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Why Ginsburg prefers ‘gender’ to ‘sex’

Ruth Bader Ginsburg

Supreme Court Justice Ruth Bader Ginsburg in her Supreme Court chambers in Washington, July 31, 2014. (AP Photo/Cliff Owen, File)

Some eagle-eyed attorneys might have noticed that Supreme Court Justice Ruth Bader Ginsburg referred to “gender” and not “sex” discrimination in her high-court opinion Monday striking down as unconstitutional the unequal treatment afforded unwed American fathers and mothers whose children are born abroad.

The justice’s choice was intentional, as she criticized the federal law that had permitted the children immediate American citizenship if their mother was a U.S. citizen who lived in the United States just one year prior to giving birth but required American fathers to have lived in the United States for 10 years for the child to be considered an American at birth. In striking down the law, the court held that the 10-year residency requirement must apply to mothers and fathers unless and until Congress set a different time frame without regard to “gender,” Ginsburg wrote in Sessions v. Luis Ramon Morales-Santana.

Ginsburg explained why she prefers to refer to the evil as “gender” discrimination at her Supreme Court confirmation hearing in 1993.

“In the 1970s when I was (teaching) at Columbia (University law school) and writing briefs, articles and speeches about distinctions based on sex, I had a bright secretary,” Ginsburg told the Senate Judiciary Committee. “She said one day, ‘I have been typing this word, sex, sex, sex,  over and over. Let me tell you, the audience you are addressing, the men you are addressing’ – and they were all men in the appellate courts in those days – ‘the first association of that word is not what you are talking about. So I suggest that you use a grammar-book term. Use the word ‘gender.’ It will ward off distracting associations.’”

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