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The legalese of sex and gender

The terms sex and gender have not always been differentiated in the English language. It was not until the 1950s that U.S. and British psychologists and other professionals working with intersex and transsexual patients formally began distinguishing between sex and gender. Since then, psychological and physiological professionals have increasingly used the term gender (Moi 2005). By the end of the twenty-first century, expanding the proper usage of the term gender to everyday language became more challenging—particularly where legal language is concerned. In an effort to clarify usage of the terms sex and gender , U.S. Supreme Court Justice Antonin Scalia wrote in a 1994 briefing, “The word gender has acquired the new and useful connotation of cultural or attitudinal characteristics (as opposed to physical characteristics) distinctive to the sexes. That is to say, gender is to sex as feminine is to female and masculine is to male” ( J.E.B. v. Alabama , 144 S. Ct. 1436 [1994]). Supreme Court Justice Ruth Bader Ginsburg had a different take, however. Viewing the words as synonymous, she freely swapped them in her briefings so as to avoid having the word “sex” pop up too often. It is thought that her secretary supported this practice by suggestions to Ginsberg that “those nine men” (the other Supreme Court justices), “hear that word and their first association is not the way you want them to be thinking” (Case 1995). This anecdote reveals that both sex and gender are actually socially defined variables whose definitions change over time.

Sexual orientation

A person’s sexual orientation    is his or her physical, mental, emotional, and sexual attraction to a particular sex (male or female). Sexual orientation is typically divided into four categories: heterosexuality , the attraction to individuals of the other sex; homosexuality , the attraction to individuals of the same sex; bisexuality , the attraction to individuals of either sex; and asexuality , no attraction to either sex. Heterosexuals and homosexuals may also be referred to informally as “straight” and “gay,” respectively. The United States is a heteronormative society , meaning it assumes sexual orientation is biologically determined and unambiguous. Consider that homosexuals are often asked, “When did you know you were gay?” but heterosexuals are rarely asked, “When did you know that you were straight?” (Ryle 2011).

According to current scientific understanding, individuals are usually aware of their sexual orientation between middle childhood and early adolescence (American Psychological Association 2008). They do not have to participate in sexual activity to be aware of these emotional, romantic, and physical attractions; people can be celibate and still recognize their sexual orientation. Homosexual women (also referred to as lesbians), homosexual men (also referred to as gays), and bisexuals of both genders may have very different experiences of discovering and accepting their sexual orientation. At the point of puberty, some may be able to announce their sexual orientations, while others may be unready or unwilling to make their homosexuality or bisexuality known since it goes against U.S. society’s historical norms (APA 2008).

Questions & Answers

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Source:  OpenStax, Introduction to sociology 2e. OpenStax CNX. Jan 20, 2016 Download for free at http://legacy.cnx.org/content/col11762/1.6
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