GENDER: the characteristics, assumptions, expectations and 'scripts' ascribed by societal forces to a particular biological SEX.

SEX: the biological characteristic of humans known as male and female.

The point of today’s class is to get a full appreciation for the inherent nature of gender hierarchy and the degree to which it is embedded in our society.

The Fausto-Sterling piece is a distillation of a classic article which details the generally surprising way the identity characteristic of sex is also a site of contestation and a social construct, as opposed to gender, which is generally accepted/expected to be socially constructed.

But first, let’s think about the ways in which the social construction of gender is similar/different to the social construction of race. In "The Social Construction of Race" Ian Haney Lopez discussed features of “race formation”:

1. races are human constructs
2. race is an integral part of a whole social fabric that includes gender and class relations
3. meaning-systems around race change rapidly
4. races are constructed relationally

Clearly “gender formation” has all these features and more. It is a binary, i.e. there are only two genders: masculine and feminine

The fact that gender has a dualistic nature means that it also has a dichotomous hierarchy: (masculinity is superior/femininity is inferior).

Note, though that not all the characteristics associated with one half of the binary is positive, and the corresponding characteristics on the other half is negative. This is similar to the White/non-White binary.

Intersexuals have a combination of both male and female sexual characteristics. Examples, are the herms (short for hermaphrodite) having both testes and ovaries, the merms have testes and XY chromosomes but also a vagina and clitoris, while ferms have ovaries, XX, sometimes a uterus but some external male genitalia.

The point Fausto-Sterling is making is that sex, far from being a strict binary feature, should really exist on a continuum from male to female.

Greenberg highlights this point in addition to the fluidity/plasticity of sex by pointing out that the taxonomy of individuals by sex occurs on an 8-point scale :

1. genetic or chromosomal sex (i.e. XX, XY, though even here one can get all sorts of combinations like XXY, XO, etc)
2. gonadal sex (testes or ovaries, that produce gametes)
3. internal morphological sex (uterus, prostate glands, etc)
4. external morphological sex (penis; vagina, breasts etc)
5. hormonal sex (testosterone, progesterone, estrogen)
6. phenotypic sex (beard, wide shoulders, low voice; wide hips, high voice, smooth skin)
7. assigned sex/gender of rearing (nurture: raised as a boy or girl)
8. gender identity (mental/emotional self identification)

When is a man a man, and when is a woman a woman? Littleton v. Prange, 9 S.W.3^rd 223, 223.

Note how similar the epigram is to “Then, what is white?” from Ex Parte Shahid, 205 F 812, 813 (1913) racial prerequisite case from Haney Lopez’ “White By Law.” You should also notice similarities between this article and the Pascoe article.

Professor Julie Greenberg is one of the leading legal experts on analyzing transsexuality and the law and has been cited in numerous legal cases, the most prominent being Littleton itself, as well as Estate of Gardiner (Kansas Supreme Court, 2002).

Note both the Texas Supreme Court and the United States Supreme Court refused to hear Littleton (cert. denied 531 U.S. 872) so the decision of the 3 judge panel of the Texas Court of Appeals is final.