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Apr 25, 2005
Defining Woman
For the first time (to my knowledge -- and I have done some, albeit limited, research) federal law is about to define "woman":
According to the Unborn Child Pain Awareness Act of 2005 (Senate Bill 51 and House Bill 356, if you're curious), it's the ova and the uterus and nothing else. The Act, which has been criticized for its possible effects on abortion law, has been referred to committee in both the House and the Senate. It contains this excellent definition:
WOMAN- The term `woman' means a female human being who is capable of becoming pregnant, whether or not she has reached the age of majority.
This definition of 'woman' was considered appropriate by both House and Senate.
I first saw this at Class Maledictorian, but then traced it back to Feministe and ultimately to Big Brass Blog. In particular, I liked this comment, on Feministe's blog:
As I like to say, in this culture (hell, pretty much any culture), “women” are uteruses first and people second.
This reminds me of my Queer Theory class last semester, reading Judith Butler and the like, and the difficulty we had in defining “female” at all; discussing the idea that sex may be as constructed as gender. Is a female a person with XX chromosomes? Then what about women like Jamie Lee Curtis, who has XXY chromosomes? Defining it by reproduction doesn’t work either, as you pointed out (two of my aunts were unable to concieve and adopted children; by the legislation’s definition, they are mothers, but not women). If genitalia are to be the definition, then we’re stuck with the fact of thousands of perfectly healthy intersexed babies born every year with “atypical” genitalia, as well as transexual people. Secondary characteristics don’t always hold true either; think of Frida Kahlo’s moustache (and what about females who get mastectomies and hysterectomies? are they no longer women?)
We decided that in this society we’re taught the circular reasoning that “Women” are simply “not men,” and “men” are “not women.”
So, Mom, in case you're curious, the federal government no longer thinks you're a woman.
12:57 PM in Current Affairs, Life, Politics, Transgenderism | Permalink
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Comments
wow - love what you've "done with the place," what a great "face lift!"
u.e.
Posted by: ulteriorepicure | Apr 25, 2005 1:09:04 PM
If this definition does pass, how good for us! We can then watch the Right scramble to defend marriage. With this definition, a percentage of married, heterosexual couples will no longer be married.
Posted by: Jay Sennett | Apr 26, 2005 8:57:51 AM
in which case a lady I know well who is the definition of feminity is not legally a woman, being infertile in still her twenties.
i want to be all smart and adult about this but I can't so I'm just gonna say - how absolutely and utterly dumb.
Ps. Is there a corresponding defintion for what a "man" is? I'd like to hear that. And if there isn't I'm not surprised.
Posted by: anna. | Apr 26, 2005 10:00:04 AM
Anna, there isn't (naturally!). Jay, I had not thought about that. You've a point that it potentially could impact the gay marriage debate. However, what I suspect will happen is that debate will trump and have the effect of confining this definition. Moreover, since marriage is a state issue and several states HAVE defined woman (differently) it may end up having no impact. And, btw, once a marriage is validly entered into no one except the parties can render it void. That's why a marriage between two opposite sex people, validly entered into, is still operative after one of them legally changes sex.
Posted by: Denise | Apr 26, 2005 10:12:24 AM
Hate to be a party poop Denise, but marriages can be "void" or "voidable." Your definition fits the "voidable" catagory. Marriages can be dissolved by parties other than those involved (bigamy and minority are 2 that come to mind). If a state were to make same-sex marriage void, we'd be screwed.
Posted by: Michelle | Apr 26, 2005 10:54:00 AM
Hmmm. Well, I think you're wrong. The state cannot pass a law that makes something illegal that was legal at the time of the act. That's a constitutional guarantee and I think we'd win that. And, my point was that the marriages validly entered into cannot be rendered void by someone other than the parties (i.e. the state). Both of your examples are currently invalid so the marriages would be void (or is it voidable? I've not yet taken family law. Is a marriage entered into by two same sex people (outside MA) void or voidable?).
Posted by: Denise | Apr 26, 2005 11:12:42 AM
That is... um... interesting.
Posted by: Maria | Apr 26, 2005 1:06:44 PM
The definition of woman, I mean.
Posted by: Maria | Apr 26, 2005 1:10:04 PM
Let's see a definition of man...working testes and, what, adequate sperm? ejaculate? ability to impregnate?
The definition of woman served up proves a prejudice I have of the right: they aren't very smart and have nothing innovative to say about the human experience...which means in the long run we will win.
I love the discussion between the lawyers. Keep it up!
Posted by: Jay Sennett | Apr 26, 2005 2:01:51 PM
I would assume that the definition only pertains to the act. Congress is free to make definitions as it sees fit, heck, it could define "sky" as the compound composed of two hydrogen and one oxygen atoms in an act, while retaining the plain meaning of "sky" for all purposes other than the act.
Posted by: Ming | Apr 26, 2005 4:13:15 PM
I agree with Ming. Since it's the "Unborn Child Pain Awareness Act", it makes perfect sense to exclude all those persons who will never carry a unborn child.
Whether it's a good idea to do so by (re)defining the term "woman" is another question ...
Posted by: | Apr 26, 2005 6:37:30 PM
That's not another question -- that is the question. It makes perfect sense to exclude all those persons who will never carry an unborn child -- say "a person capable of becoming pregnant" or some such language. But to define "woman" in a federal statute that could then be incorporated into other law all the more easily? Of course it applies only to the Act -- for now.
Posted by: Denise | Apr 26, 2005 6:47:12 PM
Is an infertile woman "a person cabable of becoming pregnant," I wonder? Maybe those women are not women. And I guess women who have hysterectomies are not women. What about females who are born without ovaries (or is this just a nonexistent hypothetical birth defect I've come up with?) And I guess after menopause you're no longer a woman either since you are no longer capable of becoming pregnant. This bill is some ridiculous and scary stuff! Is it likely to pass?
Posted by: E | Apr 26, 2005 7:14:33 PM
Sure, why not? The dictionary defines a woman as a female over the age of majority. Plain meaning without a defnintion would make the act inapplicable to females under the age of majority. Whether the definition is good or not is debatable, but a definition is necessary for the act. And as you've stated, it excludes heterosexual females who cannot have children. I might add, the definition includes females who are homosexual who can have children. I doubt such a definition will have effect beyond this act.
Posted by: Ming | Apr 26, 2005 10:50:11 PM
It is so popular to poke little holes in the biological standard of womanhood, but an alternative, non-circular, definition is so rarely offered.
Posted by: Buki | Mar 16, 2007 10:54:26 PM
Would you offer one, Buki? The problem of such an alternative is -- well, real life. People don't actually fit into nice, neat little binary categories like "man" and "woman" as some would like to think they do. Hence, any attempt to actually name them as such, necessarily fails.
Posted by: Denise | Mar 18, 2007 7:02:33 AM
I can't actually. I've had so much trouble trying to think of definition for "woman," that isn't based off of physical sex.
A popular definition I hear often is, "a woman is anyone who considers themselves a woman," but this one fails when you ponder the fact that it has the word "woman" in the definition for "woman".
Posted by: Buki | Mar 18, 2007 4:58:38 PM
I have no problem with defining "woman" differently for different purposes, as long as the definition isn't grossly underinclusive. Defining "woman" by "fertile" is grossly underinclusive. The statute could have been sensibly written had it simply said, "FERTILE WOMAN- The term 'fertile woman' means a female human being who is capable of becoming pregnant, whether or not she has reached the age of majority."
This is different from the definition of "woman" generally used for bathroom separations, where "woman" means a person with certain outward anatomical characteristics, particularly the capacity to void urine through a vulva rather than through a penis.
This is different again from the definition of "woman" used by the Michigan Women's Music Festival, where "woman" means a person who was defined as female at birth (regardless of actual chromosomal makeup).
I think it's stupid to try to find a universal definition for the term "woman." We are better off specifying that we are referring to a particular *kind* of woman, whether it is "fertile woman," "vulva-ed woman," "woman-born-woman," etc. Even if our motive is to be able to exclude other types of women (as with the Music Festival), at least this is honest about such exclusion. Ditto the Boy Scouts -- rename them the Heterosexual, "Male"-Acting, Born-with-a-Penis Scouts, and they'd pass constitutional muster even with the Dale dissenters.
Posted by: PG | Mar 19, 2007 2:40:13 PM
I'm pretty sure that the Boyscouts still considers them men, if they're homosexual; unfairly refusing to hire someone isn't the same as denying their sex.
Can you think of a good trans-inclusive def. though, that isn't based on body?
Posted by: Buki | Mar 20, 2007 4:49:49 PM
Buki,
The Boy Scouts are supposedly scouts who are boys (as distinguished from the Girl Scouts, who are scouts who are girls). By having a further limitation where one can be a Boy Scout only if one is a particular KIND of boy, i.e. one whose sexual attraction is only to girls, I would say that merely calling themselves "Boy Scouts" is somewhat misleading. I am joking about the renaming, however; the point of the Dale dissent is that prior to firing Dale as a scoutmaster, the Scouts had not clearly and openly stated that homosexuals were not allowed in the Scouts. Parents who had reason to think their sons might be homosexual were keeping in the Scouts because there was nothing in the rules to make them think homosexuals were not permitted.
I'm confused as to what you want your "trans-inclusive definition" *for*. By default, I assume that anyone who consistently says she is a woman is a woman, and anyone who consistently says he is a man is man. (Someone who claimed to be a man in order to have a combat position in the military, but claimed to be a woman in order to be eligible for a particular scholarship, would strike me as a person who does not fit in my default.) If I started an organization whose membership was to be entirely female -- e.g. "Female Law Student Bloggers Network" -- I would accept as members people who may not have been born with XX chromosomes, vaginas or "female" on their birth certificate, so long as those people were consistently identifying themselves as women at the time they sought membership and for the length of their membership. Someone who joined and later identified as male would no longer be eligible. This of course is a binary view of gender, but it seems to me that if we are to have blanket terms of "men" or "women," that itself is the binary and I am simply adapting to it.
Posted by: PG | Mar 21, 2007 4:14:59 PM
Woman. I'm looking for a trans-inclusive definition of "woman".
So, basically what you're saying is that a woman is "someone who consistently identifies as a woman"? If that is that case, I have a hard time accepting a definition that has the word, which it's meant to define, in it.
Posted by: Buki | Mar 21, 2007 6:15:57 PM
But if the definition is to be trans-inclusive, it necessarily recognizes that "woman" is a choosable identity, not an objective state. If you like, I can change it to "a woman is someone who consistently identifies as female rather than male," though "female" and "male" are somewhat different than "woman" and "man" (as Safire discussed in his most recent language column).
Being of the opinion that gender is a social construct, and that trans people are to some extent both adopting and subverting that construct, I don't think there's a way to define "woman" trans-inclusively without using the term itself or some synonym. If something is considered a social construct, it cannot have much of a definition outside itself. If we deem "white" to be a social construct, then someone who consistently identifies as "white" *is* white, even if he might have more DNA that is identified with the African continent than with Europe.
If we say that gender is not a social construct, then necessarily some trans people will be excluded from the definition. If we say a woman must have a vagina, M2Fs who have not had surgery are excluded. If we say a woman must behave in certain ways that traditionally are identified as "feminine," we exclude some women within American society and many more on societies that do not share our traditions. Therefore I think consistent self-identification is the only way to include trans people while keeping the social construct from collapsing entirely. (Some whites, for example, are attempting to collapse the social construct of race as it relates to affirmative action, either by refusing to identify their race or by claiming one that they and their genetic forebears had not consistently claimed. Claiming to be Native American is a particularly popular strategy.)
Posted by: PG | Mar 22, 2007 4:31:28 AM
So, you can't think of one that isn't circular, either....
Posted by: Buki | Mar 22, 2007 11:16:54 AM
Well said, PG! I was thinking the exact thing and when I went to write it early this morning I was delighted to find your much clearer explanation.
Obviously, as Buki hopefully grasps, it's not a question of being able to think of a non-circular definition; it's a question of logically understanding that when something is itself abstract (constructed independent of reality) it cannot be defined in any other way.
Posted by: Denise | Mar 22, 2007 3:32:24 PM
Thanks, Denise.
Buki, the reason I asked earlier what you wanted your definition for was that I'm unclear about what your own views on sex and gender are. I tend to distinguish between "transsexual" and "transgender," with the former being people who have the physical characteristics associated with people born in the sex the transsexual has chosen. So if we want a transsexual inclusive definition of "woman," that's relatively simple: has vagina, along with some varying combination of secondary sex characteristics (enlarged breasts, less facial hair, higher voice).
I consider people to be transgender-but-not-transsexual if they do not have the physical characteristics associated with people born in the gender the transgendered person has chosen. Because the transgendered person has chosen a gender, a social construct with a tenuous relationship to physical reality (hence the concepts of tomboys, feminine boys, etc.), we define this person by the choice she has made rather than by physical characteristics. She has chosen to be a woman.
If I were running a women's health clinic exclusively to give mammograms and pap smears, I admit that I would not include transgendered women in that definition of "woman" because the only aspect of "woman" relevant to my clinic (possession of breasts and vagina) is not present in the transgendered woman. It would, however, be presented in the transgendered man; in this instance, I would count someone who had chosen male identity, while retaining a body subject to breast and cervical cancer, as a "woman" for those purposes.
If I'm doing a "women's number" for the annual law revue show, on the other hand, a transgendered woman is welcome to be part of it, as she identifies with and is willing to play with tropes of femininity rather than regarding them just as drag (as a transgendered man might). However, a transsexual woman might have an easier time with high pitched singing if her voice also has become more feminized. (In reality, the "women's number" we're doing this semester demands such low, flat notes for the bottom of the recurring chord that I'm straining both my second soprano voice and my friendship with the song's director.)
Buki, I notice my comments all have been long while yours have been short, perhaps because we may have different views of gender and sex. Mine are rather complicated (and not necessarily shared by the majority or even by our hostess). If you expect a simple answer to "what is a woman?" from someone for whom gender is a social construct, you will be disappointed. If you don't recognize a distinction between gender and sex, and require sex not to be a social construct, then I don't see a transgender-inclusive definition of woman for you. I can offer a transsexual-inclusive definition, however: "woman" is a person who has a vagina, and any or none of the following: enlarged breasts, less facial hair, more subcutaneous fat. Yay! simplicity!
Posted by: PG | Mar 23, 2007 5:35:58 AM
