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FOREWORD
DORIANE LAMBELET COLEMAN* & KIMBERLY D. KRAWIEC**
This symposium continues the discussion we began in Volume 80 (2017), on
sex in different institutional settings.' Like sport, which was the first in the
series, law is particularly concerned with sex in this period. Both its definition
and proper uses are the subject of a global, high-stakes, highly polarized
debate.2 In the American context, this debate is being had in all three branches
of the federal government and in state legislatures and executive offices across
the country.
Since 2016, the legislative, judicial, and executive branches of the federal
government have been actively engaged with the questions whether sex
continues to mean biological or reproductive sex, or whether it should instead
mean gender, gender identity, sex stereotype, or the set of sex-linked physical
traits we know as primary and secondary sex characteristics; and, whether and
on what terms society's remaining sex classifications-however sex is defined-
are viable. Lawmaking activity has accelerated since 2019 when the House of
Representatives first passed the Equality Act,3 the Supreme Court decided
Bostock v. Clayton County,4 and the Biden Administration replaced the Trump
Administration's administrative guidance on these questions with his own.5 For
the President in particular, doing so was a Day One commitment: he signed
his related executive order following the inaugural on January 20, 2021.6
Copyright © 2022 by Doriane Lambelet Coleman & Kimberly D. Krawiec.
* Professor of Duke University School of Law.
** Sullivan and Cromwell Professor of Law, University of Virginia School of Law.
1. See Doriane Lambelet Coleman & Kimberly D. Krawiec, 80 LAW & CONTEMP. PROBS., no. 4,
2017 (discussing the topic of sex in sport).
2. For an excellent description of the place of the topic in the national discourse, see generally
Edward Schiappa, THE TRANSGENDER EXIGENCY: DEFINING SEX AND GENDER IN THE 21ST
CENTURY (2021) (explaining that [a]t no other point in human history have the definitions of 'woman'
and 'man,' 'male' and 'female,' 'masculine' and feminine,' been more contentious than now.).
3. Equality Act, H.R. Res. 5, 116th Cong. (2019); see also Equality Act, H.R. Res. 5, 117th Cong.
(2021) (omitting the traditional definition of sex as biological sex from its definition, prohibiting
without exception all distinctions on the basis of sex in all federal programs and public
accommodations, and rejecting the law's traditional brick-and-mortar definition of the latter). The
2019 legislation was not taken up by the Senate. It was refiled and re-passed by the House in 2021, and
as of this writing it is pending in the Senate.
4. 140 S.Ct. 1731 (2020) (case brought under Title VII in which the Court retained the traditional
definition of sex as biological sex and held that firing a transgender woman because she is
transgender is unlawful discrimination on the basis of [biological] sex since her employer took it into
account in its decision.).
5. Exec. Order No. 13988, 86 Fed. Reg. 7023 (Jan. 20, 2021) (announcing that because of sex in
federal law prohibit[s] discrimination on the basis of gender identity or sexual orientation, so long as
the laws do not contain sufficient indications to the contrary.).
6. Id.](ViewImageLocal?handle=hein.journals/lcp85&div=1&collection=&method=preview&ext=.png&size=3)
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