challenges our system of government and regulation faces today.
Andrew I. Fillat spent his career in technology venture capital and information technology companies. He is also the co-inventor of relational databases.