Are "man" and "woman" legally defined?

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document updated 12 years ago, on Jun 9, 2012

This page seeks to correct two misconceptions:

That "man" and "woman" are easy to define.
That our laws include this definition so that rules such as "marriage shall be between one man and one woman" and "only women are allowed in women's bathrooms" can be enforced.

General methods for determining sex/gender

"the majority assumes that gender is accurately determined at birth. Consider the basis for such a determination. Traditionally, an attending physician or mid-wife determines a newborn's gender at birth after a visual inspection of the newborn's genitalia. If the child has a penis, scrotum, and testicles, the attendant declares the child to be male. If the child does not have a penis, scrotum, and testicles, the attendant declares the child to be female. This declaration is then memorialized by a certificate of birth, without an examination of the child's chromosomes or an inquiry about how the child feels about its sexual identity."

-Justice Alma López, in the dissenting opinion for Littleton v. Prange (1999)

There have been various proposals for how to define gender or sex. In some situations they disagree with each other.

what someone looks like at first glance — There is a subset of the population (androgynous and genderqueer folks, some trans folks) who regularly get both "sir"ed and "ma'am"ed by strangers. (They aren't a small group either — so far 150 colleges have created gender-neutral bathrooms to address the fact that they get scolded for being in the "wrong" bathroom no matter which bathroom they use)
primary sex characteristics, external (external genitalia) — This is ambiguous for some intersex people. This is changed for post-operative transsexual people.
primary sex characteristics, internal (internal reproductive organs, eg. uterus, ovaries) — This doesn't match someone's hormones if they have CAIS.
secondary sex characteristics, hormone levels — Many trans people go on hormone therapy but don't have bottom surgery for various reasons: cost can be a significant issue for an economically-marginalized population; results are often unsatisfactory for trans men.
chromosomes — Until scientific testing becomes cheaper, the vast majority of people don't know what their chromosomes are, they simply assume. Some people may be surprised if they had genetic testing done, because many intersex conditions go unnoticed.
gender identity (a person's internal sense of their gender) — Transgender people assert that this is the only reasonable definition.
the marker on your driver's license, birth certificate, passport, etc — Many of these can be legally changed, including the birth certificate. Many trans people face practical difficulties changing some of their documents, and their driver's license and birth certificates disagree about what gender they are.

Legislature

For the most part, legislatures have avoided defining who falls under the categories of "man" and "woman".

"Notably, neither federal nor [Texas] state law defines how a person's gender is to be determined."

-Justice Alma López, in the dissenting opinion for Littleton v. Prange (1999)

However, many jurisdictions allow modifications to be made to a birth certificate in at least some narrow cases. (e.g. intersex folks with ambiguous genitalia) This is an acknowledgment that the initial sex assignment by the birth doctor is (if only rarely) not definitive.

Courts

Because legislatures have been reluctant to define "man" and "woman", case law has been forced to address the issue several times.

In re Anonymous, New York, 1968 — "Where there is disharmony between the psychological sex and the anatomical sex, the social sex or gender of the individual will be determined by the anatomical sex. Where, however, with or without medical intervention, the psychological sex and the anatomical sex are harmonized, then the social sex or gender of the individual should be made to conform to the harmonized status of the individual"
M.T. v J.T., New Jersey, 1976 — finds that, after bottom surgery, the plantiff's "gender and genitalia are no longer discordant; they have been harmonized through medical treatment", and thus, the plaintiff's legal sex is allowed to be the same as their internal sense of gender [my terminology, not theirs]
... there are many other cases ...

Sports

Science agrees that increased testosterone produces larger muscles, on average. And in many (but not all) sports, competitor strength is an important factor. So sports are one place that sex segregation is legitimate. Sports organizations differ on how they classify people into "man" and "woman" categories:

Olympics (IOC) — It has been forced to deal with the sex continuum since 1936, and its approach is still evolving. [1] [2]
WFTDA, one of the largest roller derby leagues — Someone is classified as woman for purpose of play if their "sex hormones are within the medically acceptable range for a female". They don't define "medically acceptable range", but instead leave it up to the discretion of third-party doctors.
Chicago Outfit Roller Derby League — Someone is classified as woman for purpose of play if they've had six months or more of female hormone treatment.