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.

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