It’s “Brass Tacks” Time in the Tennessee on Sex and Gender
Mar 10, 2023 by David Fowler
Last week the Tennessee legislature sent legislation to the governor allowing persons to sue health care providers for civil damages resulting from medical treatments administered for the purpose of gender transition. This week the sex-gender issue rises again with a bill running through the legislative committee system. Some in state government have made a mess of this issue, and it spells trouble.
The bill in question this week (Senate Bill 1440 /House Bill 239) is very simple. It states that wherever the word “sex” is used in the Tennessee Code it means “a person's immutable biological sex as determined by anatomy and genetics existing at the time of birth and evidence of a person's biological sex.”
But there is an exception. This definition applies “unless the context otherwise requires.” The exception serves to highlight the mess that has been made of the relation between sex and gender. And judges, not your representatives, are likely to resolve the mess.
The word “sex” is used in Tennessee’s statutes 262 times by my computer-generated count and the word “gender” is used 71 times. Here is one place in which the distinction comes into play.
One of the persons who testified in opposition to SB 1440/HB 239 said that Tennesseans use their gender identity on a driver’s license as their designated “sex,” not their biological sex. At this point I don’t know who decided that sex on a driver’s license meant or included gender identity, but that is one place in which the exception will have to be sorted out by a court.
The trickiest issue created by SB 1440/HB 239 will be its application to words like “mother,” “father,” “husband,” “wife,” “male,” and “female.” Those are clearly sex-based words, unless sex and gender are different, in which case they may be gender-based words unrelated to biological sex. If it is a case of the latter, then those words will be unaffected by SB 1440/HB 239.
I would say there is no difference between sex and gender, that there is a true correspondence between one’s biological sex and gender. I would say that because I believe there is a fundamentally true and concrete nature to human beings, we are either male or female.
I also would also say that until the last nano-second of human history gender was a grammatical construct providing agreement between nouns and biological sex. A biological male would always be referred to as he, him, his; in a marital relationship, as a husband in contradistinction to a wife; and in a parental relationship as a father.
But, as demonstrated below, the current attorney general’s predecessor has introduced into state law a sex-gender confusion that otherwise would not exist. This, I believe, will create a mess with respect to the application of SB 1440/HB 239 and may create challenges to defending SB 1/HB 1 against a constitutional challenge.
In 2016, I filed a lawsuit that put at issue the meaning of words in the marriage licensing statute which, then as now, requires the two applicants be “male and female.”
I argued that until those words were changed by the legislature, a county clerk has no authority to issue a license to a “male and male” or a “female and female.” But the previous attorney general rushed in with a brief to say I was wrong.
In his brief that attorney general said “gender” was not a form of pronoun corresponding to the unique biology of male and female. He wrote that in the “marital context”—context being a key word in SB 1440 /HB 239—a “gender-inclusive directive should . . . be applied” to male and female so that male and female do not have to be tied to biological sex.
The attorney general told the court the words “male and female” in the statute could be interpreted to mean “male and female,” “male and male,” or “female and female.” In his words, “male” and “female” should be seen as biologically neutral words.
The state court agreed with the attorney general.[1]
Why would the attorney general make such a strange argument? Because, he wrote, the “intended definition”—which conceded that my interpretation of the statute was correct—“is now invalid under the 14th Amendment.”
To support that proposition, the attorney general cited the United States Supreme Court’s decision in Obergefell v. Hodges (2015). Obergefell is the decision that said male and female were not relevant categories of being in regard to the marital relationship.
If biological realities are not relevant in the “context”—again using the word in SB 1440 / HB 239—of the one institution society historically defined and understood as existing only in relation to the biological sexes of male and female, why should biological sex and words ostensibly tied to biological sex matter anywhere in the law?
Did the attorney general abdicate our state’s sovereignty over the meaning of sex to the United States Supreme Court?
Moreover, won't the same “contextual” exception rationale applied to state marital statutes not also apply when the word “sex” in a statute would constitute a violation of federal statutory law? Doesn’t the Supremacy Clause require that any conflict between state and federal law be resolved in favor of federal law?
Or consider this more mundane “context” exception. Specific to SB 1440/HB 239, the legislature’s budgetary office has officially noted that various “federal grants specify an alternate definition of ‘sex’” and that this could “put at risk” a little over $2 billion in federal funding.
Will the present attorney general argue that the “context” for the word “sex” in statutes that might cost the state federal money is one that “requires,” in the attorney general’s words, “a gender inclusive directive?”
Two years later, the same attorney general officially opined that “[a] transgender person is ‘one who identifies with a gender other than that person’s biological gender,’ Tenn. Att’y Gen. Op. 16-15 (Apr. 11, 2016) (citing New Oxford Am. Dictionary (3d ed. 2010).” Now gender seems to be both non-biological and biological! How confusing is that?
The opinion was issued for the purpose of determining whether the word “gender” in a criminal statute included a “transgender person” or meant only “biological gender.” In the latter case, the word “gender” would be viewed as a generic substitute (a metonymy) for writing “male or female.”
But to the attorney general, a transgendered male was, for example, the same as a biological male or biological female. Put another way and using the words of the U.S. Court of Appeals for the Fourth Circuit, a transgender boy’s identity is no “less consistent, persistent and insistent than any other boy.”[2] In the vernacular, “boys will be boys” no matter how different they are biologically.
So, what will this bill defining sex do? I don’t know. But unless our current attorney general reverses course from his predecessor, it may not do much. Absent that, and despite the sponsors’ worthy intentions, I suspect it will not keep biological sex from being separated from gender identity whenever in state statutes that distinction would be important to the transgender community.
I’m not sure what the effect of SB 1440/HB 239 will have on SB 1/HB 1, but if I understood the arguments in favor of the latter, the legislature was at least intimating that an incongruity between one’s sex (body) and gender was a mental health problem.
But that categorization seems contrary to the position taken by the previous attorney general on three different state laws (marriage, insemination, and crime).
Maybe the previous attorney only meant that there are transgendered adults but there cannot be transgendered adolescents.
If the foregoing is confusing and hurts your head, then you are not alone. In fact, I’m not sure our legislators grasp the mess that has been created by our previous attorney general and our state courts.
But by the time some of the key state legislators are deposed as part of the soon-to-come federal court litigation over SB 1/HB 1, they better know. And they probably should be prepared to say they disagree with the position espoused by our previous attorney general.
[1] I worked on a similar case in 2018. In that case, the statute, enacted in 1977, referred to the consent of a “married woman’s husband” and referred to the two of them as “husband and wife.” The attorney general argued that the word “husband” in a statute addressing artificial insemination should be interpreted in a gender-neutral manner to mean simply “spouse” (even though, in 1977, a married woman could not have a woman as a “spouse”!) By attorney general persuasion and judicial fiat, a woman was now the person who could give the consent to a wife’s artificial insemination. So, instead of husband being a gender noun grammatically tied to biological sex, it was really a gender-neutral term “spouse,” and included a woman. How is that for rewriting a state law!
[2] Grimm v. Gloucester County School Board, 972, F.3d 586, 610 (2020).
The bill in question this week (Senate Bill 1440 /House Bill 239) is very simple. It states that wherever the word “sex” is used in the Tennessee Code it means “a person's immutable biological sex as determined by anatomy and genetics existing at the time of birth and evidence of a person's biological sex.”
But there is an exception. This definition applies “unless the context otherwise requires.” The exception serves to highlight the mess that has been made of the relation between sex and gender. And judges, not your representatives, are likely to resolve the mess.
“Sex” and “Gender” in Tennessee’s Statutes
The word “sex” is used in Tennessee’s statutes 262 times by my computer-generated count and the word “gender” is used 71 times. Here is one place in which the distinction comes into play.
One of the persons who testified in opposition to SB 1440/HB 239 said that Tennesseans use their gender identity on a driver’s license as their designated “sex,” not their biological sex. At this point I don’t know who decided that sex on a driver’s license meant or included gender identity, but that is one place in which the exception will have to be sorted out by a court.
Gender: grammar, sex, or personal “identity”?
The trickiest issue created by SB 1440/HB 239 will be its application to words like “mother,” “father,” “husband,” “wife,” “male,” and “female.” Those are clearly sex-based words, unless sex and gender are different, in which case they may be gender-based words unrelated to biological sex. If it is a case of the latter, then those words will be unaffected by SB 1440/HB 239.
I would say there is no difference between sex and gender, that there is a true correspondence between one’s biological sex and gender. I would say that because I believe there is a fundamentally true and concrete nature to human beings, we are either male or female.
I also would also say that until the last nano-second of human history gender was a grammatical construct providing agreement between nouns and biological sex. A biological male would always be referred to as he, him, his; in a marital relationship, as a husband in contradistinction to a wife; and in a parental relationship as a father.
But, as demonstrated below, the current attorney general’s predecessor has introduced into state law a sex-gender confusion that otherwise would not exist. This, I believe, will create a mess with respect to the application of SB 1440/HB 239 and may create challenges to defending SB 1/HB 1 against a constitutional challenge.
The Previous AG says “male” and “female” are gender neutral words
In 2016, I filed a lawsuit that put at issue the meaning of words in the marriage licensing statute which, then as now, requires the two applicants be “male and female.”
I argued that until those words were changed by the legislature, a county clerk has no authority to issue a license to a “male and male” or a “female and female.” But the previous attorney general rushed in with a brief to say I was wrong.
In his brief that attorney general said “gender” was not a form of pronoun corresponding to the unique biology of male and female. He wrote that in the “marital context”—context being a key word in SB 1440 /HB 239—a “gender-inclusive directive should . . . be applied” to male and female so that male and female do not have to be tied to biological sex.
The attorney general told the court the words “male and female” in the statute could be interpreted to mean “male and female,” “male and male,” or “female and female.” In his words, “male” and “female” should be seen as biologically neutral words.
The state court agreed with the attorney general.[1]
Why would the Previous AG say “male” and “female” are gender neutral words?
Why would the attorney general make such a strange argument? Because, he wrote, the “intended definition”—which conceded that my interpretation of the statute was correct—“is now invalid under the 14th Amendment.”
To support that proposition, the attorney general cited the United States Supreme Court’s decision in Obergefell v. Hodges (2015). Obergefell is the decision that said male and female were not relevant categories of being in regard to the marital relationship.
If biological realities are not relevant in the “context”—again using the word in SB 1440 / HB 239—of the one institution society historically defined and understood as existing only in relation to the biological sexes of male and female, why should biological sex and words ostensibly tied to biological sex matter anywhere in the law?
Did the attorney general abdicate our state’s sovereignty over the meaning of sex to the United States Supreme Court?
Moreover, won't the same “contextual” exception rationale applied to state marital statutes not also apply when the word “sex” in a statute would constitute a violation of federal statutory law? Doesn’t the Supremacy Clause require that any conflict between state and federal law be resolved in favor of federal law?
Or consider this more mundane “context” exception. Specific to SB 1440/HB 239, the legislature’s budgetary office has officially noted that various “federal grants specify an alternate definition of ‘sex’” and that this could “put at risk” a little over $2 billion in federal funding.
Will the present attorney general argue that the “context” for the word “sex” in statutes that might cost the state federal money is one that “requires,” in the attorney general’s words, “a gender inclusive directive?”
Tennessee’s previous AG doubles down on separating sex and gender
Two years later, the same attorney general officially opined that “[a] transgender person is ‘one who identifies with a gender other than that person’s biological gender,’ Tenn. Att’y Gen. Op. 16-15 (Apr. 11, 2016) (citing New Oxford Am. Dictionary (3d ed. 2010).” Now gender seems to be both non-biological and biological! How confusing is that?
The opinion was issued for the purpose of determining whether the word “gender” in a criminal statute included a “transgender person” or meant only “biological gender.” In the latter case, the word “gender” would be viewed as a generic substitute (a metonymy) for writing “male or female.”
But to the attorney general, a transgendered male was, for example, the same as a biological male or biological female. Put another way and using the words of the U.S. Court of Appeals for the Fourth Circuit, a transgender boy’s identity is no “less consistent, persistent and insistent than any other boy.”[2] In the vernacular, “boys will be boys” no matter how different they are biologically.
Getting down to brass tacks—what will SB 1440/HB 239 do?
So, what will this bill defining sex do? I don’t know. But unless our current attorney general reverses course from his predecessor, it may not do much. Absent that, and despite the sponsors’ worthy intentions, I suspect it will not keep biological sex from being separated from gender identity whenever in state statutes that distinction would be important to the transgender community.
Effect of the foregoing on the transgender legislation of last week
I’m not sure what the effect of SB 1440/HB 239 will have on SB 1/HB 1, but if I understood the arguments in favor of the latter, the legislature was at least intimating that an incongruity between one’s sex (body) and gender was a mental health problem.
But that categorization seems contrary to the position taken by the previous attorney general on three different state laws (marriage, insemination, and crime).
Maybe the previous attorney only meant that there are transgendered adults but there cannot be transgendered adolescents.
Conclusion
If the foregoing is confusing and hurts your head, then you are not alone. In fact, I’m not sure our legislators grasp the mess that has been created by our previous attorney general and our state courts.
But by the time some of the key state legislators are deposed as part of the soon-to-come federal court litigation over SB 1/HB 1, they better know. And they probably should be prepared to say they disagree with the position espoused by our previous attorney general.
[1] I worked on a similar case in 2018. In that case, the statute, enacted in 1977, referred to the consent of a “married woman’s husband” and referred to the two of them as “husband and wife.” The attorney general argued that the word “husband” in a statute addressing artificial insemination should be interpreted in a gender-neutral manner to mean simply “spouse” (even though, in 1977, a married woman could not have a woman as a “spouse”!) By attorney general persuasion and judicial fiat, a woman was now the person who could give the consent to a wife’s artificial insemination. So, instead of husband being a gender noun grammatically tied to biological sex, it was really a gender-neutral term “spouse,” and included a woman. How is that for rewriting a state law!
[2] Grimm v. Gloucester County School Board, 972, F.3d 586, 610 (2020).
