Beth Ann Rosica: Ignoring biology won’t fix discrimination — but it will erase women

Last week, seven Commonwealth Court judges heard arguments about the definition of “sex” according to Pennsylvania law. While I have been involved in this case as a petitioner since its inception, I was nevertheless surprised at the lunacy of the discussion.

Let’s think about this — ten years ago, no one would have questioned what the definition of “sex” means. It’s a binary, biological fact. There are men with XY chromosomes and women with XX chromosomes. (This comprises the vast majority — over 99.8 percent — of humans on the planet while a minute number of people have chromosomal disorders.)

Yet despite this common sense and widely accepted definition, the Pennsylvania Human Relations Commission (PHRC) changed the definition of the sex in 2023 to include gender, sexual orientation, and gender expression, amongst other things.

The attorney for the PHRC argued that the Pennsylvania State Constitution does not define sex. Even one of the Commonwealth Court judges commented that the state does not have a definition for sex.

How did we get to a point in history where educated people do not understand this very basic fact? Attorneys are generally smart people, they must pass the bar exam, which is a rigorous test. Lawyers are taught to think critically and in a way different from most professions. And yes, part of their job is to find loopholes and ways to argue and support their case or client.

Attorneys are not taught to suspend rational thought and common sense. Yet that is exactly what is happening in Pennsylvania and other blue states across the country. Even the most recently appointed federal Supreme Court Justice was incapable of answering the question, “what is a woman?”

Progressives and liberal agencies in the state are taking advantage of the commonsense notion that all laws related to sex-based distinctions were intended to protect women. The Pennsylvania Constitution, amended in 1971 affirms equal rights for women.

“Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.”

Just because sex was not defined in the amendment does not imply that its meaning is ambiguous. It was universally understood that this amendment was enacted to give women  equal rights as men.

To argue anything to the contrary is nonsensical.

The state issue is similar to federal amendments and acts. Take, for example, the U.S. Constitution 19th Amendment which granted women the right to vote. The word “woman” does not appear in the text, but everyone recognizes this as the amendment that allowed women to vote. 

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

Interpretations of the text are unequivocal.

The Library of Congress:

“The Nineteenth Amendment prohibits the federal and state governments from denying or abridging a U.S. citizen’s right to vote on the basis of sex, thereby recognizing women’s suffrage.” [emphasis added]

The National Archives:

“The 19th amendment legally guarantees American women the right to vote.” [emphasis added]

Simply stated, the lack of a definitive definition in the amendment does not change its meaning. It is obvious that the amendment was intended to give women the right to vote.

In Pennsylvania, there are other statutes and laws that do, in fact, identify two sexes. For example, state prison regulations include language about males and females and there is no mention of gender identity or sexual orientation.

“Female inmates shall be completely separated from male inmates.” 

Additionally, the state’s Equal Pay law, enacted in 1959, was intended to ensure equal pay for women.

“No employer having employes subject to any provisions of this section shall discriminate, within any establishment in which such employes are employed, between employes on the basis of sex by paying wages to employes in such establishment at a rate less than the rate at which he pays wages to employes of the opposite sex in such establishment for equal work on jobs…” [emphasis added]

While sex is not definitively defined in the law, it was enacted to grant women equal pay. The term “opposite sex” implies a binary, not a multitude.

Finally, the 1949 Pennsylvania Public School code identifies two sexes with the word, “both.”

“The board of school directors in every district shall, with every building used for school purposes, provide and maintain in a proper manner, a suitable number of water-closets or out-houses, not less than two for each building, where both sexes are in attendance.” [emphasis added]

Similarly, Pennsylvania Private School regulations, updated in 1988, require separate bathrooms for boys and girls. 

“There shall be separate restroom facilities for boys and girls.”

It is pretty obvious that prior to the last five to ten years, the Commonwealth and the federal government enacted laws under the widely accepted assumption that there are only two sexes. The notion that we cannot define sex as binary is ridiculous.

The definition of sex and its connotation has not changed since the beginning of time — until recently. Anyone who is honest knows that sex is binary and based on biology — to pretend otherwise is not only disingenuous, it’s a downright lie. 

And this lie erases the women’s movement, because ultimately, civil rights don’t work if we don’t know what sex means or how to define it.

What’s next? Perhaps we start redefining the words “air” and “water” or “sky”? Despite thousands of years of agreement on these words, there’s nothing stopping a bunch of progressives from changing their meaning and forcing the rest of society to deal with it.

Without a clear, honest definition of sex, our legal system unravels — and so do the hard-won rights of women across Pennsylvania.

Beth Ann Rosica resides in West Chester, has a Ph.D. in Education, and has dedicated her career to advocating on behalf of at-risk children and families. She covers education issues for Broad + Liberty. Contact her at barosica@broadandliberty.com.