What is the social construction of gender?
Imagine if you were a visitor from another planet and someone handed you a $100 bill. Would you recognize it as a gift? As money? How would you know if it was worth a large or a small amount?
The meaning we assign to objects, people, and events as a society is also known as social constructionism. By comparing different societies, we can see that what we think of as objective reality is often socially constructed. A visitor from another planet is unlikely to understand our money until we explain it. What makes money valuable is our collective belief that it is.
Most scholars believe that some portion of our understanding of gender is socially constructed. That is, as a society we have created gender roles that we agree on and perceive as “real,” despite them not being based on objective differences between women and men.
There is significant evidence supporting the idea that gender is at least partially socially constructed. Comparing men and women across the globe today, we can see that what is considered masculine or feminine is not universally accepted. Men, for example, in some areas of the world wear what would be considered dresses and therefore unacceptable in other areas. Men kissing and holding hands with each p. 95↵other is part of expected interaction in some countries, while in others it is viewed as feminine. Even in the United States, over time we have seen drastic changes in gendered expectations, with women entering the workforce and men spending more time parenting.
In the 1960s, as feminist movements started to take shape, researchers began to explore the ways in which male and female children were raised. They made what would today be considered a not very surprising discovery—that adults treat children differently based on their gender. Adults in their studies used more sex-stereotyped toys with girls and bought boys more toys that elicit competence. They treated girls more gently and punished boys more physically. They allowed boys more freedom to roam. Adults also perceived children’s emotions differently based on their gender. In one study, participants were shown a video of a baby playing with a jack-in-the-box. Those who were told that the baby was male were more likely to describe the baby’s reactions as “angry” and those who were told that the baby was female were more likely to describe the same reactions as “fearful.”
While most people would agree that society has at least some influence on gender roles, there are those who go even further, arguing that gender is a completely social construct—that male and female bodies are different, but the meaning assigned to them stems from society. One of the best known of the social constructionists is Judith Butler, a feminist philosopher who opposes the idea of “core” traits of particular genders. Instead, she proposes that, as a society, we continuously recreate gender roles by performing them and that the categories “men” and “women” would not exist without this performance. A common misunderstanding of Butler is that gender performance is similar to acting in a play and that we can therefore easily throw off the oppressive chains of our assigned genders by simply dressing or behaving differently. Instead, Butler is arguing that our repetition of gendered p. 96↵performances is part of our societal construction of gender and a loop we are all stuck in, in some way or another.
Do some cultures have more than two gender options?
In many countries today there is growing visibility and conversation around nonbinary gender identities. In 2016 Oregon resident Jamie Shupe became the first U.S. citizen to be legally recognized as nonbinary, with many following in Jamie’s footsteps and legally updating their legal gender markers from “M” or “F” to “X” or “Unknown.”
Some individuals have gender identities that lie between the boundaries of “man” and “woman.” Many of these individuals would be categorized under the umbrella term transgender and may use language like nonbinary, genderfluid, agender, genderqueer, bigender, or gender nonconforming. In 2014, Facebook began allowing users to choose among 58 defined genders, with many other social media networks and online dating sites following their lead. Today, many university applications have options for gender identities that fall beyond male and female. There are third gender or “other” gender options for some local government records, as well as for many organizations and programs providing social services and aid. However, while there is increasing accessibility for an individual to change their legal gender from male to female or female to male, at the time of this writing it is still difficult if not impossible in most U.S. states to legally be recognized as a third gender.
Despite legal hurdles, there is an undeniable growing conversation and acceptance of gender diversity. Schools and social service agencies are urged to be mindful of inclusion of nonbinary identities, based in large part in evidence of the psychological and educational roadblocks associated with disregard of such vital aspects of personhood. But there are those too who stand in fierce opposition to policy change that would increase acknowledgment of nonbinary and intersex p. 97↵individuals (those who are born with bodies not considered either completely male or female). Objectors may have religious or political doubts regarding the legitimacy and realness of such identities. Pathologized, nonbinary and intersex bodies are often seen as defective, and gender identities invisible to the human eye continue to be regarded with skepticism and doubt. Others have voiced concern that seeking legal gender reassignment could make someone more difficult to trace or track, and could increase the potential for identity fraud or evading a warrant or search.
While it is true that creating a legal record of transgender and nonbinary people who fall outside the traditional binary necessitates a major overhaul in systems (and social awareness), volumes of evidence indicate that individuals with genders apart from “male” and “female” have existed throughout time and across the globe. Some of our oldest records, gleamed from ancient Egyptian pottery created between 2000 and 1800 bce, depict three distinct genders: tai (male), sḫt (sekhet), and hmt (female). In Mesopotamian mythology, among the earliest written records of humanity, there are references to types of people who are neither male nor female. Plato’s Symposium, written around the 4th century bce, details a creation myth involving three original sexes: female, male, and androgynous. Rabbi Elliot Kukla, who studies religious scripture and gender, has commented on the existence of six distinct genders referenced in ancient religious texts. Kulka finds the word androgynos, referring to a person with both male and female sex characteristics, used 149 times in the Mishna and Talmud (1st–8th centuries ce) and 350 times in classical midrash and Jewish law codes (2nd–16th centuries ce).
The term Two Spirit is a phrase that has been adopted to identify a range of nonbinary identities existing across over 150 indigenous tribes of North America. Two Spirit individuals were those thought to possess the qualities of the sun and the moon, man and woman, and were sometimes elevated in social class and function. Some considered them gifted in p. 98↵their ability to understand multiple elements of community life and culture. Algonquian, Navajo, Lakota, and Ojibwe languages have multiple words used to identify individuals with distinct gender identities. This includes the Navajo identity of nádleeh, referring to an “effeminate male” or someone who is “half woman, half man,” and the Lakota wíŋkte, who hold a separate social category in Lakota culture. Wíŋkte are generally thought of as male-bodied people who adopt the clothing, work, and mannerisms that Lakota culture usually consider feminine. While historical accounts of their status vary widely, most accounts see the wíŋkte as full members of the community, not marginalized or ostracized. Other accounts hold the wíŋkte as sacred, occupying a liminal, third gender role in the culture and born to fulfill ceremonial roles that cannot be filled by either men or women.
In the Zapotec communities of Oaxaca, Mexico, muxes are a third gender of individuals who exist outside of the gender binary. Muxes are typically assigned male at birth and identify with a more feminine gender identity or exist wholly outside the male–female binary. One 1974 study estimated that 6% of those assigned male at birth in an Isthmus Zapotec community were muxe. Muxes hold different social roles than the men and women in their communities, serving distinct and vital positions in family life, elder care, and within the arts. Anthropologists believe the acceptance of people of mixed gender can be traced to pre-Columbian Mexico, where accounts exist of Aztec priests and Mayan gods who wore mixed gender garments and were considered and revered as both male and female. Since the 1970s, Oaxaca holds an annual festival, Vela de las Intrepidas, in their honor.
In Native Hawaiian communities, Māhū describes an individual who embodies both male and female spirits equally. In the precolonial history of Hawaii, Māhū were priests and healers who passed down genealogies and cultural traditions, performed sacred hula dances and chants, and were positioned p. 99↵as the person in the community parents would ask to name their children.
Fa’afafine is the word used to describe a third gender category amongst the American Samoans. A recognized third gender, fa’afafine are assigned male at birth and explicitly embody both masculine and feminine gender traits. Of note, Polynesian culture is altogether less binary than western standards as it pertains to gender and sexuality.
In South Sulawesi, Indonesia, the Bugis people recognize five different genders: makkunrai, oroané, bissu, calabai, and calalai. Makkunrai and oroané are comparable to cisgender men and women. Bissu, calabai, and calalai are nonbinary genders that are less comparable to western standards: Bissu are mixed gender, or “meta-gender” priests and shamens, while calabai and calalai are similar to trans women and trans men, respectively.
In Southeast Asia, hijras are individuals not considered either male or female. The word hijra is a Hindi/Urdu word, derived from the Semitic Arabic root hjr, meaning “leaving one’s tribe.” With a recorded history of over 4,000 years, hijras have a complex history of being both celebrated and criminalized, and were especially denigrated during British rule. In 2014 India began legally recognizing hijra as a third gender, following similar legislation in Nepal, Pakistan, and Bangladesh.
Thai kathoey live similarly to the western concept of transgender women, although not all transgender women in Thailand identify as kathoey. The identity is tied to spirituality and religion, as kathoey are viewed as conduits for both male and female spirits. In ancient Thai Buddhism, four genders were acknowledged: male, female, bhatobyanjuanaka, and pandaka.
Third genders also exist in Pakistan, where Khawaja Sira are both woven into spiritual customs as revered leaders and simultaneously harshly discriminated against. In Oman, Xanith identities largely refer to individuals who were male assigned at birth but who live as women. The ergi of Siberia; p. 100↵the sekrata of Madagascar; the ashtime of Ethiopia; and the binabae, bayot, agi, bantut, badíng, and the lakin-on of the Philippines are all third gender categories that are culturally acknowledged.
Today, throughout the globe, these nonbinary and third gender categories are integrated into society in often precarious roles. Many are linked to spiritual enlightenment and revered in positions of leadership, while at the same time they face violence, human rights violations, and loss of family of origin, forcing them to relocate into their own self-contained communities.
How does language shape the way we think about gender?
Do people who speak different languages see the world in different ways? According to the Sapir–Whorf hypothesis, also known as linguistic relativity, they do. Those who support the theory of linguistic relativity argue that language can shape the way we think and even limit the things we are able to think about. Charlemagne is said to have stated, “To know a second language is to possess a second soul.”
One of the most commonly cited examples of linguistic relativity is the idea that Inuit people are able to understand and describe snow in more ways than others because their languages have more words for it. However, in 1991, one linguist dubbed this the “great Eskimo vocabulary hoax,” arguing that there was little evidence that there were concepts related to snow that Inuits could express that others could not. The debate continues, with the 2010 publication of the book Knowing Our Ice, which asserts that there are, in fact, specialized vocabularies for snow in Inuit languages and that others do not have access to as rich a world in this arena.
There has been significant controversy around the concept of linguistic relativity, with linguists and anthropologists debating whether the languages we speak actually limit us cognitively. Even if virtually all languages are translatable, does p. 101↵our own language still shape our world view? While most experts oppose the suggestion of linguistic determinism (the idea that the language we speak entirely determines our possible thoughts), many feel that there is evidence for linguistic influence (the idea that our language can provide constraints on our thinking).
There are some languages, such as Balinese, for example, where instead of using terms like left or right, speakers always refer to cardinal directions (i.e., north or east). There appear to be differences in the way people who speak languages like English, which uses relative directions, and those who speak languages with cardinal directions orient themselves in space. Perhaps even more interestingly, spatial orientation can also affect how we think about time. The Kukutai, for instance, a group of aboriginal Australians whose language uses cardinal directions, perceive time as moving from west to east rather than left to right, so if they are facing south, they think about time as moving from right to left rather than left to right.
Do the languages we speak have the potential to shape the way we think about gender? Research shows that they may. The most obvious example of this is the use of sexist language. Children asked to talk about or draw pictures of people who do certain jobs are more likely to suggest the person is a man if the job title is sexist (i.e., fireman, policeman, spokesman).
Some languages have “grammatical genders,” meaning that nouns are masculine, feminine, or neuter. Many English speakers learning other languages have difficulties remembering the genders of nouns because English does not have grammatical genders. Why is the word cat (el gato) masculine and the word table (la mesa) feminine in Spanish? Why, in Greek, is the word for “sun” (o helios) masculine and the word for “moon” (to fengari) feminine, but the opposite is true in German (the word for “sun” is feminine [die sonne], and the word for “moon” is masculine [der mond])?
While it may not appear to be important whether a word is masculine or feminine, grammatical genders may subtly p. 102↵affect the way we think. Studies have shown that the adjectives people use to describe objects depend on the grammatical gender of the object in their native language. When asked to describe a key (masculine in German and feminine in Spanish), German speakers use more stereotypically masculine words such as hard, heavy, and useful, while Spanish speakers use more stereotypically feminine words such as intricate, little, and shiny.
Although only some languages employ grammatical genders for nouns, most (but not all) use gendered language to talk about people. In English, pronouns have traditionally been gendered (i.e., he or she), making it difficult to talk about someone without referring to their gender. In languages without gendered pronouns, such as Finnish and Japanese, you do not have to know the gender of the person you are speaking about to talk about them. Does this mean that Japanese speakers do not think as much about the gender of the people they are describing as we do? If so, do Japanese speakers have a different gendered world view from ours? It is hard to know.
In some languages, gendered words are necessary not just when referring to others, but also when describing yourself. A man would be expected to refer to himself as “grand” (tall) in French, for example, while a woman would be expected to refer to herself as “grande.” Children who grow up speaking French learn early on to talk about themselves in gendered ways. Two children on a playground in an English-speaking community may be able to have an entire conversation without knowing each other’s genders. This would be much more difficult for the same children speaking in French. When transgender people transition in French-speaking communities, they must change the genders of the adjectives they have been using to describe themselves since childhood. French is not unique; many languages including Hebrew and Arabic require a speaker to conjugate words dependent on the speaker’s gender.
p. 103↵Many languages use gendered language to refer to groups as well as individuals, and gendered language for groups is often sexist, favoring men. In Spanish, for example, a group of women would describe themselves as the feminine nosotras (we), but a mixed group of women and men, no matter how few men were present, would be expected to describe themselves as nosotros (masculine). In English, we regularly describe mixed-gender groups as “you guys” but would be looked at strangely for calling the same people “you gals,” even if there were just one man in the group. Why is “you gals” so jarring? Is it simply because it would be incorrect linguistically? Another possibility is that the convention of referring to mixed groups as masculine has contributed to a hierarchy in our minds, making us uncomfortable with the idea of referring to a man as feminine. Which explanation is correct? How can we ever truly know?
How has culture shaped language about gender?
In subtle ways, our language likely affects the way that we think. But how does the way that we think affect our language? In other words, how does our culture shape the way our language develops? And, more specifically, how does our cultural understanding of gender affect the language that we use?
There are certainly some obvious examples of ways in which culture affects gendered language. In patriarchal societies, women are often referred to using words that are rarely, if ever, used to describe men, and vice versa. Women are beautiful, while men are handsome. Women who take charge are bossy, while men are strong leaders. When was the last time you heard a man referred to as bubbly, curvy, ditsy, frigid, frumpy, or shrill?
Culture also shapes the way men and women talk. A stark example is a Native American language called Koasati, in which there are clearly demarcated differences between male and female speech. Women end certain words with vowels p. 104↵where men would use a consonant, and women and men use different pitches and stresses. In some ways, this is not so different from English, where men and women often have different intonations. In English, women have also been found to use more polite language and to ask more questions. When analyses are done, it is clear that this is not because women necessarily want to gain more information, but because they use questions to engage the other person. Researchers have found that men are more likely to use language for status, while women use it to connect and create intimacy.
Language is not just about the words that we use or how we say them. It also involves the amount of space that we give to others to speak and express themselves, and how well we listen (or don’t) to each other. Women regularly bring up the fact that men are more likely to interrupt them, and a recent study showed that this occurs even at the highest levels of society. Through reviews of transcripts of Supreme Court oral arguments, a research group showed that, in 2015, 65.9% of all interruptions were directed at the three female justices (out of nine total justices). Despite strict rules that justices can interrupt each other, but lawyers are never, for any reason, permitted to interrupt justices, male lawyers accounted for 10% of interruptions of justices. (Female lawyers interrupted justices so few times that their interruptions statistically neared 0%). The most common form of interruption of any justice was a male lawyer interrupting the only woman of color on the court, Justice Sonia Sotomayor.
Although culture can have a negative impact on language and perpetuate stereotypes, language can also be reclaimed and purposefully shifted and changed to create new frames and ways of thinking about things, including gender. For many years, the default pronoun in English, when gender was not known, was he. Feminists worked to shift this default to he or she or sometimes to just she. When the idea to expand the default pronoun was first suggested, it was met with significant resistance, with many people, including some p. 105↵women, arguing that it was too difficult to change entrenched language. However, starting only a few decades later, writers were considered old-fashioned if they used the default he. Similarly, when feminists first suggested using neutral terms like spokesperson and firefighter instead of more gendered language, there were complaints that it would be hard to make this transition, but now these more neutral terms are normal parts of our vocabulary.
Today, one of the areas of the English language that appears to be changing rather rapidly is self-defined terminology that refers to groups of people, including language related to race, ethnicity, gender, sexuality, immigrant status, and disability. Many people are eager to learn and use language that is considered respectful to others. With regard to gender, in addition to the categories of male and female, there is now more widespread use of terms like nonbinary, gender expansive, and genderqueer. It is also becoming more common for people outside of LGBTQ communities to understand and use gender-neutral pronouns such as they to refer to one person.
Recently, native speakers of a number of languages have attempted to incorporate more gender-neutral ways of speaking and writing. In Swedish, traditional pronouns are han (he) and hon (she). Over the last 5 to 10 years, the gender-neutral pronoun hen was introduced. Likely because of a combination of interest and ease of use, hen has taken off. In Spanish, many people have begun to use the letter x in place of the masculine o or feminine a. The word todos (meaning “everyone”) in the masculine form, for example, would become todxs and could be pronounced “todes.” In the United States, Latinx is now a popular self-description for those who may have called themselves Latino or Latina in the past. The x in Latinx is typically pronounced like an English x.
English, like Spanish, does not have as easy of an answer to the question of gender-neutral pronouns as some other languages, and using a formerly plural pronoun as singular can p. 106↵initially feel somewhat clunky. However, use of the pronoun they to describe one person also seems to be catching on.
The only thing constant about language is that it evolves. Sometimes this takes place organically, making it easy for stereotypes and biases to enter into it. However, at other points, groups of people work hard to mold language in ways that help us to communicate more respectfully and to build a more just world.
What are gender-neutral titles and pronouns?
Most people think that the title Ms., which, like Mr., reveals nothing about the marital status of the person it describes, was coined in the 1960s during a time of feminist movements for social change. In fact, its use first began in the 17th century, but fell out of favor. During the 20th century, there were at least a few who attempted to bring Ms. back, arguing that it was more convenient to use and that it could be embarrassing to call a married woman Miss or a single woman, Mrs. However, conventions can be difficult to overcome. Finally, it was feminists in the 1960s, most notably Gloria Steinem, who named her 1972 magazine Ms., that popularized the title.
Today, men continue to have only one title (Mr.), while women can choose from three (Mrs., Miss, or Ms.). Recently, some transgender and nonbinary people have begun to use gender-neutral titles, and it is possible these will come into more mainstream use by cisgender people at some point as well. Mx., pronounced “mix,” is the most common gender neutral title.
In English, in addition to titles, pronouns are also gendered. We typically use the pronouns he/him to describe men and she/her to describe women. Many transgender people identify with these binary terms, but there are also those who would prefer to be addressed in more gender-neutral ways.
There were early attempts to create new words, such as ze to replace she or he and hir to replace him or her. There have p. 107↵also been some unique gender-neutral pronouns that have emerged, including yo, used by teens in Baltimore. By far the most common gender neutral pronoun at present is they/them. While English teachers may complain that it is grating to their ears, it is a word people know and are used to using, even if not in the same context, and has become more and more commonplace in the last decade. While Miriam-Webster Dictionary only recently added they as a valid singular gender-neutral pronoun, interestingly, the word they being used in this way isn’t entirely new. Examples of the singular they being used to describe one person can be seen as early as 1386 in Geoffrey Chaucer’s The Canterbury Tales, as well as Shakespeare’s Hamlet in 1599. Even in modern times, without thinking twice, we might remark, “Someone left their coat on my chair,” unintentionally resorting to a singular gender neutral pronoun when not knowing the gender of the person in question.
How do different major religions understand gender?
The majority of the world population identifies as religious. In the United States, surveys indicate that somewhere around 80% of participants belong to an established faith, primarily Christianity (70%), with much smaller proportions of other major world religions (Judaism 2%, Islam 1%, Hinduism 1%, Buddhism 1%). On a global level, there are an estimated 2.3 billion Christians, 1.8 billion Muslims, 1.1. billion Hindus, and 500 million Buddhists. Jews make up a much smaller percentage of the world population (15 million total) than the United States population, and there are other religious groups less well known in the United States whose numbers are higher on a global scale (e.g., 27 million Sikhs).
Women in the United States are more likely than men to say religion is “very important” in their lives (60% vs. 47%). American women are also more likely than American men to say they pray daily (64% vs. 47%) and attend religious services at least once a week (40% vs. 32%). Despite women’s interest p. 108↵and participation in religion, many sects of major world religions separate participation in religious rituals and services by gender and exclude women from senior roles. Queer and trans people have also historically been marginalized, and often condemned, by major world religions.
To make blanket statements about the role of gender or sexuality in any one religion is nearly impossible, as there are progressive and conservative branches of all major world religions. In addition, there are innumerable dimensions by which each religion could be measured in terms of its approach to gender and sexuality. Important questions include: Who are the major historical figures, saints, and gods? Are they male, female, or beyond gender? Do the religious texts promote gender equality or condemn women, queer, and trans people? Are women, queer, and trans people permitted roles in the clergy, and can they attain the same status within the religious hierarchy? Are there current policies within the religion that are inclusive of women’s and queer/trans rights?
Although the ancient Hebrew texts referred to God in some places as genderless or, alternately, male and female, in the Abrahamic religions (Christianity, Islam, Judaism), most of the major prophets and historical figures have been men, and God is often referred to as male (the Father). Female figures like Deborah, the first judge in Hebrew tradition; Fatima, Muhammad’s wife; and a number of female saints in Catholicism are notable exceptions. In Hinduism, the Brahman, or Supreme Self, is a genderless concept. Hinduism is polytheistic, and its deities come in many genders, including male (e.g., Krishna), female (e.g., Lakshmi), and androgynous (e.g., Ardhanarishvara). In addition, Hijras, a third gender category in India and Pakistan, are often thought of as spiritual beings and asked for blessings. Still, the majority of well-known historical figures within Hinduism are male. The founder of Buddhism, Siddhartha Gautama, was male, as well as most of the influential teachers, although there have also been female buddhas and spiritual leaders. A number of indigenous p. 109↵religions in the Americas included shamans who were gender nonconforming people.
In addition to the genders of gods and historical figures, a religion’s approach to gender can also be garnered from its texts and the teachings of its early leaders. Sikh scriptures are some of the most straightforward in their support of women, outlining the equality of men and women, who are described as having the same souls, with temporary outward appearances. The early Sikh Gurus also made many statements in support of women’s rights, instructing followers that women were to be equal participants in religious ceremonies and condemning local customs such as widow burning and female infanticide.
Early Buddhism offered a progressive approach to gender for its time. The Buddha allowed women to participate in monastic rituals and taught that all people have equal spiritual worth. In the 2,600 years that followed, however, gender parity in Buddhism has varied widely by culture. Similarly, the Abrahamic traditions have held long-standing tensions between their sacred text, theology, spiritual practices, and surrounding cultural mores in relation to gender. Abrahamic sacred texts, such as the Torah, Christian scriptures, and Qu’ran often instructed women to be subservient, and there are passages that have been interpreted to condemn same-sex relationships.
While the roots of a religion can have a profound effect on its adherents, the social context in which it is practiced today may impact followers even more. Despite Sikhism’s emphasis on a genderless soul, for example, homosexuality remains controversial within the religion, with some leaders condemning it and others coming out in support of legal protections for same-sex marriage.
Other major world religions continue to have similar ongoing debates about the role of women and LGBTQ people in the life of the community. While mainstream Catholicism remains strictly divided into male priests and female nuns, most mainstream Protestant denominations permit women to p. 110↵become pastors, bishops, and other authorities in the church. Some Christian churches allow their leaders to officiate same-sex marriages, while others have banned these unions from church grounds. Within Judaism, there is also diversity in approaches, with more progressive temples ordaining women and LGBTQ people and supporting same-sex marriage while conservative branches see these actions as serious transgressions.
There are not many statements about religion with which most people would agree, except that religion is an extremely powerful force that influences and is influenced by culture. Because of this, different religions’ approaches to gender and sexuality can have a large impact on how gender roles are defined in a society and on the success or failure of movements for gender equality.
What is the history of gender equality under the law in the United States?
From the beginning of recorded history until just a few decades ago, the laws of most western cultures and nations have assumed that the biological sex of an individual and that person’s gender are congruent. The law viewed sex as strictly binary—an individual, at birth, was viewed as either male or female, depending on the appearance of that individual’s outward genitals. From birth until death, a person’s legal status was dependent on a determination made at birth.
Most cultures attempted to enforce gender expression and gender roles on individuals based on that determination. In modern western society, both men and women were expected to express their gender by the clothing they wore, the way they groomed themselves, and the way they behaved or conducted themselves.
Men were expected to be self-confident, bold, independent, intelligent, assertive, and even aggressive. They were discouraged from expressing sensitive emotions. Men’s roles included p. 111↵work in all sorts of professions and jobs and participation in government. Women, on the other hand, were expected to be polite, accommodating, dependent, emotional, and nurturing. Women’s roles included taking care of children and the home. Women were permitted to participate in very few types of work—midwifery and selling food at markets being some of the few acceptable positions. Even in religious settings, men were promoted to higher positions than women.
Cultures attempted to enforce gender roles—and usually even gender expression—regardless of the individual’s own gender identity or desire not to be bound by the culture’s expectation of them. Sometimes enforcement was by means of laws, such as those that allowed only men to vote, and sometimes enforcement was by other means, such as community pressure.
In the early American colonies, colonial governments imported English common law, which placed women in a separate class of persons from men in many respects. This different treatment was based on assumptions that women were physically, intellectually, and emotionally inferior to men. However, because women gave birth to children and children were a valuable commodity, women were viewed as requiring protection so that they could produce heirs.
In the colonies, and then in the states, following English common law, the legal status of free women depended on marital status. Unmarried women had many of the legal rights of men, such as the right to enter into contracts, to sue, to obtain and hold property, to live where they chose, and to receive wages for engagement in whatever occupations would accept them (usually not professions such as attorneys, doctors, and higher level teachers). Marriage changed a woman’s status dramatically—women were viewed as legally nonexistent in a status called coverture, which suspended almost all individual rights, giving them instead to her husband.
The husband was viewed as the head of household. He controlled all assets and made all important decisions. If he p. 112↵wanted to move, his wife had to move with him or she was guilty of abandonment. Unless she came from a wealthy family that could make special legal provisions for her, the wife’s property became the husband’s, including any wages she might earn. He could do with that property whatever he wanted, no matter how reckless or ill-advised his decisions might be. The law granted the wife certain rights to any land or buildings she may have brought into the marriage, but that would not help a woman from a family that lacked real estate.
After U.S. independence, some of the strict rules governing married women’s rights were loosened, but most remained. During the 19th century, as the nation became industrialized, women demanded changes in the legal rules governing the rights of married women, especially in terms of property and custody of children. Gradually, states passed laws enabling women to own property, keep their own wages, and enter into certain professions that had been barred to them. States also gave mothers more rights than they had in England, although fathers were still favored.
Women in the 19th century hoped for more than that. They began organizing for voting rights. The Civil War intervened, but afterward they hoped that they, along with formerly enslaved citizens, would get the vote. However, their hopes were dashed when the word male appeared in the Constitution for the first time in Section 2 of the 14th Amendment, indicating that women—both Black and white—were not guaranteed the right to vote in federal elections. Women received the vote in many states starting in the late 1800s, and then finally, in 1920, throughout the whole country.
Interestingly, Section 1 of the 14th Amendment of the Constitution, the same amendment that locked women out of the vote for 50 years, guaranteed to all citizens the “privileges and immunities of citizens of the United States” and to all persons (citizens or not) the “equal protection of the laws.” However, when women in the 19th and first half of the 20th p. 113↵centuries brought their claims under Section 1 to the courts, they were systematically denied.
Finally, in 1971, in Reed v. Reed, the Supreme Court, faced with a blatantly discriminatory state statute, used the Equal Protection clause to rule for equality. In Reed, the court struck down a state statute that prioritized men over women as estate administrators. Subsequent decisions ended statutes that granted female but not male spouses of military personnel automatic benefits (Frontiero v. Richardson, 411 U.S. 677, 1973), required pregnant women to take unpaid leave after their first trimester (Cleveland Board of Education v. LaFleur, 414 U.S. 632, 1974), made jury service mandatory for men but voluntary for women (Taylor v. Louisiana, 419 US. 522, 1975), set the age of majority at 21 for men and only 18 for women (Stanton v. Stanton, 421 U.S. 7, 1975), allowed women to buy beer at a younger age than men (Craig v. Boren, 429 U.S. 190, 1976), and created distinctions in Social Security survivor benefits between men and women (Califano v. Goldfarb, 430 U.S. 199, 1977).
Most of these statutes were invalidated based on the idea that they were rooted in stereotypes about men or women. However, when a statute was based on a medical condition only women could endure, because of the differences between female and male reproductive organs, women did not fare as well. In Geduldig v. Aiello (417 U.S. 484, 1974), women argued that since only women can become pregnant, a California disability program that denied benefits for disabilities resulting from pregnancy but granted benefits for disabilities resulting from all medical conditions that could be suffered by men was unconstitutional and should be overturned. The Court refused, stating that the program did not discriminate on the basis of sex but distinguished between pregnant and nonpregnant persons. Similarly, even when pregnancy discrimination was challenged under Title VII of the Civil Rights Act, the Court held that pregnancy discrimination is not sex discrimination under Title VII (General Electric Co. v. Gilbert, 429 U.S. 125, p. 114↵1976). Finally, Congress overrode this decision through passage of the Pregnancy Discrimination Act of 1978.
Women have fared better under Title VII of the 1964 Civil Rights Law (employment) and other federal statutes that prohibit discrimination based on sex when the challenged statute is not based on something that has to do with reproduction. For example, in Los Angeles Department of Water and Power v. Manhart (435 U.S. 702, 1978), the Court overturned a statute requiring female workers to make larger pension fund contributions than their male counterparts. That statute was based on statistics showing that women generally live longer than men.
Attorneys hoping to strike down laws restricting abortion or other forms of birth control have primarily argued that they are unconstitutional based on the “right to privacy” rather than because they represent sex discrimination. Many antiabortion laws have been upheld even though, as Ruth Bader Ginsburg stated during her confirmation hearing, “Abortion prohibition by the State . . . controls women and denies them full autonomy and full equality with men.”
Sexual harassment in the workplace has become recognized as violating Title VII’s prohibition against sex discrimination in employment. In Meritor Savings Bank v. Vinson (477 U.S. 57, 1986), sexual harassment was directed by a male against a female, which is the most common sexual harassment situation. In later cases, however, the sexual harassment was directed by a female against a male, a male against another male, or a female against another female. Thus, the question arose whether those cases of sexual harassment were also violative of Title VII. In other words, does Title VII cover same-sex harassing behavior that would violate Title VII if the behavior was between two people of different sexes? The Supreme Court said yes in the unanimous decision in Oncale v. Sundowner Offshore Services, Inc. (523 U.S. 75, 1998).
In June of 2020, after decades of advocacy, the Supreme Court decided that the prohibition on sex discrimination in p. 115↵Title VII of the Civil Rights Act protected LGBTQ workers. The Court had heard arguments in Bostock v. Clayton Co., which encompassed two lawsuits from gay men who claimed they were fired because of their sexual orientation, and Harris Funeral Homes v. EEOC, which involved a transgender woman, Aimee Stephens, whose employer fired her for her gender expression when she said that she would be dressing as a woman and otherwise presenting as a woman on the job. “An employer who fires an individual merely for being gay or transgender defies the law,” Justice Neil M. Gorsuch wrote for the majority in the 6-to-3 ruling. “It is impossible, to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
What is gender-based violence?
Unequal power relationships between men and women have led, across continents and centuries, to an overwhelming level of violence against women, both in personal relationships and on a larger scale, within societies and as a weapon of war between groups.
On a personal level, intimate partner violence affects all communities, regardless of race, socioeconomic status, or religion. According to the National Coalition Against Domestic Violence, one in three women experiences domestic violence in her lifetime and there are over 20,000 calls placed to domestic violence hotlines in the United States each day. Half of female homicide victims are killed by their partners.
Intimate partner violence is not only physical or sexual but also verbal and emotional. Abusers may use tactics such as threats, name-calling, isolation from friends and relatives, financial withholding, and custody battles over children to exert control.
Intimate partner violence is not limited to cisgender men abusing cisgender women. The reverse is less common but often underreported. Same-gender relationships can also be p. 116↵affected by intimate partner violence. Queer and trans people who are abusive toward queer and trans partners can use specific strategies to intimidate and isolate. If one partner is “out,” for instance, that person may threaten to out the other person if their demands are not met.
Sexual violence often plays a role in intimate partner violence. While we are taught to be scared of walking down empty streets at night for fear of rapists, most sexual assaults happen between people who know each other. It was not until the 1970s that the first laws were passed making it a crime for a husband to rape his wife.
In the United States, one in five women reports a lifetime history of rape. Women are victims more often than men, although 1 in 71 men endorse a history of sexual assault. Men are even more likely than women to underreport rape, and many carry shame and guilt related to feelings of being emasculated. Trans people, especially trans women of color, are disproportionately targets of sexualized violence and murder. Children of all genders are also among the most vulnerable. Twenty percent of adult women and 5 to 10% of adult men recall a history of childhood sexual abuse.
While victims of sexual violence fall into many categories, perpetrators of sexual violence are predominantly cisgender men. This is an overgeneralization, and cisgender women as well as transgender people do sometimes sexually victimize others, but the vast majority of incidents of sexual assault are perpetrated by cisgender men. In cases of child sexual abuse, women are the perpetrators in 14% of incidents involving male children and 6% of incidents involving female children. When women are the perpetrators, victims may be even more reluctant to come forward, fearing they will not be believed.
In 2017, the #MeToo movement sprang up following sexual misconduct allegations against film producer Harvey Weinstein, shedding new light on the prevalence of gender-based violence and victim-shaming. For the first time in history, women’s stories were taken seriously, even when the p. 117↵accused man was in a position of power. This was in stark contrast to the responses only one year earlier to the revelation that soon-to-be U.S. President Trump had boasted about women that he liked to “grab ’em by the pussy.” The #MeToo movement was not enough by itself to cause the cultural shift needed to prevent the confirmation of Brett Kavanaugh to the U.S. Supreme Court in 2018. Echoing reactions to Anita Hill’s testimony against Clarence Thomas over 25 years earlier, Kavanaugh’s accuser, Christine Blasey Ford, had her reputation dragged through the mud while Kavanaugh went on to a seat on the highest court in the nation.
One-on-one attacks are not the only way that gender-based violence is used to control groups of people. Among the most heinous of crimes is the use of rape as a systematic weapon of war. During times of conflict, sexual assaults often skyrocket due to rising tension and anger as well as newfound power of one group over another. However, there is also evidence that in many world conflicts leaders specifically instruct soldiers to rape to demoralize the other side. Recent wars in Vietnam, Bosnia, Rwanda, and Syria have resulted in serious psychological trauma in large populations of women targeted through sexual assaults. Those who are raped during war are often ostracized by their families, and many bear the burden of giving birth to a rapist’s child.
Men have also been targeted through systematic sexual violence during wars, where men and boys are sexually assaulted and tortured. In some conflicts, men are given a choice between raping their female relatives or friends and being killed themselves. U.S. soldiers were found guilty of multiple instances of sexual assault, including sodomy and other forced sexual acts perpetrated against mostly male detainees, during the Iraq war at the military prison Abu Ghraib.
Gender-based violence sometimes receives press coverage when it occurs during armed conflicts, but is often overlooked when used to control populations during times of relative peace. The techniques employed during these times p. 118↵may not be as sensationalistic, but affect the lives of women and girls on a daily basis. Child marriage, for instance, has many lasting effects on women, including poor educational outcomes and high rates of maternal mortality. Genital mutilation is another systematic strategy for limiting women’s ability to engage fully in the world, taking away their potential for pleasure, to control their sexuality, with risk of infections and even death.
There are also more subtle, but pervasive ways in which gender-based violence keeps women from reaching their full potential. Even women who deny ever being victims of gender-based violence can recount numerous life experiences in which they felt threatened. Almost no woman in the world makes it to middle age without being on the receiving end of unwanted sexual comments or touches. Because of the always-present threat of violence against women that exists in most societies, women spend much of their mental energy every day thinking about how to stay safe. They avoid going out at certain times of day. They stay away from particular places, even within their own towns or cities. They steer clear of people who they know are potentially dangerous. They often live circumscribed lives to lower their chances of being victimized. All of this takes a toll, robbing even women who are not victims of their freedom to exist in the world in peace.
What are the legal protections for transgender people in the United States?
Until the Supreme Court’s 2020 decision in favor of the rights of LGBTQ employees, in most areas of the United States, there were no explicit laws preventing a person from being fired simply based on their gender identity. Today transgender people can be refused entrance to restaurants and hotels. They can be barred from military service. They can be turned away from adoption agencies and have their healthcare needs denied coverage by their insurance companies. Despite improvement p. 119↵in social recognition of trans people, our legal system lags behind.
Although some cities and states put into place protections for trans employees, there was no federal law in the U.S. barring discrimination in employment based on gender identity until June of 2020, and, at the time of publication, there is not yet clarity on how the Supreme Court’s decision will be upheld. The federal Employment Nondiscrimination Act was originally brought to Congress in 1994 to protect against discrimination based on sexual orientation. In 2007, gender identity was added, causing controversy, as some well-known LGBTQ organizations, including the Human Rights Campaign supported the bill without gender identity, not believing it would pass with it. The bill, even without gender identity, passed the House but not the Senate. A trans-inclusive version of the bill was been brought up in subsequent congressional sessions, but time and time again failed to move forward.
Another approach lawyers have taken to gaining employment protections for transgender people is through interpretation of existing laws. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on sex, race, color, national origin, or religion. In some recent court cases, Title VII has been interpreted to apply to transgender people through the “sex” category because trans people fail to conform to societal expectations for their sex. This was the approach taken by lawyers in the most recent Supreme Court case on this matter, which was decided in June 2020 in favor of LGBTQ workers.
The Civil Rights movement of the 1960s has also had a delayed positive effect on transgender people’s housing security. For many years, including well into the 2000s, LGBTQ people had little recourse if a landlord decided not to rent to them. However, recently there have been successful court cases arguing that the Fair Housing Act, part of the Civil Rights Act of 1968, which prohibits property owners from discriminating based on sex in the sale or rent of their buildings, applies to p. 120↵gender identity and sexuality. In public housing, there are even more straightforward protections. The Department of Housing and Urban Development (HUD), which oversees shelters, subsidized housing projects, federal housing vouchers, and federally insured mortgages, implemented the Equal Access Rule in 2012, prohibiting discrimination based on sexual orientation or gender identity. Unfortunately, HUD regulations are not legislative decisions and can therefore be updated at any time by the secretary of HUD, who is appointed by the president.
Unlike Title VII, Title II of the Civil Rights Act of 1964, which covers discrimination in public accommodations such as hotels, restaurants, and entertainment venues, includes only race, color, religion, and national origin, but not sex, in its list of protected classes. This leaves whole categories of people—women, men, transgender people, and gay, lesbian, and bisexual people—open to discrimination in access to these types of facilities. There are some states, such as California, that have enacted their own legislation to protect against discrimination in public accommodations, but the majority of states offer no such protection and permit restaurant, bar, and hotel owners to deny entrance to LGBTQ people.
Within their own homes, transgender people also face significant legal barriers. The country-wide legalization of same-sex marriage in 2015 was a step forward not only for same-sex couples but also for transgender people in different-gender relationships because they were now able to marry even if their genders were not legally recognized. However, unlike cisgender heterosexual couples, same-sex couples and those with a trans partner continue to face uphill battles to legitimize their relationships, as well as their connections to their children. In most cases, it is necessary to go through the process of a second parent adoption, meaning that the partner who did not give birth to the child formally adopts their own child to ensure parental rights. Even with a second parent adoption, when a couple with a child splits up, the trans partner often p. 121↵faces discrimination in the process of seeking legal rights to their child. Decisions about custody and visitation are made by individual judges on the basis of the “best interests of the child,” leaving trans people open to judicial bias.
Same-sex marriage has also has positive effects on trans people’s immigration rights, allowing recognition of all married couples in the immigration process, regardless of the genders of the partners. Still, trans people face numerous barriers to legal immigration. They are often encouraged not to change their legal names or genders during the application process because any glitch can cause delays, which results in many people putting off important changes while they wait for long periods for their paperwork to go through. Additionally, while trans people can apply for asylum as part of a persecuted social group, similar to family courts, immigration courts are presided over by judges who have the final say in whether asylum will be granted, and judges can display prejudice against trans communities. While waiting for their court appearances, some asylum seekers and other immigrants are held in detention centers run by Immigrations and Customs Enforcement (ICE). These facilities are notoriously dangerous for vulnerable groups. In 2018, a trans woman from Honduras named Roxsana Hernandez Rodriguez died in ICE custody and her autopsy showed signs of abuse.
Violence against trans people does not occur only in ICE detention centers, but also in many different settings across our communities. A 2013 study by the National Coalition of Anti-Violence programs showed that 72% of hate crime murder victims were trans women, and almost all of those were women of color. In 2009, federal hate crimes laws were expanded to cover sexual orientation and gender identity. Whether these laws are effective in preventing crimes, however, is debatable, and some trans lawyers and activists argue that hate crimes laws simply expand prison populations rather than fixing underlying problems.
p. 122↵Concerns over expanding prison populations are directly relevant to trans people, as 16% of trans people have been incarcerated compared to 3% of the general population. Trans youth grow up experiencing more trauma and have fewer options for school and employment, leading to increased rates of sex work and arrests for prostitution. Police often target trans people even when they are not engaging in sex work. Once in jail or prison, trans people are victimized by both staff and other inmates. Many trans women, especially, are put in extremely dangerous situations, where they are assigned to units with cisgender men. One solution staff turn to is separating out trans prisoners, but this is typically to solitary confinement, which has been proven to be psychologically damaging. Eighty-five percent of LGBTQ people who have been in prison report spending time in solitary confinement.
Despite there being an estimated 15,500 transgender active duty, national guard, and reserve personnel, as well as 134,300 trans veterans, the status of trans people in the military remains precarious. In 2016, under the Obama administration, Department of Defense regulations banning transgender service members were repealed. However, since the election of Donald Trump, there have been a number of twists and turns in the saga of trans people interested in or currently part of the U.S. military. Beginning with a July 2017 tweet in which Trump announced that transgender people would no longer be able to serve in the military, there have been numerous back-and-forth arguments, including a letter signed by 56 retired generals and admirals in favor of transgender troops. Lawsuits have continued to block implementation of Trump’s plan, and the Pentagon is listening to the courts for now.
Engaging in any public activity, including looking for a job or apartment or joining the military, involves proper identification. For trans people, this means identification with the correct name and gender. Name changes can typically be accomplished relatively quickly, although the process is not always smooth. Most states require a court order, which involves p. 123↵appearing in front of a judge. Most people are permitted to change their names as they please, but judges sometimes demonstrate discriminatory behavior toward trans applicants. In addition to going in front of a judge, there is also often a requirement to publish the name change in a local newspaper. This stipulation exists to prevent name changes for the purposes of escaping debt or legal issues. For trans applicants, this can pose a safety risk and the requirement is sometimes waived.
Gender changes are more complicated than name changes and depend on the level (federal or state) at which the change is being requested. After years of obstructive policies, in 2010, the State Department announced a new policy that gender could be changed on federal passports and social security documents with a letter from a doctor indicating the person had “appropriate clinical treatment for transition to the updated gender.” Because this phrase allows physicians to make their own judgements about what is appropriate treatment, those trans people with access to supportive physicians are able to apply for federal gender changes relatively easily, while those who do not have this kind of access often have to jump through significant hoops.
State-level gender changes on ID documents such as drivers licenses and nondriver IDs vary by state. Alabama, for instance, requires a letter written by a surgeon stating that gender confirmation surgery has been completed, effectively barring anyone who cannot afford or does not desire surgery from changing their gender marker on their ID. There has been significant progress in many states, however, and in 2017, Washington, D.C.; Oregon; and California even began to offer a gender-neutral option on drivers licenses. Gender changes to birth certificates are also processed on a state level, and depend on the state in which a person was born. Most states will reissue or amend the gender on a birth certificate. Some require genital surgery. The original birth certificate may or may not be “sealed” and the amendment may be obvious, p. 124↵making it difficult to keep the change confidential. Four states (Idaho, Kansas, Ohio, Tennessee) will not reissue or amend birth certificates for gender changes under any circumstances, leaving transgender people there at risk of discrimination in any situation in which they are required to present their birth certificates.
