Justice Ginsburg also discussed her career as an advocate, one that included six Supreme Court arguments and a role in shaping the language of the law. She helped introduce the term “gender discrimination” as a synonym for “sex discrimination,” she said, explaining that her secretary had proposed the idea while typing a brief to be submitted to male judges.

“ ‘The first association of those men with the word “sex” is not what you’re talking about,’ ” the secretary said, Justice Ginsburg recalled. “ ‘Why don’t you use a grammar-book term? Use gender. It has a neutral sound, and it will ward off distracting associations.’ ” (New York Times, April 12, 2009)

When I teach “gender” I make it a major point that the cultural transformation of sexual dimorphism into labels, cautionary tales, practices, rituals, etc., that is, precisely “associations” must mean that there must be an indefinite number of genders in any culture. Thus gender and sex are not homonyms within the same paradigm. The word “gender” as it had started to be used even before Ginsburg can refer to much more than “sex without ‘male’ fantasies about sexual activity.” For Ginsburg, and for American law as it is enforced by Congress and the Supreme Court, that is for American culture at its most hegemonic, there can be only two genders, like there kind be only two sexes. For those of us in anthropology who have been trying to model “America,” from David Schneider (1968) onwards, this makes complete sense. I have moved far from Schneider’s view of culture as purely as “system of symbols.” “Culture” is a matter of enforced historical constructions that become inevitable for those who encounter them (rather than a matter of enculturation), and it is an ongoing “immortal” process (Garfinkel 2002) constituted by the instructions people give each other about what to do next so that an order can be maintained. But Schneider was on to something for there is evidence that the American a-constituting order on the matter of sex should insist on the possibility of only two genders directly. This is the reality we all encounter when we enter the worlds ruled by America.

Given this reality, it makes sense that behavioral science research, when it attempts to demonstrate that it pay attention to “gender,” and particularly in “policy relevant” research—including research that might be quoted in the Supreme Court and might transform laws and regulations—, would be required to distinguish only two genders and assume that the respondents will respond in terms of their identity as imposed by those who first identified them as either ‘male’ or ‘female’ at birth (or after a judicial process of re-naturalization as the other in cases of “sex change” surgery). As Schneider first noticed, this is a matter of genitalia, reinterpreted, if necessary, by biologists as experts in sexual dimorphism.

This makes American sense, and by almost any theory of culture, it makes no human sense to the extent that it erases a whole range of possibilities even as it further inscribes one possibility. Not only does it make it more difficult to understand “other cultures,” but it also makes it difficult to notice what happens in the areas ruled by America (mostly in the United States but also almost anywhere else in the world given the imperial reach of American hegemony). That point was made recently by educational researchers (Glasser and Smith 2008). By stratifying samples purely in terms of ‘gender’ (as polite ‘sex’), much differentiations is erased. Aspects of “queer theory” make the same point.

I would go further. The problem with moving from simple “gender” to “gender orientation” is that it reinstates sexuality as the core as if the main issue was the nature of sexual pleasure and the defense of the public affirmation of all types of means for achieving it. But the cultural transformation of sex into gender, as any other such transformations, is going to make something that will make much more than sex. It will introduce the arbitrary in all sorts of way. Think for example of the association of color and sex for American infants (blue vs. pink) and then for adult males. These classificatory associations are what culture is all about Lévi-Strauss taught us a long time ago. ‘Pink’ is not gendered, but sex is multiply and differentially gendered when it becomes associated with colors—or legal argumentation.

References
Glasser, Howard, and John P. Smith
2008 “On the vague meaning of ‘gender’ in education research: The problem, its sources, and recommendations for practice. Educational Researcher, 37, 6, 343-350.