Transcending Transgender Language Barriers: Sex vs. Gender

This issue of Contra Costa Lawyer Magazine seeks to enrich our understanding of transgender issues that transcend areas of law and affect the legal community. In so doing, Co-Editor, Marta Vanegas and I had the honor of working with many thoughtful and talented contributors. The articles walk us through transgender issues with respect to the past, the budding present, and the future generations. The beauty in this issue’s cohesion is derived from a common theme that lends promise to the betterment of us all: the outlook of children.

We frame the issue with an article by stalwart trailblazer, Honorable Victoria Kolakowski, about her experience as a transgender judge, historical issues regarding transgender people, and her global outreach to educate communities about humanity overcoming controversy. Next, authors Sutter Selleck and Dana Weber describe their experiences with transgender name changes. Attorney Selleck describes moments of grace and adversity they encountered in our community, while Probate Examiner, Dana Weber, shows how the court system can appreciate and support transgender individuals, one case at a time. Oliver Greenwood notes issues affecting transgender minors and representation by minors’ counsel in probate proceedings. Nesta Johnson explains areas of family law wherein children are affected by transgender issues. We have much to learn from our many thoughtful contributors, whom we sincerely thank for their time and continued efforts to educate us all.

To give context to the articles, we must understand the meaning of “gender” and its relation to the terms, “sex” and “transgender.” At the time I write this article, I am nearing the end of my pregnancy, throughout which, I have been asked, “Do you know if the baby will be a boy or a girl?” I answered, “The gender is,” until my brother-in-law corrected me:

“It’s sex, not gender.”

“Oh. I didn’t understand the difference. I’m sorry.”

A gaffe, and one that I cannot be alone in having made. I have since learned that there is, in fact, a difference in the terms, and that it is time to put prudishness aside and say “sex” without reservation.

Sex and gender are often confused as synonymous in certain vernaculars, but are clearly defined by international scientific and health organizations:

• The World Health Organization: “Gender refers to the characteristics of women, men, girls and boys that are socially constructed. This includes norms, behaviours and roles . . . gender varies from society to society and can change over time… Gender interacts with but is different from sex, which refers to the different biological and physiological characteristics of females, males and intersex persons, such as chromosomes, hormones and reproductive organs.”[1]
• National Institute of Health: “Although ‘sex’ is often incorrectly thought to have the same meaning as ‘gender,’ the terms describe different but connected constructs… Sex is a multidimensional biological construct based on anatomy, physiology, genetics, and hormones… Gender can be broadly defined as a multidimensional construct that encompasses gender identity and expression, as well as social and cultural expectations about status, characteristics, and behavior as they are associated with certain sex traits…”[2]
• Planned Parenthood: “It’s common for people to confuse sex, gender, and gender identity… Sex is a label—male or female—that you’re assigned by a doctor at birth based on the genitals you’re born with and the chromosomes you have… Gender is much more complex: It’s a social and legal status, and set of expectations from society, about behaviors, characteristics, and thoughts. Each culture has standards about the way that people should behave based on their gender… instead of being about body parts, it’s more about how you’re expected to act, because of your sex. Gender identity is how you feel inside and how you express your gender through clothing, behavior, and personal appearance.”[3]
• Canadian Institutes of Health Research: “Sex refers to a set of biological attributes in humans and animals… Gender refers to the socially constructed roles, behaviours, expressions and identities of girls, women, boys, men, and gender diverse people. It influences how people perceive themselves and each other, how they act and interact, and the distribution of power and resources in society. Gender identity is not confined to a binary (girl/woman, boy/man) nor is it static; it exists along a continuum and can change over time.”[4]
• Council of Europe Portal: “Gender is an area that cuts across thinking about society, law, politics and culture, and it is frequently discussed in relation to other aspects of identity and social position, such as class, ethnicity, age and physical ability… to distinguish between sex and gender, different terms may be employed, for example ‘biological sex’ may be used to refer to ‘sex’, and ‘cultural and social sex’ may be used to refer to ‘gender.’”[5]
• Yale School of Medicine: “while an individual’s internal sense of gender can be female or male, some people identify as nonbinary—neither female nor male. Other individuals can identify as a gender that is the same as (cisgender) or different from (transgender) the one assigned at birth. These terms are separate from an individual’s sexual orientation, which describes a person’s emotional, romantic and/or physical attachments (such as straight, lesbian, gay, asexual, bisexual, and more). In science, as our understanding grows, so must the precision of our language in communicating what we know.”[6]

In discussing the subject, one of Contra Costa’s super-mom attorneys, Ariel Brownell Lee, recommended reading My Shadow Is Purple, by Scott Stuart. The book defines gender in an age-appropriate way for children and adults alike. The non-binary concept is described comprehensibly:

• “My Dad has a shadow that’s blue as a berry, and my Mum’s is as pink as a blossoming cherry. There’s only those choices, a 2 or a 1. But mine is quite different, it’s both and it’s none. If theirs are straight, then mine is a circle. For my shadow’s different . . . my shadow is purple!”
• “Some of my friends think I’m simply confused. But the thing I love most is not having to choose.”
  The story tells how persons on the non-binary spectrum may have any color of shadow, i.e., the rainbow. Actions, feelings, and preferences are related to but not circumscribed by sex. A child’s concept of gender is not rigid, and thus, they may enjoy playing with toys, dressing up, and partaking in activities regardless of traditional conformity.

Epitomizing the freedom for innate, individualized preferences, Governor Newsom signed Assembly Bill 1084, whereby in 2024, large retailers must have non-gendered toy sections.[7] The law was borne from a little girl who asked her parent why some toys were categorized for either boys or girls.[8] The new law will break down barriers of STEM[9] toys marketed to boys and domestic toys marketed to girls, and it will “tamp down on gender stereotypes that hurt children who play with toys marketed to a different gender.”[10]

The above concepts of sex and gender, as stated by scientists, adolescents, and allies, help transgender people to define their sometimes-undefined in a place of too-often misunderstood. As the ideas of sex and gender expound with time, the legal community must continue to inform itself to overcome explicit and implicit biases. Understanding and education are paramount to transcending barriers in transgender issues.

If the scientific community can clearly define the line between social construct and biology, and if children can organically manifest non-genderized tendencies, when will the rest of us catch up?

[1] “Gender and health,” (2023) World Health Organization, available at https://www.who.int/health-topics/gender#tab=tab_1 (internal citations omitted).
[2] “What are Sex & Gender? And why do they matter in health research?” (2023) National Institutes of Health Office of Research on Women’s Health, available at https://orwh.od.nih.gov/sex-gender (internal citations omitted).
[3] “Sex and Gender Identity,” (2023) Planned Parenthood, available at https://www.plannedparenthood.org/learn/gender-identity/sex-gender-identity (internal citations omitted).
[4] “What is gender? What is sex?” (May 8, 2023) Canadian Institutes of Health Research, available at https://cihr-irsc.gc.ca/e/48642.html (internal citations omitted).
[5] “Sex and gender,” (2023) Council of Europe Portal, available at https://www.coe.int/en/web/gender-matters/sex-and-gender#17 (internal citations omitted).
[6] Mazure, Carolyn M. “What Do We Mean By Sex and Gender?” (September 19, 2021) Yale School of Medicine, available at https://medicine.yale.edu/news-article/what-do-we-mean-by-sex-and-gender/ (internal citations omitted).
[7] Gender Neutral Retail Departments, Assem. Bill No. 1084 (2021).
[8] Edwards, Jonathan. “New California law will force retailers to have ‘gender neutral’ toy sections,” (October 11, 2021) The Washington Post, available at https://www.washingtonpost.com/nation/2021/10/11/california-law-gender-neutral-children-toy-section/
[9] Science, Technology, Engineering, and Mathematics.
[10] See note 8, ante.