The Foundations of Legal Equality

With sex and gender becoming such politicized and polarizing issues recently, what’s a common sense approach to sorting through all the information to better understand the issues at hand? How have different struggles for equal rights throughout history shaped and informed these common-sense positions?

Doriane Lambelet Coleman is a professor at Duke Law School, specializing in scholarship on women, sports, children and law. She is also the author of On Sex and Gender: A Commonsense Approach and Fixing Columbine: The Challenge to American Liberalism.

Greg and Doriane discuss the evolving landscape of sex and gender, highlighting the shift from traditional binary definitions to more inclusive yet controversial perspectives. Doriane advocates for a balanced, evidence-based approach that recognizes both biological differences and the rights of transgender individuals. The conversation also touches on the legal implications of defining sex and gender and the socio-political dynamics that shape current debates. 

*unSILOed Podcast is produced by University FM.*

Show Links:

Recommended Resources:

• Fourteenth Amendment
• The Equality Act
• Women's rights
• Civil rights movement
• Ruth Bader Ginsburg
• Equal Protection Clause
• Brown v. Board of Education
• Pauli Murray
• Thurgood Marshall
• Amateur Sports Act of 1978
• United States v. Virginia
• Judith Butler

Guest Profile:

• DorianeColeman.com
• Faculty Profile at Duke Law School
• Wikipedia Profile

Her Work:

• Amazon Author Page
• On Sex and Gender: A Commonsense Approach
• Fixing Columbine: The Challenge to American Liberalism

Episode Quotes:

Balancing trans rights while acknowledging the reality of sex

46:59: Trans people, including trans women, of course, have every right to the same dignity and respect as anyone else, and certainly, equal protection should attach to everyone, including trans people. I don't think we can resolve the impasses without recognizing the difference between sex and gender. I think that we can have trans rights, but not by way of denying sex. In other words, the strategy that requires sex blindness in order to achieve rights for trans people is not going to work for a lot of females. And so, leaving the political right aside that doesn't want to see any gender diversity and working with people who want to be inclusive but also recognize that there are differences between females and trans women, it's going to require that trans advocates take a step back and accept that, in some places, we need to see sex, and we need to be smart about it.

What does it mean to be inclusive?

49:25: Being inclusive means taking into account relevant differences and ignoring differences that aren't relevant. That's really important to do, and we shouldn't shy away from that.

Confronting the provocative shift in our understanding of sex and gender

40:31: I think it's just a really provocative challenge to something so fundamental about ourselves and our society. Like, if you grow up understanding how fundamental sex is to you or gender is to you, and then somebody says it shouldn't be, or we're going to throw it out, or we're going to change what it means, or you can't use that word for yourself anymore, which is all the stuff that's happening, right? People are saying that you've got to start calling yourself a cis woman or, I mean, lots of vocabulary policing, all that kind of stuff about things that are so fundamental. I think it's super provocative, and I think it's super interesting. It's intellectual. It's a phenomenal intellectual challenge. It's an extraordinary political challenge.

Is sex difference an equality problem?

20:27: I think we've made a mistake to put all of sex into equality as an idea. That is the prism through which we view sex. Period, right? That anything you say about sex or do with sex that automatically belongs in the equality bucket, we've automatically got to, like, push it through this increasingly; it's technically intermediate scrutiny, but it's increasingly perceived as strict because that presumes that sex differences are bad. That presumes that any distinctions we would make on the basis of sex are bad. And I think that's wrong. I don't think sex is all bad. I don't think we should presume that most of it is bad. I think a lot of it is great. And so I think that we've made a mistake to see all of sex and sex differences as an equality problem.