Legislative Intent and Ordinary Meaning

The purpose of this paper is to offer an account of sex and gendered terms as “open textured” predicates. The idea of open texture is familiar to lawyers from H.L.A. Hart’s (1958, 1963) canonical discussions, but it originates in the work of Friedrich Waissmann (1945), who (roughly) defined open-textured predicates in terms of their openness to unexpected applications in future cases. My account of open-textured predicates deploys Sam Cumming’s (2022) and John Horty’s (2024) accounts of open-textured predicates in terms of “semantic reasons”. According to the semantic reasons account, analysis of open-textured predicates involves identifying a set of defeasible rules governing their application, rather than the identification of logically necessary or sufficient conditions. I argue for an analysis of sex and gender terms (like “man”, “male”, “woman”, and “female”) in terms of defeasible, rather than strict and exceptionless rules. I motivate this form of analysis by examining the failure of attempts to identify either necessary or sufficient conditions for application of these predicates in legal contexts. I suggest that this form of analysis has important implications for the legal and philosophical understanding of sex and gender. Legally, it suggests that courts, in particular, should abandon interpretive approaches to sex and gender terms that are focussed on the identification of either necessary or sufficient characteristics for their application. Judgments in favour of the restriction or extension the application of these predicates should focus on identifying legally relevant reasons for their restriction or extension. Philosophically, the analysis of sex and gender terms as open textured terms provides an interesting alternative to more canonical contextualist and expressivist accounts. More broadly, I conclude by suggesting that the notion of open texture has an important role to play in debates concerning what David Plunkett and Alex Burgess (2013) call “conceptual ethics”, in which normative and evaluative considerations seem to have bearing on our semantic choices.