Administrative efforts to categorize sex and gender often mask a deeper project: denying protections to those who defy categorization

Each time I return to Who’s Afraid of Gender?, it feels like the perfect moment to reconnect theory with the material world. For example, as I began Chapter Two — just as the new Pope was elected — I had no idea it would focus on Catholic perspectives. Now, as I approach Chapter Four, titled Trump, Sex, and the Supreme Court, there isn’t a single legislative change or viral quote that immediately comes to mind. Instead, what surfaces is a broader feeling: the sense of an administration systematically stripping away protections from marginalized groups, especially the LGBTQ+ community.

Butler begins Chapter Four by examining how the very concept of sex is constructed. Many people regard sex as immutable, as a matter of common sense — but “common sense” itself varies across contexts and histories. Science is implicated in this process: it doesn’t merely observe what sex is, but actively participates in defining and delimiting what it can or cannot be.

Evidently, the Trump Administration sought to categorize sex in a particular manner:

In the late weeks of his presidency, Donald Trump sought to enlist US Department of Health and Human Services to define “sex” as an unchangeable feature of a person, that is, either male or female, based on genitalia, and given an assignment at birth. (Who’s Afraid of Gender?, 112)

During Donald Trump’s first term, his administration sought to define ‘sex’ as immutable — an “M” or an “F” inscribed on the body, determined solely by genitalia. It should come as no surprise that the Trump Administration was committed to a gender-essentialist worldview. Yet it would be mistaken to assume that this effort arose from some sense of moral righteousness (or a love of dictionaries).

As Butler observes, the Administration’s push to fix the definition of “sex” had a specific political purpose: to deny transgender individuals protection under Title VII from discrimination “based on sex.” If sex is strictly biological and immutable, then discrimination against transgender people could not constitute sex-based discrimination. The government sought to reshape the law by appealing to what it called the “plain meaning” of the word “sex,” believing it to be common sense without further interrogation.

Butler writes:

Through this lexical fiat, the government sought to rule out the notion that sex, whether construed as a legal status or a social reality, could change in time, or that a term such as “gender” could be one way to mark the difference between an assigned sex and an abiding sense of gender identity. (Who’s Afraid of Gender?, 113)

By insisting on a “plain meaning,” the government attempted to foreclose the possibility that language itself could evolve — that sex and gender might be understood in ways not confined to biology or immutability. Trump, of course, relied on his conservative-leaning Supreme Court to uphold this gender-essentialist view, but the Court had other plans. More on that later. For now, it is important to note that this divergence did not arise from any commitment to critical or progressive understandings of sex and gender. Rather, it was a matter of legal reasoning and institutional autonomy.

Regardless, the pressure to define “sex” in the rigid terms advanced by the Trump Administration had one clear consequence: it endangered transgender people by attempting to erase their legal protections:

The strategy was clear: there can be no discrimination on the basis of sex if “sex” is defined in such a way that trans, queer, lesbian, gay, and intersex statuses are not covered by the definition. (Who’s Afraid of Gender?, 114)

Butler rightfully critiques this move. She asks if this definition of “sex” is truly plain meaning or something else entirely:

We can ask: Is this state speech or plain speech? (115)

Thankfully — and to Trump’s dismay — the Supreme Court’s decision in Bostock v. Clayton County (2020) did not affirm his administration’s view. The case centered on an employee who was fired for being gay and subsequently sued, arguing that the termination was sex-based discrimination. In a landmark 6–3 decision, the Court agreed:

One argument Gorsuch made was that losing a job because one declares or shows an attraction to someone of the same sex it surely discriminatory since the job would presumably not be lost if the person to whom one was attracted were of the opposite sex. (Who’s Afraid of Gender?, 116)

What’s especially interesting about Bostock is that, while the Court upheld protections for those who don’t fit the heteronormative mold, its reasoning focused on the treatment of individuals rather than on interrogating the underlying definition of sex. It’s crucial to remember that the Court can make a progressive decision while still relying on an outdated model of sex and gender.

Butler explains:

The Supreme Court decision draws upon a history of sex discrimination jurisprudence that focuses less on the ontology of sex than on the way assumptions about sex operate in decisions that perpetuate in inequality. (Who’s Afraid of Gender?, 117)

Ironically, even though the Court appeared to take an expansive view of sex, it still failed to address the ontological dimension — that sex itself functions as an imposed state of being, defined through arbitrary and historically contingent qualities.

Butler continues:

… sex is already in the process of being gendered. (Who’s Afraid of Gender?, 119)

When Butler makes this argument, she isn’t denying that sex or gender are real. Rather, she emphasizes that they are real constructions — social realities continually reaffirmed through discourse, institutions, and power. Those who exercise power and assert authority determine the hegemonic meanings of these terms. In particular, religious dogma and linguistic conventions work together to make sex and gender seem immutable — what is termed “common sense.”

From this point of view, how could discrimination against transgender people be possible? For Trump and Desantis, transgender people “could not suffer from sex discrimination because they are not discriminated against o the basis of their sex assigned at birth.” (Who’s Afraid of Gender?, 120).

Butler continues to discuss the Bostock decision:

… the language of the Court makes explicit that the sex of an individual can change… (Who’s Afraid of Gender?, 122)

Oddly enough, even within the confines of legal reasoning, the Court acknowledges that a person may have two distinct “sexes”: sex assigned at birth and sex identified in the present. This acknowledgment marks a striking departure from the Trump Administration’s gender essentialism. Yet it doesn’t entirely escape the logic of categorization. The Court allows for change — but only the kind of change it can recognize. Even when one’s identified sex differs from that assigned at birth, it must still conform to the legal framework that presumes sex to be a stable, classifiable category.

None of this should be taken as an affirmation of the Court as an arbiter of human rights. The Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022) stands as a stark reminder of that fact:

The state’s power over women, their sexuality and their freedom, and their right to healthcare has now become frankly frightening and grotesque. (Who’s Afraid of Gender?, 126–127)

Butler explains that the state continues to assert its power over women and all people capable of giving birth — sustained through what she identifies as a self-serving reading of the Constitution. As Butler writes:

For Samuel Alito to claim that he cannot find the term “abortion” in the Constitution, or for Thomas to claim that none of these related rights can be found there, is to refuse the application of abstract rights to concrete social issues that the Constitution did not, and could not, foresee in their present forms. (Who’s Afraid of Gender?, 127)

The most staunch conservatives on the Court — Justices Alito and Thomas — hide behind a thin veil of originalism and textualism, claiming that if the Constitution doesn’t explicitly mention something, the Court has no authority to protect it. This is, of course, a deeply flawed line of reasoning. The Court’s role has never been limited to reciting what is written; it has always involved interpreting and applying abstract rights — such as privacy — to new and evolving circumstances.

Butler writes:

Rights of equality, freedom, and justice remain abstract rights until they are implemented in concrete historical circumstances, compelled to respond to, and adjudicate new social realities over time. (Who’s Afraid of Gender?, 128)

This passage highlights how law itself is a legal fiction. There are no transcendent rights that exist “out there,” waiting to be discovered. Rights emerge in response to evolving sociohistorical conditions. Unless they are continually affirmed, they cease to exist.

Yet, our current Court has its aims on upholding a patriarchal order:

The legal framework that is emerging targets the very idea of new historical formations of freedom (and equality) and seeks to restrict freedom in the service of restoring patriarchal order backed by federal law, but also in the service of corporate finance and religion. (Who’s Afraid of Gender?, 130)

Butler also incorporates corporate finance and religion into structures that are intrinsic to the service of patriarchy. Another important point to note is that Butler makes clear that:

… expanding what legally counts as sex discrimination is not the same as expanding what counts as freedom. (Who’s Afraid of Gender?, 131)

The Court is not an ally to the people. What we are witnessing is an ongoing struggle between the people and those who hold power: between the patriarchal order and the possibility of a world founded on freedom rather than repression. Butler recognizes that, within this struggle, conflict among the oppressed is inevitable. Yet she insists that to dismantle the machinery that kills, marginalizes, and strips people of their rights every day, we must find solidarity despite our differences:

And if we fall into forms of internecine warfare when solidarity is most needed, then we fail to seize the opportunity to form new solidarities to meet the challenges of authoritarian structures and fascist passions. (Who’s Afraid of Gender?, 132)

Solidarity determines whether a movement endures or collapses. The real question is whether the people will truly come together — especially in a moment when fascism and autocracy are on the rise.