Marsha Blackburn asked Ketanji Brown Jackson to define ‘woman.’ Science says there’s no simple answer.
Ketanji Brown Jackson’s confirmation hearing Tuesday, Sen. Marsha Blackburn (R-TN) 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.
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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.”
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“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?”
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“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.”