Dear Everyone Discussing Marriage Equality: ‘Gender’ and ‘Sexuality’ Are Not the Same Thing

As I was listening to a National Public Radio report on this week’s U.S. Supreme Court hearing on California’s Proposition 8, I heard the word “gender” a number of times—but far fewer times than I heard the word “sexuality.” This seemed odd to me when discussing a case about non-heterosexual marriage.

At one point, the lawyer arguing against Prop 8 (which is to say he was arguing for same-sex marriage) addressed the opposition’s concerns that children of same-sex couples will somehow be damaged by their parents’ sexual identities; he said that children’s health and happiness is not about the “gender” of their parents. I expected him to use the word “sexuality” here, but instead it was “gender.”

In another instance, a lawyer defending Prop 8 expressed dismay that, if the court strikes down Prop 8, marriage will be “re-defined as a genderless institution.”

Is this case really about gender? It seems to me that no one really cares if two women are raising a child together, unless those two women are lesbians.

I find these discussions of gender unsettling for two reasons. For one thing, they conflate “gender” with “sex.” Secondly, they mask a larger discussion of sexuality, and an anxiety around the relationship between sexuality and gender.

When I teach about gender in my undergraduate anthropology classes, I start with a discussion of gender, sex, and sexuality. I do this because I think these concepts are foundational to the course, but also because these words are used so often in everyday parlance, and yet they are often used incorrectly.

In the social sciences and beyond, we have long recognized that “sex” is biological, “gender” is a social identity, and “sexuality” relates to erotic desires. As many scholars (looking at you, Judith Butler) have established, there is a prevailing social expectation that a certain kind of genitalia must always correspond with a certain gender identity. However, this is by no means always true. There are many people in the world who identify as transgender or intersex, providing us with ample evidence that the relationship between biological sex and social gender is not so straightforward as we are often led to believe. In light of that, the conservative concern about children being raised by two parents of the same gender, and therefore supposedly without a mother or a father, is particularly nonsensical. We have long established that all women don’t have to be mothers, so do all mothers have to be women? Add sexuality into this mix and things really get complicated, because there is also an assumed link between gender and sexual identity; biological women act “feminine” and sexually desire men, and vice versa. Switch out any piece of this equation and you are likely to upset someone (for example, biological men who act feminine and desire men and biological women who act masculine and desire men).

So, gender, sex, and sexuality are all bound up with each other and partially depend on each other for their very definitions. This is why, at least to me, it is so wrong that official discourse around “same-sex” (I won’t even get started on that label) marriage often substitutes the word “gender” for “sexuality.” I think that this is happening, though, not just because in the United States we tend to be uncomfortable discussing sexuality in general, but because there is a profound anxiety circulating around the relationship between sexuality and gender hidden under the gender discourse. The institution of marriage is only one way (but a big one) in which society has been ordered based on presumed relationships between gender, sex, and sexuality. So, legally recognizing that there is no direct causal arrow from biological sex to social gender to sexual identity opens up the possibilities for other, larger social changes. This makes people nervous, especially people who enjoy a lot of power under the current system—non-poor, heterosexual, white men.

But more to the point, I wonder if using a language predominantly of gender is a way to smooth over this potentially groundbreaking moment. By making this case more about gender than about sexuality, or about the precarious relationship between the two, anxiety around non-heterosexual identities gets downplayed in favor of a safer discourse around gender roles detached from sexual identity. However, as mentioned above, I suspect gender wouldn’t be an issue at all here if it wasn’t attached to non-heterosexual identities. So, as the Prop 8 case and the hearing on the Defense of Marriage Act move forward, I hope to hear the word “gender” used in conjunction with “sexuality,” because isn’t that really what we’re talking about?

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  • KP

    Lauren, I wish you had consulted a lawyer before writing this.

    In law, lawyers and judges refer to previous cases to support their arguments. As a shorthand, lawyers quote phrases directly from the cases–kind of a professional lingo in the same way a Christian might say “For God so Loved the World…” to refer to John 3:16. Because case law is quoted word-for-word, words that were initially used incorrectly or that were defined differently in the past are still quoted in current case law and in oral arguments. So, going back to the John 3:16 example, the actual translation is “For in this way God loved the world” but because we are familiar with the phrasing “for God so Loved the World”, we still use the incorrect “old” phrasing as a shorthand with the understanding that the actual meaning is different. And, like religion, law is slow to change.

    I’m not convinced that the difference between gender and sex is relevant from a legal perspective. The DOMA and Prop 8 cases are based on a statute and an initiative, respectively, that recite “man” and “woman” without specifying whether they are referring to gender or sex–partly because these cases were brought by cis-people for whom gender and sex are the same. The English language is imprecise here. Because the terms can be conflated and because the case law doesn’t use these terms consistently, the lawyers and Justices are conflating them. That’s really all this is.

  • Dr. G

    But it is about gender, not sexuality. There is no debate about whether a guy who is gay can marry a woman, or a lesbian woman can marry a guy. The issue is about people from the same gender, regardless of their sexuality, can marry each other…obviously sexuality is a part of it, but the issue being discussed is about two people of the same gender marrying each other. Also, sex is not the same thing as sexuality. Sexuality, as you said, refers to the sexual orientation of the person, but sex (not sexuality) is used as gender, meaning the physiological make up of the person.

    • Chelsea Frost

      My thoughts exactly. If my husband were to identify as a woman, our marriage would still be legal, because in the eyes of the law, we are a man and a woman.

  • Guest

    I am not sure that your observation is a fair one. Confused meanings of words is a source of mischief in the law. Judges and lawyers aim to resolve that mischief, rather than dismiss it as a necessary evil of our legal tradition. In the coming decades, courts will see a rise in cases involving issues of discrimination based on sex, gender, and sexuality. Without understanding the signification of those words, it will be impossible to have a meaningful discussion – whether that discussion is happening online, in the classroom, or in the court room. Rather than attempt to dismiss her post as misguided, we should thank Lauren Suchman for her clear, thoughtful, and much-needed contribution.

  • BigSofty

    I think there are just too many irrelevant labels confusing the issues here.
    People define themselves. Not society, not a dictionary, and certainly not the Court.
    The only label that counts here is “Human Being”.

  • Lauren S


    Thank you for your thoughtful comment. I ended up receiving a number of similar comments from professionals in the legal community on Facebook as well, and I am glad to see that this conversation is circulating so broadly. However, I think I need to clarify the kind of argument I am making here, and I hope this is useful food for thought for you and other legal professionals moving forward. First of all, it is my understanding that as a lawyer it is your job to take the information in front of you and use pre-existing case law, etc. to stake a claim. That is, you work within a certain kind of institutional setting, and you must use the language and strictures of this setting in your daily work. Part of my job as an academic, and particularly as an anthropologist, is to think about how institutions (e.g. the legal system) work to create and/or perpetuate detrimental social patterns, and to identify areas where there is a possibility for social change. So, I think what you are saying is that in your day-to-day work as a lawyer you are required to use certain kinds of language, because that is the how the system works and you need to work within the system to do your job effectively. I am not questioning this day-to-day aspect of the legal profession, and I am certainly glad there are people like you out there who can make change happen through arguing cases like those at SCOTUS this week. Rather, I am questioning the use of language in this institutional setting more broadly, which I think perpetuates biases around gender, sex, and sexuality circulating throughout U.S. society at large.

    A number of social theorists (e.g. Judith Butler, who I mention in my original post) have argued that language (they often use the word “discourse”) has incredible social power. For scholars such as Butler, discourse actually performs social actions and determines or transforms identities. Her classic example is the phrase “I now pronounce you husband and
    wife/wife and wife/husband and husband,” which transforms the social identity and relationship of two people once it is uttered. So, the first point I want to make here is that language, particularly when used in any kind of official capacity, is a very powerful thing, and we should think carefully about how we use it.

    Further, anthropologists such as Emily Martin have made the argument that language we take for granted as being “objective” and “scientific” is actually informed by gendered social
    biases (here is a link to her classic article “The Egg and the Sperm,” which makes this
    argument and is a fantastic read). So, my second point, and the point I am making in my original post, is that the way the word “gender” is used in this case (and apparently in the pre-existing case law) is informed by prevailing social biases around what “gender” is (or should be), which mistakenly excludes a relationship between gender identity and sexuality. I chose to discuss this issue in the context of the Prop 8 hearing because it seems to me that the bias against connecting gender with sexuality, or toward somehow conflating the two
    terms, is particularly obvious and noteworthy in the context of a case that is ultimately about both gender and sexuality. So, while I understand that the use of the word “gender” by both
    lawyers on the case has to do with their professional obligations to the case at hand, I am suggesting that legal professionals and others should question the way this language is used and institutionalized, rather than taking for granted that the language “must” be used in a certain way. I think the debate we are having here is a great place to start, and I hope that it fosters more conversation in legal circles around how to change the official language where
    we know it is falling short.

    • KP

      Thanks Lauren!

      Language is incredibly powerful. The law recognizes that power by relying so heavily on language. So the law uses “old” language–to lend authority to decisions and ceremonies. The “old” language is what it is–we can’t change what was said even yesterday. But it does change–however slowly (and slower than even lawyers and jurists would like). One area where it is acutely distressing is the legal standard for “retardation”. It’s an old standard and it’s still in use (because it’s actually a decent working rule) even though the terminology is viewed by everyone in the legal profession as inaccurate and obsolete.

      It is valuable for the legal profession to learn new terms–we are aren’t formally educated in anthropology but we don’t live under a rock either. As people who are trans become more visible and more involved in court cases, that distinction will be made simply because it will have to be made. It’ll cause some confusion and mess up the precedent but that’s a typical occurrence in the development of law.

      We’ll get there, eventually, and probably faster than most people expect. In the meantime, please don’t put legal professionals on the defensive for doing their jobs using the tools at hand. As licensed legal professionals with a fiduciary duty, we have to put our clients first, the courts second, and anthropology PhDs somewhere far behind that.