A Monthly Column for Word Lovers
And Forget the He and She
The title of this month's column is from the poem The Undertaking, by John Donne. It was on my mind recently when I listened to the oral arguments in the case R.G. & G.R. Harris Funeral Homes Inc.v Equal Employment Opportunity Commission, et al. before the US Supreme Court. The case is on this year's docket and so has not been decided yet, having just been argued in October.
The poem came to my mind because Donne suggests (among related things) that forgetting the he and she would be "a braver thing than all the Worthies did." We contemporary mortals are perhaps not so brave in Donne's view, for we almost never lose sight of the he and she, and that, in a way, is the problem addressed in the case noted above. It will decide, probably in a limited way, whether an employer may discriminate against a transsexual simply for their being a transsexual. The language of the oral argument presents fascinating material for analysis, as the ultimate decision will certainly do as well.
I used the Visual Thesaurus's Vocab Grabber to generate a list of the words used in oral argument, with a view towards examining those that appear with greater than expected frequency, measured against a model of their ordinary frequency in language. This gave me a place to start looking at what we talk about when the set boundaries between "he" and "she" are subject to question or attack.
The case is about whether an employer — a funeral home in this case — can fire an employee because they acknowledge publicly their wish to present themselves as a member of the sex opposite the one that appears on their birth certificate. The case had opinions on both sides in lower courts. Before the Supreme Court, the government (represented by the EEOC) argues that such a firing does indeed constitute illegal discrimination with reference to Title VII of the 1964 Civil Rights act, which deals with sex-based discrimination.
The language that the petitioners, respondents, and justices used in argument contained a number of things you would expect to appear with high frequency: discrimination, gender, transgender, woman, man, for example. But there were surprises, too, and looking at these gives a flavor of the way that the justices respond to the arguments, and the way that other parties frame them.
A phrase that appears very frequently throughout the arguments is "assigned at birth". In the oral argument, the verb assign is used 24 times, always in the passive voice which, as we know, artfully avoids mention of the agent. Since the phrase "sex assigned at birth" is now common, perhaps it's just become the formulaic shorthand for "sex that doctors write on the birth certificate." But this is a very odd kind of assignment, surely; who is the assigner — the doctor? The Creator? Why do we not say use the verb "recorded" or "observed" or "noted" for this event?
Another word that appears in greater frequency than I would have expected in the arguments is stereotype. It gets 28 mentions. Most of the time we hold stereotypes to be a bad thing, especially when they are applied to minorities. But what about more general stereotypes, such as those that apply to men and women? Most of us are comfortable conforming outwardly in dress, conduct, and speech to the stereotype associated with our birth gender, and many of us are uncomfortable in the presence of violations of these stereotypes. It turns out that this is actually a central question before the justices.
Should these biologically based and culturally strengthened stereotypes prevail? Is it right or just for a society to condemn and punish transgressions of these binary stereotypes? Should we ostracize individuals who fail to conform to social norms in this regard? John Bursch, who argues for the funeral home in the case, expresses the idea succintly: "Sex itself is a stereotype." I don't think that's quite accurate, but it's hard to argue against the fact that every human culture from the beginning of time has been in the business of creating, maintaining, and enforcing sex stereotypes. So it seems unlikely that people will be persuaded that they need to stop doing this with such zeal and rigor.
A facet of the discussion around stereotypes is the term dress code. It gets no fewer than 30 mentions in the arguments. The centrality of this concept goes to the core notion of stereotype and to the core of the case. Dress codes in most organizations are binary. There's a dress code for men, and one for women, and other things being equal, an employee's failure to abide by the dress code designated for their birth gender may be grounds for dismissal. So the thorny question is about whether a transgender person is unfairly discriminated against for failing to dress according to the stereotype of their sex assigned at birth.
A related, and perhaps thornier problem that the justices anticipate is revealed by the fact that bathroom and restroom combined are mentioned 32 times in the oral arguments. So-called bathroom bills have already been in the news, as some sub-federal jurisdictions have tried to insist that everyone use the bathroom that corresponds to their birth sex. This has resulted in a proliferation of unisex bathrooms in cities and on college campuses, as well as several lawsuits aimed at clarifying (so far without definitive success) what options are available for people, both children and adults, who identify as transgender and who need to answer the call of nature.
This short summary doesn't do any sort of justice to the oral arguments presented in the case, and I urge readers to listen to it or to read the transcript; you can find both on the link to the case at the top of the article. In many respects we are in a brave new world with regard to the way that people identify and present themselves, and this is reflected in the language that surrounds this phenomenon: terms like transgender, cisgender, nonbinary, and gender identity all show sharp increases in usage during this century and will probably continue to do so. We are still a very long way from forgetting the he and she, and there's no consensus yet that we ever will, or should; but we are at a point now where the lines between the he and she have become fuzzier, and that has got a lot of people feeling very uncomfortable.