Women’s Bill of Transphobia

Today, Nebraska’s governor signed a “Women’s Bill of Rights” executive order, making it the second state to do so (Oklahoma beat them to it). What do you think belongs in a Women’s Bill of Rights? If you guessed transphobia, and nothing else, you would get along with the governor. Let’s look at this order and imagine what an real Women’s Bill of Rights might look like.

So, what is in it? First, lets start by saying this law grants no new rights to women. It simply aims to harm trans men, trans women, and non-binary folk. This is a common tactic I’ve talked about in another post: doing something that has no actual impact on the majority of women, while claiming it helps women. He expects women to be fooled by this (sadly, some will be, but generally most women support trans people). It’s hard to get political support from women, after all, without doing something for them. But how does an anti-abortion governor who built a cabinet consisting of 24 men and only 6 women do that? By hating trans people, of course!

That’s enough introduction, let’s look at the actual text of the order, entitled “Establishing a Women’s Bill of Rights:”

WHEREAS, males and females posses unique and immutable differences that manifest prior to birth and increase as they age and experience puberty;

WHEREAS, biological differences between the sexes mean that males are, on average, bigger, stronger, and faster than females;

WHEREAS, women have achieved inspirational and significant accomplishment in education, athletics, and employment;

WHEREAS, biological differences between the sexes are enduring and may, in some circumstances, warrant the creation of separate social, educational, athletic, or other spaces in order to ensure safety and/or to allow members of each sex to succeed and thrive; and

WHEREAS, inconsistencies in court rulings and policy initiatives with respect to the definitions of “sex,” “male,” “female,” “man,” and “woman” have led to the endangerment of single-sex spaces and resources, thereby necessitating clarification of certain terms.

NOW THEREFORE, I, Jim Pillen, Governor of the State of Nebraska, under and pursuant to the authority vested in the Governor by the Constitution and the laws of the State of Nebraska, do hereby order and direct the following:

1. In the promulgation of administrative rules, enforcement of administrative decisions, and the adjudication of disputes by administrative agencies, boards, and commissions when using the following terms shall, to the fullest extent permitted by law, define them as follows:
   • a) a person’s “sex” is defined as his or her biological sex (either male or female) at birth;
   • b) “female” is an individual whose biological reproductive system is developed to produce ova; a “male” is an individual whose biological reproductive system is developed to fertilize the ova of a female;
   • a) “woman” and “girl” refer to human females, and the terms “man” and “boy” refer to human males;
   • b) the word “mother” is defined as a parent of the female sex and “father” is defined as a parent of the male sex;
2. There are legitimate reasons to distinguish between the sexes with respect to athletics, prisons or other detention facilities, domestic violence shelters, rape crisis centers, locker rooms, restrooms, and other areas where biology, safety, and/or privacy are implicated;
3. Any public school or school district and any state agency, department, or office that collects vital statistics for the purpose of complying with antidiscrimination laws or for the purpose of gathering accurate public health crime, economic, or other data shall identify each individual who is part of the collected data set as either male or female at birth.

This Executive Order shall become effective immediately and shall expire upon the effective date of state law governing participation of biological males in female athletics and prescribing environments where single-sex dedicated services and/or facilities should be provided.

IN WITNESS THEREOF, I hereunto set my hand and cuase the Seal of the State of Nebraska to be affixed this 30th day of August, 2023.

Nebraska Executive Order 23-16

It’s just sloppy.

First, let get to some of the sloppiness here before talking about what it is intended to do and where it came from.

Yes, there are two section 1a’s and two sections 1b’s – someone didn’t know how to use Word when they copied and pasted (more on that later). Most people would use a, b, c, d as letters for these four sections, rather than a, b, a, b, but Jim Pullen isn’t a conventional governor: rather than focusing on the needs of his state, he is addressing this non-issue. Also, he forgot to define “men” and “women” (he just defined the singular version of those words) but let’s just assume they’ll get defined by courts they way he wants.

Erasing Mankind

Snark aside, there are four sloppy things that immediately stand out to me. First, by saying that these definitions apply to administrative rules, many of which in most states are often written using the words like “man” to mean every adult (including women). For instance, Nebraska rules and regulations, Title 126 (Department of Environmental Quality), Chapter 1 (Definitions), Section 015 defines “Discharge of a pollutant” as including “discharge of waters of the state from the surface runoff which is collected or channeled by man.” Apparently it’s okay if it’s discharged into water collected or channeled by women now.

Or what about Title 23, Chapter 11, Section 002.03, “ANIMAL shall mean any animal, including poultry, other than man but shall exclude fish and reptiles.” I’m sure PETA would approve of a more expansive definition of animal, but I’m not sure that’s what Nebraska actually intended (then again, it is run by the GOP). After all, according to the executive order, “‘man’ … refers to human males,” as 1a (the second 1a, not the first one, of course).

Words like “man” and “men” are used throughout most legal rules in most places, and, today, unless the context clearly indicates they should be interpreted based on sex or gender, generally mean “any adult” and “any adults.” Men could argue (see what I did here?) whether more inclusive language should be used here (and men, at least some men, would certainly argue about it), but courts interpret it as basically meaning “adult” or “adults.” But, no, let’s redefine it!

So, that’s one sloppy part.

Ova and Fertilization

Another sloppy part is the definition of biological sex, defining it based on how a person’s reproductive system works. For instance, a male is “an individual whose biological reproductive system is developed to fertilize the ova of a female,” (from the order part 1b, but not 1b, and by this I mean I’m taking this from the first 1b in the Executive Order) for instance. I could snark about “you already defined female as producing ova, so what other kinds of ova do you think there are? Is there an opening for trans men here?” But I won’t. It’s about producing or fertilizing, which spurs all sorts of women’s studies thoughts in my head (shades of Emily Martin’s excellent 1991 article, “The Egg and the Sperm: How Science has Constructed a Romance Based on Stereotypical Male-Female Roles“), but I’ll push those aside right now too. I’ll just ask a couple questions: What about a person who doesn’t have a reproductive system? Or is too young to have a developed one? While a trans woman with a vagina doesn’t have ovaries (thus no ova), her reproductive system is not able to “fertilize the ova”. So, what are they? I’m sure courts will figure this out, but it’s…sloppy.

Data Collection

This order seems to require agencies, schools, and others to always gather sex, as defined by Nebraska, when they gather other information. While I definitely support gathering data broken down by gender when relevant (and it is relevant often), this could pose a challenge for agencies. Let’s say you want to determine how many tickets you sell to a state-managed event (perhaps a university football match-I hear Nebraska has some sort of junior league college team). This isn’t necessarily used for antidiscrimination, but it is used as part of “other data” when the college announces that there were 2,500 people in the stands at their football game. Do they really want to break that down by gender? Are they going to sell male and female tickets?

That said, this is one aspect I almost agree with. When women are included in data along with men, it tends to erase women. For instance, if we’re looking at a program to encourage small business development, you might hear, “15,000 people are using this service!” But if it’s 14,000 men and 1,000 women, that’s important data to know. But somehow I don’t think this is what Nebraska was after. I suspect they just forgot to add “when collecting data that includes sex, make sure to count those tr$$$ as their sex assigned at birth” (I’ll note that “sex assigned at birth” is also not a term used in this order, and, again, that’s intentional; I’ll mention why later).

Gender

But most interesting of all, the law focuses on sex but ignores gender. There’s a reason for this, and I’ll get into it later, as this was not accidental, but in practice it’s sloppy. At least the Tax and Equalization and Review Commission recognized this in their rules, when they talk about how they should be constructed, as they note, in Title 442, Chapter 1, Section 004.02 that “gender when referring to either masculine or feminine includes the other and neuter.” While neuter is not particularly progressive terminology, it’s at least slightly more accurate than the governor’s definition, recognizing that there is at least one kind of exception to the binary. They’re going to get their taxes from the “neuters.”

Where did this come from?

It came from the Women’s Bill of Rights, as developed by the Independent Women’s Forum. Lest you believe the Independent Women’s Forum (I’ll refer to them as IWF, as they do themselves) is either some kind of liberal feminist group or a non-partisan group dedicated to helping women, you’re not quite right. The group was created to defend Clarence Thomas, during his Supreme Court confirmation hearings, against a credible accusation of sexual harassment and opposed the Violence Against Women Act. This is hardly a group dedicated to protecting women, even if women are leaders of the group. In 2020, they raised $5,281,177 from donors, which pays nice salaries for part time work. Carrie Lukas, the President, makes $175,818 for 33 hours a week of work, while Amber Schwartz makes $151,604 for 36 hours a week of work. They had one consultant in 2020: they paid $185,000 the Hawley Law Firm, a law “firm” run out of a single family house (yes, that Josh Hawley, now Senator from Missouri, and, no, not a woman lawyer). He was their legal fellow. I guess they couldn’t find whatever the female version of a fellow is–I’m looking for the word, maybe it’s wumben? Wimpund? Woomud? Well, they couldn’t find a woomud lawyer, I guess. They couldn’t find a woman that could do math either, so the president’s dad, Peter Lips, was paid $58,256 for his 28 hours a week of work as treasurer.

But, ya, a non-profit women’s group, which just so happens to never have found an issue that doesn’t align with GOP interests.

For instance, on their home page on August 30, 2023, they highlight anti-trans stories (of course), criticize Nikki Haley for “using her identity,” criticize Biden environmental policy, discuss how teachers really are well paid, and advocate (support) to ensure that organizations don’t have to disclose their donors. You know, typical women’s concerns. But of course the supposed problem with trans people is the issue that gets the most screen real-estate.

IWF’s “Women’s Bill of Rights” and Nebraska’s

The Nebraska Women’s Bill of Rights executive order draws sections verbatum from IWF’s “Women’s Bill of Rights.” Let’s go through it section by section.

Whereas, males and females posses unique and immutable differences that manifest prior to birth and increase as they age and experience puberty;

Both IWF’s and Nebraska’s versions

That is identical in both versions. Transphobes like the word immutable, even as they talk about changes. But I’m not going to even spend time on this.

Whereas, biological differences between the sexes mean that only females are able to get pregnant, give birth, and breastfeed children;

IWF’s version

Oh, that’s not in Nebraska’s order! Why not? I suspect Nebraska is trying to make a gender-blind order, as that’s a foundational principle of conservative thought, and one where the IWF’s politics maybe a bit different than Nebraska’s governor’s. Likely, the governor is trying to convey the idea of meritocracy. That’s a theme here, and something IWF also believes exists already, but IWF is focused more on the misogynistic view some Christians hold of “complementarianism.” That is, men and women are equal but have distinct roles, neither is better than the other. Men are leaders, women raise kids. IWF is calling back to that in their Women’s Bill of Rights, by saying “see these wonderful things women do, that are different than what men do?” Trust me, people that believe in complimentarianism will see the link. I’m guessing Governor Pillen missed that day at his evangelical church, so doesn’t realize it’s something his voters tend to believe.

Whereas, biological differences between the sexes mean that males are, on average, bigger, stronger, and faster than females;

Both IWF’s and Nebraska’s versions

This did make it into Nebraska’s executive order. Why? Because it’s misogynistic, scientifically untrue (yes, I recognize there are sex differences, but it is a bit more nuanced than this), and reinforces the idea that women need protection by men like Governor Pillen. They are delicate flowers, an argument that have kept women from the workplace and other spheres of public life. It also supports the Governor’s attempt to force the hand of a legislature that didn’t pass the anti-trans sports and bathroom laws he would like. So proving women’s vulnerability is important.

Whereas, biological differences between the sexes leave females more physically vulnerable than males to specific forms of violence, including sexual violence;

Whereas, females have historically suffered from discrimination in education, athletics, and employment;

IWF’s version

This did not make it to Nebraska’s order. Why not? Probably because it is pretty clear that defining male and female doesn’t keep anyone from being raped by their partner. Nor does redefining words address discrimination. Instead, I’m guessing that the Governor didn’t have any women ask about this, plus GOP voters aren’t exactly supportive of fixing discrimination and oppression. Maybe IWF is too “woke” (uh, ya) for modern GOP politicians.

Whereas, women have achieved inspirational and significant accomplishment in education, athletics, and employment;

Nebraska’s version

This was not in IWF’s statement, for good reason. They aren’t trying to show men and women are in a meritocracy so much as to show they have different roles and that is what makes sex distinctions important. The Governor wants to focus on vulnerability as the difference. But even while focusing on vulnerability, it’s important to him that he says women don’t face discrimination, that’s in the past. Some women are successful after all, so this, in his eyes, proves women can do anything (well, except compete against men!).

Whereas, biological differences between the sexes are enduring and may, in some circumstances, warrant the creation of separate social, educational, athletic, or other spaces in order to ensure safety and/or to allow members of each sex to succeed and thrive;

Both IWF’s and Nebraska’s versions

This is in both the order and IWF’s text. Again, the Governor seems to be approaching this from a meritocracy standpoint (life is what you make it, privilege and oppression are liberal fables), while IWF is approaching it from complementarianism.

Whereas, inconsistencies in court rulings and policy initiatives with respect to the definitions of ‘sex,’ ‘male,’ ‘female,’ ‘man,’ and ‘woman’ have led to endangerment of single-sex spaces and resources, thereby necessitating clarification of certain terms,

Both IWF’s and Nebraska’s versions

This is also in both. But note it doesn’t define gender. It doesn’t define gender because they don’t want to even engage with the idea that sex and gender aren’t the same thing. It doesn’t exist to them–that’s the whole gender critical thing. It’s all about sex, never gender. So they didn’t bother to define it here, likely because of some input from people who see themselves as “gender-critical.”

Now therefore, I, Jim Pillen, Governor of the State of Nebraska, under and pursuant to the authority vested in the Governor by the Constitution and the laws of the State of Nebraska, do hereby order and direct the following:

Nebraska’s version

This is essentially just boilerplate that doesn’t fit in IWF’s version. IWF instead states that “we affirm that…”

In the promulgation of administrative rules, enforcement of administrative decisions, and the adjudication of disputes by administrative agencies, boards, and commissions when using the following terms shall, to the fullest extent permitted by law, define them as follows:

Nebraska’s version

More boilerplate specific to Nebraska, but dangerous boilerplate. The governor is basically saying that the majority of Nebraska’s government needs to act on this order.

I’m not going to worry about lining up the numbers in the next section, particularly because Nebraska screwed that up when using Word. But I’ll focus on the text.

• For purposes of state/federal law, a person’s ‘sex’ is defined as his or her biological sex (either male or female) at birth;
• For purposes of state/federal law, a ‘female’ is an individual whose biological reproductive system is developed to produce ova; a ‘male’ is an individual whose biological reproductive system is developed to fertilize the ova of a female;
• For purposes of state/federal law, ‘woman’ and ‘girl’ refer to human females, and the terms ‘man’ and ‘boy’ refer to human males;
• For purposes of state/federal law, the word ‘mother’ is defined as a parent of the female sex and ‘father’ is defined as a parent of the male sex;

IWF’s version, but Nebraska’s is essentially the same (without the “For purposes of state/federal law”)

Here, both focus on the definitions, again side-stepping around defining “gender.”

But also note the weird focus on ova (plural of ovum) and fertilization. They can’t say “sex assigned at birth,” even though that would express their desire, and have to come up with these weird definitions (other transphobic laws are being passed with terms such as “large gamete”). Women are their biology, in the eyes of both IWF and Nebraska. And this biology never has any gray areas, in their eyes.

• When it comes to sex, ‘equal’ does not mean ‘same’ or ‘identical’;
• When it comes to sex, separate is not inherently unequal;

IWF’s version

This didn’t make it into Nebraska’s order, likely because of the whole meritocracy versus complementarianism thing. IWF’s is more evangelical, so making a note of the fundamental differences between men and women is important. In Nebraska, everyone is the same (well, except for trans people) in the Governor’s eyes.

There are legitimate reasons to distinguish between the sexes with respect to athletics, prisons or other detention facilities, domestic violence shelters, rape crisis centers, locker rooms, restrooms, and other areas where biology, safety, and/or privacy are implicated;

Both IWF’s and Nebraska’s version

Here, they are setting up discriminatory laws or rules for these spheres of life. The reasons differ slightly in ideological basis, but this is about setting up discrimination. Nebraska’s order specifically notes that the full power of the executive branch should be used to enact this discrimination, and to ensure that trans people are identifiable by everyone. I’ll leave it to the reader to imagine what the outcome of that is for the trans person.

Policies and laws that distinguish between the sexes are subject to intermediate constitutional scrutiny, which forbids unfair discrimination against similarly-situated males and females but allows the law to distinguish between the sexes where such distinctions are substantially related to important governmental objectives;

IWF’s version

This is a conservative legal argument, which seeks to rollback gains of LGBT people over the last three decades. However, Nebraska’s governor left it out, probably saving this argument for the inevitable court case.

Any public school or school district and any federal/state/local agency, department, or office that collects vital statistics for the purpose of complying with anti-discrimination laws or for the purpose of gathering accurate public health, crime, economic or other data shall identify each individual who is part of the collected data set as either male or female at birth.

IWF’s version, but extremely similar to Nebraska’s version

I discussed this in the beginning, when I talked about potential impacts of this, but essentially the goal is that trans people be written out of official statistics, and is yet another way to deny trans existence. It also ensures that all government forms that gather sex or gender require trans people to indicate their sex assigned at birth, regardless of how they live and are identifiable.

Setting up a transphobic “comromise”

And here we see the governor’s goal, beyond just transphobia (which is of course also his goal):

This Executive Order shall become effective immediately and shall expire upon the effective date of state law governing participation of biological males in female athletics and prescribing environments where single-sex dedicated services and/or facilities should be provided.

Nebraska’s version

In Nebraska, transphobic bathroom and athletic laws failed in the legislature in 2023. I imagine the governor thinks people will want to get rid of this executive order bad enough, they’ll pass the “less” offensive laws. Of course transphobic laws or transphobic executive orders both bring suffering to trans people. This is the most cynical kind of politics, using government as a tool to oppress, and increasing that oppression when you don’t get your way.

What is missing?

This is easy. It’s missing anything that can actually help women. That’s no surprise when the text came from a group that believes feminism harms women. No wonder the Nebraska GOP used their text.

A Real Women’s Bill of Rights

Clearly the governor and other GOP politicians need help understanding what women’s rights look like. I’ll give some suggestions:

• Reproductive justice (not just reproductive rights)
• Improving ventilation in schools (since women often have the majority of child rearing responsibilities, and thus care for sick children)
• Expand social safety net programs (poverty is more likely to impact women)
• Enact strategies that actually reduce rape

I’ll stop here, but I’m sure my readers can think of dozens more.

What should trans people do now?

If you travel to Nebraska, I’d advise you to check out my trans travel guide, which has not only information about Nebraska, but also many other places. I know I won’t be going to the state. But not everyone can or should avoid Nebraska. Trans people have families, jobs, and roots in Nebraska, just like everywhere else. This executive order just made life way more difficult for them.

Also note that Nebraska did defeat anti-trans bills in the legislature. Don’t give up hope. It’s not a given that transphobes will rule the state. If you’re looking for a place to contribute money, I’d also suggest LGBT advocacy and/or support groups in Nebraska, such as Out Nebraska. While these groups are not perfect, this is a fight for trans lives. And if you are in Nebraska, know you are not forgotten.