SEX NEUTRALITY

This article closes out the volume on Sex in Law in which it appears with reflections on the normative question whether it would be best on balance if the law were to evolve to be sex neutral. Specifically, it considers whether—as some observers and policymakers have suggested—we would be better off if law could not see or act on the basis of sex, and if it prohibited regulated institutions from doing the same. Arguably, this move is the next logical step in the evolution of law’s treatment of sex from its historical use as a basis for ordering society according to the state’s general police powers to its increasingly limited modern use by both the states and the federal government as a basis for addressing discrimination and the differences that continue to stand in the way of sex equality. Because the question focuses on the law’s attention to biology, throughout I use the word “sex” in its still standard sense, to mean “either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions);”1 or, one of the two sets of physical traits that together make up what we commonly think of when we hear and say “sex.”2 Although it’s popular in this period to say that sex isn’t binary,3 in this reproductive sense it undoubtedly is: Apart from the extremely rare incidence of ovotesticular disorder,4 we either have testes that produce small gametes (sperm), or we have ovaries that produce large gametes (eggs).5 Moreover, “[a]lthough there is some dispute at the margins, it is generally accepted that . . . more than 99% of the time, an individual’s biological sex traits are fully concordant;”6 that is, our primary and secondary sex characteristics— including our external phenotypes—almost always distribute bimodally based on whether we have or don’t have a Y chromosome.7 As I’ve written elsewhere, to see sex as a spectrum or as merely a constellation of sex-linked traits requires turning a blind eye to this fact and its significance.8 Specifically, together with the related fact that “[s]ex differences . . . exist in the first instance as a reproductive and species imperative,”9 “this biology, including the bimodal distribution, is the basis for the ubiquity of sex as a societal taxonomy.”1