Patrick
Girard, University
of Auckland, Waipapa Taumata Rau
In
August 2006, at the general assembly of the International
Astronomical Union in Prague, astronomers voted on a new
definition of a planet, and Pluto was
demoted.
Pluto didn’t change, only its
definition.
Now New Zealand’s parliament is
preparing to vote on the legal definition of “man” and
“woman”. If scientists couldn’t end the controversy
over what counts as a planet, why should we expect
politicians to define who counts as a woman or
man?
There is something strange about deciding what
something, or who somebody, is by counting votes. The result
was awkward enough when
scientists were voting in a domain where they knew what
they were talking about.
The planet vote didn’t
settle the debate at the time, nor
nearly two decades later.
And now we want to
do the same with humans?
The Legislation
(Definitions of Woman and Man) Amendment Bill was
introduced by New Zealand First MP Jenny Marcroft and passed
its first reading on May 20. It asks parliament to
define woman in law as “an adult human biological
female” and man as “an adult human biological male”.
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The bill assumes there is a settled biological
test for whether a person is female or male – one the law
can simply borrow and apply. Marcroft thus frames the change
as restoring “biological reality” to the
law.
But there isn’t a single biological test,
and the bill does not specify one. Instead, biology is
messier, more qualified and less politically
useful.
When chromosomes don’t match what you
see
The test that determines what gets written on
a birth certificate is a visual inspection of newborn
genitals. This works for most births but not all.
It misses out on the variations where external
anatomy appears typical for one sex but internal organs
don’t match, and it breaks down when what’s visible
doesn’t clearly fit either category.
Chromosomes
can be used as a more objective test. But while having a Y
chromosome makes you male most of the time, there are too
many exceptions
and also diversity across species.
The production
of gametes (sperm and eggs) offers a more
stable definition, but it doesn’t substantiate the
definition expected in the bill, because boys and older
people don’t produce gametes. Nor do people with
conditions where they either don’t produce gametes at all
or their gametes don’t match the visual
test.
Take gametes seriously for a moment. Does
“biological female” mean producing eggs? If it does,
then women past menopause are not female under the
definition – yet they are a large part of the constituency
the bill claims to defend.
The bill either
excludes them, or it relies on a looser notion, something
like a developmental pathway toward egg production or a
phenotype historically associated with female reproductive
function. At that point the word “biological” is no
longer doing the crisp, settling work the bill needs it to
do.
Promising clarity, delivering the
opposite
The age clause produces a parallel
problem at the other end of life.
A girl, on the
bill’s definition, is not a woman. Existing legislation
that uses “women” to cover both adults and children
breaks and would have to be patched with a new vocabulary of
“female children” or something else.
Attorney-General Chris Bishop flagged
this, warning of “discrimination on the basis of
age”.
Labour opposition MP Camila Belich gave
the clearest
example. New Zealand’s abortion law refers to
“women” and where a statute does not specify an age of
maturity, the default
is 20. Under the bill as drafted, women under 20 may
lose access to abortion.
The bill promises clarity
but generates a definitional mess. So why pass it? ACT’s
Karen Chhour said the bill was not about science, but about
whether ordinary people are “allowed to trust their own
eyes, speak honestly”.
Take her at her word. The
bill isn’t resting on biology but on the social intuition
that everyone knows what a woman or a man is and on the wish
to have that intuition ratified somewhere
durable.
This is a piece of legislation that treats
a complex cluster of biological traits as if it were one
settled thing, and ties legal meaning to the
pretence.
Which brings us back to Pluto. Its
reclassification was harmless because Pluto doesn’t care.
It will continue its gravitational dance with other
celestial bodies regardless of humans calling it a planet or
not.
But women and men aren’t planets. The
bill’s reclassification tells people whose lives will be
deeply affected by the definition that the question has been
resolved.
It hasn’t. And it cannot be resolved
by a vote in parliament any more than the nature of Pluto
could be resolved by a vote at a scientific
conference.
If you have to legislate the meaning of
woman and man, you have already admitted the word was doing
more than describing biology.
Patrick
Girard, Associate Professor, Philosophy., University
of Auckland, Waipapa Taumata Rau
This article is republished from The Conversation
under a Creative Commons license. Read the original
article.
