Marsha Blackburn asked Ketanji Brown Jackson to define 'woman.' Science says there's no simple answer.

·6 min read

In the 13th hour of Judge Ketanji Brown Jackson's confirmation hearing Tuesday, Sen. Marsha Blackburn, R-Tenn., asked the Supreme Court nominee: “Can you provide a definition for the word ‘woman’?”

Jackson, appearing confused, responded, "I’m not a biologist.”

Blackburn chided Jackson, claiming that "the fact that you can’t give me a straight answer about something as fundamental as what a woman is underscores the dangers of the kind of progressive education that we are hearing about."

Senators on both sides of the aisle have used Jackson's confirmation hearing to air issues that have less to do with Jackson's qualifications and more to do with their respective parties. The exchange reflects the current state of gender politics in the U.S., as transgender swimmer Lia Thomas' recent NCAA win sparked a fierce debate over trans athletes, as a flurry of bills have sought to ban gender-affirming health care for trans youth, and as other bills have banned trans girls from participating in K-12 girls' sports. If Jackson is confirmed, it's inevitable she will preside over cases involving trans rights.

Report: 2022 could be most anti-trans legislative years in history

Ketanji Brown Jackson: Comments on motherhood, her husband's tears and what they mean for a historic moment

Scientists, gender law scholars and philosophers of biology said Jackson's response was commendable, though perhaps misleading. It's useful, they say, that Jackson suggested science could help answer Blackburn's question, but they note that a competent biologist would not be able to offer a definitive answer either. Scientists agree there is no sufficient way to clearly define what makes someone a woman, and with billions of women on the planet, there is much variation.

"I don't want to see this question punted to biology as if science can offer a simple, definitive answer," said Rebecca Jordan-Young, a scientist and gender studies scholar at Barnard College whose work explores the relationships between science and the social hierarchies of gender and sexuality. "The rest of her answer was more interesting and important. She said 'as a judge, what I do is I address disputes. If there's a dispute about a definition, people make arguments, and I look at the law, and I decide.' In other words, she said context matters – which is true in both biology and society. I think that's a pretty good answer for a judge."

'There isn't one single 'biological' answer to the definition of a woman'

Blackburn tweeted after the exchange that "this is a simple question," and called Jackson's response "a major red flag."

But Jordan-Young said she sees Jackson's answer, particularly the second half, reflecting the necessity of nuance. While traditional notions of sex and gender suggest a simple binary – if you are born with a penis, you are male and identify as a man and if you are born with a vagina, you are female and identify as a woman – the reality, gender experts say, is more complex.

"There isn't one single 'biological' answer to the definition of a woman. There's not even a singular biological answer to the question of 'what is a female,'" Jordan-Young said.

There are at least six different biological markers of “sex” in the body: genitals, chromosomes, gonads, internal reproductive structures, hormone ratios and secondary sex characteristics. None of the six is strictly dichotomous, Jordan-Young said, and the different markers don’t always align.

Sarah Richardson, a Harvard scholar, historian and philosopher of biology who focuses on the sciences of sex and gender and their policy dimensions, said Jackson's answer accurately reflects legal practice. While U.S. law remains an unsettled arena for the conceptualization and definition of sex, it frequently grounds sex categorization in biological evidence and reasoning.

But like Jordan-Young, Richardson emphasized that biology does not offer a simple or singular answer to the question of what defines a woman.

"As is so often the case, science cannot settle what are really social questions," she said. "In any particular case of sex categorization, whether in law or in science, it is necessary to build a definition of sex particular to context."

Experts say the category of 'woman' has always been in dispute

Juliet Williams, a professor of gender studies at UCLA who specializes in gender and the law, said it's important to note this isn't an entirely new debate.

The category of woman has long been politically contested. Black women, she said, were not always welcomed in the category. For example, while the 19th Amendment granted women the right to vote, for decades many Black women were excluded from exercising it. During Jim Crow, there would be bathrooms labeled "men," "women" and "colored." The longstanding view of white supremacy denied recognition as women to Black women and women of color.

Williams said one can also look to the era of Phyllis Schlafly, an attorney and activist and the face of conservative women in the 1970s who argued against the Equal Rights Amendment, which would make discrimination on the basis of sex unconstitutional. Williams said Schlafly believed women's roles as homemakers were fundamental to how the category of woman was defined.

"There was an effort to define womanhood in very specific ways around roles of mothering and nurture, and to suggest that a society in which women's rights and opportunities were equal to men would essentially lead to a genderless, gender-neutral society," she said. "In other words, if women ceased acting like women, they would cease being women."

A fierce debate over trans women in sports

Blackburn's questions reflect the current debate over Thomas, a transgender woman and member of the University of Pennsylvania swimming team who made history this month when she won an NCAA swimming competition in Division I.

Gender scholars and trans activists argue that critics are focused on Thomas' assignment as male at birth as the sole reason for her excellence. Thomas began transitioning in 2019 with hormone therapy, and while her swim times slowed, she remained a top competitor.

Opinion: Lia Thomas' NCAA title should spark legitimate debate, not hate

Analysis: Conservatives want to ban transgender athletes from girls sports. Their evidence is shaky.

"Lots of people are assigned male at birth, have higher testosterone levels ... and could never make a Division I swimming team," said Kate Mason, a gender studies professor at Wheaton College who studies social inequality. "Why do we attribute her current success to her assigned sex, rather than to her long record as an elite swimmer?"

Experts say there can be standards for legal sex classification, but no one can legislate science

Gender scholars say there can be standards for legal sex classification, but no one can legislate science.

"I do think that judges and justices sometimes have to make determinations about who is meant by 'man' or 'woman' in written statutes – and they may have to acknowledge the reality that sex and gender are not binary," Mason said. "I think Blackburn would prefer a world in which reality was much simpler."

Jordan-Young said some politicians have work to do on the issue of "fairness" for women.

"When Blackburn and the rest of her caucus support women’s full reproductive justice, when they aggressively try to solve the inequality of investment in girls’ and women’s sports – still true 50 years after Title IX made it illegal – when they take meaningful action on the persistent wage discrimination against women, especially women of color, then maybe it will make sense to engage their questions about who can count as a woman."

This article originally appeared on USA TODAY: Marsha Blackburn asked Ketanji Jackson to define woman. It's not easy.