By Andrew Holloway

In an everyday conversation between two people, one might say they cannot define a very common word, idea, noun, etc. because they don’t want to discuss it with the questioner and wish to change the subject. While the question and answer portion of a Senate confirmation hearing for a lifetime appointment to the Supreme Court of the United States is not an everyday conversation, it seemed that Judge Ketanji Brown Jackson had the same motivation when asked by Senator Marsha Blackburn to define the word “woman.” It certainly could not be that a woman of her education and accomplishments has no thoughts on the matter. After all, she is a daughter, wife, mother, and college and law school graduate. But at some point in her life, she must have pondered the question: What is the definition of “woman?”

Judge Jackson implied that one needs to be a “biologist” to define the word “woman.” If one doesn’t know that a woman is a human with two X chromosomes, as a biologist would define the word, they probably flunked middle school biology. But that’s not likely the case for the Honorable Judge Jackson. Could this have been because her thoughts on the matter would not please her questioner? Could it have been that she didn’t want a simple answer on the record? Could it have been that she wanted to be free later to say that she agreed with some “other” definition as she authors a SCOTUS opinion on some future case before the Court?

Let’s take this non-definition along its logical path. If one must be a biologist to define the difference between a man and a woman, then for all practical purposes, there is no difference since society does not operate on a biological level. Society tends to treat people by how they appear and by what distinguishing features they have. I think we can all agree that we go about our lives discerning who is a woman by appearance alone. In very rare cases, we might be wrong, but for the vast majority of people, we distinguish a woman from a man by appearance only, not by their biology that we cannot possibly see.

Now let’s consider a precedent for the public treatment of two “classes” of people that have no differences except in physical appearance. In 1954, SCOTUS heard the case of Brown v. the Board of Education. This was a case about how society was treating students of different appearances, white versus black. For the justices, the arguments boiled down to the doctrine of “separate but equal,” as established as constitutional by another SCOTUS opinion, Plessy v. Ferguson in 1896.

Chief Justice Warren Burger authored a unanimous opinion making the argument that there were no differences in the students despite their different appearances as established by law. He commented, “All persons, whether colored or white, shall stand equal under the law of the states.” Arguments were made that “negro students” were harmed by the doctrine in ways that were not “tangible,” such as “feelings of inferiority” and limited access to future opportunities. Burger wrote, “We conclude that in the field of public education, ‘separate but equal’ has no place.”

The rightful conclusion in Brown v. Board of Education was predicated on the idea that since there were no differences in blacks and whites, other than what was visible, the “separate but equal” doctrine was unconstitutional because it caused intangible harm to the aggrieved party who were otherwise equal under the law.

Getting back to the lack of a definition of “woman,” one can simply substitute “women and men” for “colored and white” and make the exact same argument as in Brown v. Board for the current state of public education, where facilities (lavatories and locker rooms) and programs (sports) are currently operating on a “separate but equal” doctrine. How can there be any other interpretation if there are no differences in women and men other than what is visible?

Contemplate the effects of such a ruling.