INVISIBLE LANGUAGE

I - Clarification

On May 31, 2024, a new bill was signed into state law by Governor Kevin Stitt. Oklahoma House Bill 1449 is not a lengthy text, particularly by legislative standards; though somehow, with such few bits of string, its prospectors have cast a dangerously wide net. Principally authored by Representative Toni Hasenbeck (R-Elgin) and Senator Jessica Garvin (R-Duncan) in February 2023, the bill stipulates that it “shall be known as the Women’s Bill of Rights.” The actual Bill of Rights notably, and with specificity, granted pivotal legal protections to Americans. The “Women’s Bill of Rights” seeks to revoke them—but not overtly.

A research analysis of the bill, prepared by Suzie Nahach on March 1, 2023, states: “The purpose of this measure is to clarify state law with respect to how persons of both biological sexes are treated as such under state law.” What exactly do Oklahoma Republicans—the lone political proponents of this bill—want to clarify? And why?

II - Control

The difference between scientific and societal laws is that gravity isn’t altered by interpretation; its power can only be observed and defined. But within the legislative system, a definition is power. OK HB1449, therefore, seeks to consolidate power within that system by setting constrictive legal boundaries around words as broadly used and culturally weighted as “man” and “woman,” then superseding those boundaries across “all laws… contingent upon the classification of a person as being male or female... including, but not limited to, any educational benefits, employment protections, and civil rights laws” [SECTION 1].

Specifically, SECTION 2 amends the Oklahoma Statutes by “clarifying” definitions for the following words: father, female, male, man or boy, mother, natural person, sex, woman or girl. Below is a screenshot of the now legally binding definitions. Consider what the language of a definition might imply, even if not explicitly stated; the exclusions are just as cardinal.

The bill constructs a funnel of language and logic. However, its construction is flimsy, sparsely detailed—treating nuanced words as simple variables in a formula to plug in for a desired outcome. Following the funnel’s logic, “biological sex at birth” becomes the determining factor of a person’s legal gender identity, because a “man” is a “natural person” who is “male,” and a “woman” is a “natural person” who is “female.” First, by purposefully conflating a biological identity of sex—“male” and “female”—with a cultural identity of gender—“man” or “woman”; then, by stating, “Sex is a natural person’s biological sex at birth”—aka assigned gender—Republicans have indirectly (that is to say, allusively) closed any legal separation between gender and sex.

Not only does their language implicitly demand every Oklahoman legally comply with the traditional gender binary, but the bedrock definitions for that binary—“male” and “female”—are simultaneously wildly constraining and woefully incomplete. The text additionally fails to establish any extensive explanation of “biological sex,” instead listing only production, transportation, and utilization of either sperm or eggs as the solitary (thus deciding) variable in what constitutes an individual’s legal identity of “male” or “female”—effectively reducing citizens’ gender/sex identity to not just genital structure, but the apparent function and operation of that structure as it pertains to “fertilization.”

These imposed limitations are far from intellectually rooted. Agustín Fuentes is a Professor of Anthropology at Princeton University who rejects the idea that biology only creates two types of people and submits science actually points to a more multifaceted understanding of human nature. In a prescient opinion piece for The Scientist from 2022, Fuentes stated: “Sex, biologically, is not simply defined or uniformly enacted. In humans, having two X chromosomes or an X and a Y chromosome does not create binary bodies, destinies, or lives.” While there are distinctive bodily differences in certain capacities and developmental patterns, many studies indicate that the differences between adult men and women are not dictated purely genetically, but by the “dynamics of biology and culture.”

Fuentes says humans are naturenurtural: a true fusion of nature and nurture. This is due in part to what is known as neuroplasticity. The brain literally changes in response to the environment and stimuli; using advanced imaging technology, neurobiologist Dr. Gina Rippon and her team spent years examining the process of those changes. They observed that the brain is not only “plastic,” but also predictive and permeable from birth, especially with regard to social activity. This underscores how human brains are wired to be influenced by their cultural surroundings. After outlining her findings in a 2020 TED Talk, Rippon concisely concluded: “a gendered world produces a gendered brain.”

This ossification isn’t an unintentional outcome of this sort of gendered legislation; it’s the goal. While the bill’s authorship and approval are an objective intellectual overstep, interpreting these actions as merely scientifically nescient is not possible due to the inclusion of the term “natural person” (the use of natural meant to translate as at or from birth). Creating this additional, separate qualifier of “person”—a linguistic sub-species—only serves to other any person, or group of people, that does not, cannot, or will not conform to the regressive terms. This very act shows a clear intention to segregate, despite what its authors say—or rather, won’t say. Even Fox News can clearly convey that the bill serves primarily to “legally separate transgender women from those born female.”

III - Consequence

If legislative power lies in definitions, and their possible interpretations, then the deceptive linguistic funneling of the “Women’s Bill of Rights” won’t lead to an expansion of protections—as its self-ascribed name would imply—but to more truncation and restriction. Its wording practically prevents Oklahomans from enacting any change to their own legal gender identity. Executive Director of Freedom Oklahoma Nicole McAfee offered a more honest nickname (the “trans erasure act”) in a grieved response to the bill’s progression back in April, calling it “a cheap shot at a community that already clearly understands many of those in power don’t see us as welcome, as full members of the broader Oklahoma community deserving of basic dignity and respect.”

Except, even those who willingly align with the binary may not be allotted that basic dignity either. SECTION 3 of OK HB1449 amends what constitutes sex discrimination—and therefore what is protected by the state—hacking the definition down to “unfair treatment of females or males in relation to similarly situated members of the opposite sex.” SECTION 4 compounds this by redefining the word equal in regards to their terms for the binary sexes, stating that “to differentiate between the sexes shall not necessarily be construed to be treating the sexes unequally.”

Essentially, Republicans have extended the margins for discriminatory practices. Again, following the funnel of logic—a woman might contribute the majority of labor to a project, then be paid less or receive less respect than male colleagues who didn’t contribute as much, but that would no longer strictly qualify as “sex discrimination.” Principal authors Hasenbeck and Garvin provided this statement (presumptively, without a hint of irony) in a post from August 2023 on the House of Representatives website: “While we are glad to see this policy take effect, we are disappointed the governor did not acknowledge the efforts of the female legislators who authored the policy, spent months rallying support for it, and invested hours before committees and on the chamber floor debating its merits.”

At least a few of their colleagues across the aisle voiced their dissent. Per Janelle Stecklein of Oklahoma Voice, Minority Leader Cyndi Munson (D-Oklahoma City) said, “As a woman, I do not need a government to define who a woman is, define who I am, especially one led by a majority of men.” Trish Ranson (D-Stillwater) objected to the misleading name of the bill and its narrow definitions, deducing that “if [it] becomes law, she’ll have to prove her biological sex.”

Despite no Democrats voting in favor of the bill, its passage (79-17) was all but assured by Republican-held majorities in both House and Senate. Trevor Brown of Oklahoma Watch called them “historic” in an analysis published in KOSU in June 2022; at the time of publication, the GOP occupied more than 81% of the 149 Legislature seats. “Almost every election cycle since [the mid-2000s], Republicans have picked up seats,” Brown said, and Oklahoma Watch’s evaluation of the pass rates of bills revealed that their representation has become dominant. In the 2021 & 2022 Oklahoma legislative sessions, 991 bills that were authored by Republicans passed, while only 40 bills that were authored by Democrats passed. Such a small minority renders Democrats “unable to stop votes they oppose” and leaves them with little power to push their own policies.

Though OK HB1449 was a strictly partisan effort, elected officials might not be the only ones assembling this legislation. As reported by Sean Murphy for The Associated Press: when Governor Kevin Stitt signed an executive order introducing the first instances of these definitions back in August 2023, he was flanked by members of a vocally anti-trans group called Independent Women’s Voice. That particular signing coincided with legal battles in Kansas “over the meaning of a state law that Republican legislators also christened the Women’s Bill of Rights,” which rolled back transgender rights.” That legislation, Murphy contextualizes, was “based on language from several anti-trans groups, including Independent Women’s Voice.” He also notes another executive order signed by Stitt in 2021, which prohibited changes to a person’s gender on birth certificates.

These escalating legal actions are the result of a “commitment to a simple binary view,” foreseen by anthropologist Agustín Fuentes in his aforementioned article in The Scientist. The Tenth Amendment from the actual Bill of Rights, ratified December 15, 1791, reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Should the People not be delegated the power to determine their own identity, to define themselves? Should the State be permitted to claim that power, particularly when its officials have shown intentions to wield it disparately?

Continuing a pattern of increasingly dogmatic lawmaking, Oklahoma Republicans are using invisible language, in words both written and spoken, to surreptitiously funnel power to a select few by forcing restrictive definitions onto everyone. This bill belittles each and every Oklahoman by demanding to define them, in turn diminishing their capacity to define themselves.