In today’s decision to uphold Proposition 8, the California Supreme Court justices were just doing their job. I can’t fault them, as they were working within the boundaries of the legislation they have been handed over the years. Remember, the California Supreme Court started this in the first place by ruling that same sex marriage was legal over a year ago.
But even though the decision upholds legalized discrimination, it’s not quite clear if it can be enforced. Why? No single legal definition – or even medical definition – exists defining what is a “man” and what is a “woman.” And it is for good reason: no one definition can apply in all possible circumstances.
While sex and gender are the most common ways to refer to male-ness and female-ness, and there are other ways as well. But when asked to define a man and a woman, most people first respond with the obvious physical traits – the biological basis of what is man and what is woman. In the following discussion, I’ll investigate what biological traits can be used to discriminate between men and women, and how they might have difficulties being applied in a discrete fashion that can be to legally determine if an individual is a man or a woman.
What it comes down to: SEX.
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