What Makes a Woman: Why We Cannot Be Defined

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Clara Barnhurst

There are many reasons legal terms have a certain vagueness in them. It’s future proofing, for a start: the law must be flexible as societal norms change. Sometimes, it’s unintentional, which leads to some interesting applications. Part 5 of the Serious Crime Act 2015 is a really good example of a law designed to stop one thing and ended up being quite broadly applicable. Other times, a term is left vague because nobody can come up with a decent definition, and that’s the problem the UN will potentially face.

A good legal definition is narrow. It’s specific in its boundaries: it creates a class of thing that is easily applied to individual cases, accommodates change, and doesn’t exclude things understood to fit the definition. It does all this, but it also needs to exclude things understood to not fit the definition. In an international treaty, it needs to be sensitive to each signatory’s practises at the time, but also create a premise for conformity: the idea is to make signatories change how they do things. Trump wants to define what a woman is legally so most of the world has to conform to it.

The guidelines the Trump administration is using come from the right-wing hate group the Family Research Council (don’t read them if you don’t have to). For them, the legal definition of woman is merely one’s assigned gender at birth. Obviously this is an attack on transgender and intersex people and it legitimises gender reassignment surgery on babies. But it’s bigger than us.

Many countries are starting to not assign a gender on birth records. Canada and Denmark most notably, with others in open discussion about it, particularly in the EU. The EU is of particular interest here because the European Court of Human Rights has been quite clear that gender protections are to include persons outside the binary. Gender self determination is a hot issue at the moment, but the courts here appear to support it. Though some countries under the ECHR, like Russia, will probably continue persecuting people, it’s unlikely the EU signatories of the treaty will change their thinking because of what the UN says; the UN treaties are viewed as a bare minimum. If the legal definition of woman is that they were assigned female at birth, one of the most powerful regions in the world will potentially render that definition useless on an international level.

So birth records are problematic, and even in the United States there are problems doing what the right wing wants: some states scrub records when a birth record is changed to reflect one’s gender reassignment. Of course, the US is able to legislate such that birth records cannot be changed, but that fight is far from decided with a trend of states making things easier for transitioning people. That wave is difficult to reverse, even with powerful bigots in charge.

So what else makes a woman? A uterus? Except we know afab people don’t always have uteruses at birth. Chromosomes? Again, we have ample exceptions that date back decades. A definition that doesn’t include biology will land the far right where we are now, with transgender people existing.

What about brain scans? We know that gender is in the brain more than anatomy. The research is ongoing and we’re still finding out more about how our neural makeup contributes to our genders, but we could do that. Unfortunately, that doesn’t achieve what the far right wants either: at that point we ignore body configuration, which seems to be what they’ve latched onto.


So let’s talk about body configuration. We have a long history of variation and non conformity; intersex people are at the vanguard of this and they are the most victimised by the far right’s assault. Two percent of the world is intersex, an estimated one-hundred and fifty million people — about seven million Americans. If the worst happens and they start rounding us into camps, they’ll need ghettos the size of a few major cities to contain us all. Or they mutilate babies, which they’re already doing.

But we’re just talking about the minorities here. What about cisgender people who fail the test? What do we do with them? If we create a legal definition of woman based on birth assignments and someone typoes the certificate, what happens then? We end up sending a cisgender person to some conversation therapy camp. If we use brain scans, what if someone is happily living their lives in a gender role contrary to their brain scans? Do they get scanned one day and then find themselves forced to change?

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I don’t see any way of verifying a legal definition for woman that doesn’t punish cisgender people. Of course, this isn’t about creating a viable model. This is about hate. Cruelty. The far right don’t want a legally sound definition of woman, they want to be able to look at a person and decide for themselves. They are using the legal systems in place because they are in a position to do so, but this isn’t about making good law.

The problem with bad law is it ultimately targets the wrong people. It will succeed in the genocide of all the transgender, intersex, and non conforming folks, but it will also succeed in seriously harming cisgender folks that get caught in the system. The law will apply to everyone. It won’t stop with us. Law enforcement normally allows for a certain amount of crime to just happen because the alternative is to treat everyone like a criminal, but these people are so fixed in their hatred they don’t mind who gets trodden on. Collateral damage is, for them, an acceptable price to pay to kill us all.


This thing affects all of humanity. Cisgender people are already being caught up in it; the bathroom controversy shows how silly it is. People who supposedly have nothing to fear are being watched or attacked for using the thing they’re told to use. This won’t stay in the toilets, even if it does need to be flushed away.

We have no definition of woman because it’s too difficult to account for the natural variation we all have, but the far right doesn’t care. This is an inquisition, not a trial, and the inquisition will come for cisgender people just as it will for the rest of us gender heretics. Hopefully the UN will see that. If they don’t, it will become clear in time that it’s unviable. It will work out. I just worry over how many are hurt or killed before it does.


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