Friday, April 3, 2020
Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minnesota L. Rev. (forthcoming)
A central tenet of sex discrimination law is the protection of gender nonconformity: unless a feature of biological sex requires it, regulated entities may not expect that individuals will conform their gender performance to the stereotypes of their sex. This doctrine is critical to promoting the antistereotyping aims of sex discrimination law by allowing gender nonconformers from aggressive women to caregiving fathers to challenge expectations that would limit them to the gender performance that accords with their sex. More recently, courts have extended gender nonconformity protection to transgender persons in cases where discrimination is due to the transgender person’s gender performance. The Supreme Court will consider this new law of gender nonconformity this term in EEOC v. R.G. & G.R. Harris Funeral Homes, which asks whether sex discrimination law of the workplace covers transgender discrimination.
Notwithstanding its partial success, the gender nonconformity doctrine is the wrong path for pursuing transgender rights. The doctrine has led to losses when transgender persons are discriminated against not for their gender performance, but for seeking recognition as their identified sex rather than the sex they were assigned at birth. Transgender plaintiffs are likely to continue to lose under the doctrine when seeking such recognition in the long list of contexts—like bathrooms, dress codes, sports, schools, and beyond—that are still lawfully sex segregated. Even transgender plaintiffs’ successes under the doctrine are Pyrrhic victories. Under the gender nonconformity doctrine, a plaintiff who was designated male at birth but who identifies as female is an effeminate man rather than a woman. The doctrine thus reinforces the notion that transgender persons are their birth-designated sex, contrary to substantial medical and legal authority, and to the claims of transgender persons seeking recognition as their identified sex. And treating transgender plaintiffs as gender nonconformers risks harm not only to transgender rights, but to protection for gender nonconformity, by raising the bar to prove such claims, even in paradigm cases. Regardless of the outcome in Harris, this Article has implications for transgender rights throughout sex discrimination law.
These losses and harms are not inevitable. They all stem from one error—misunderstanding transgenderism as a matter of gender rather than sex—that can be corrected. As a few courts have suggested, discrimination on the basis of seeking recognition for one’s identified sex is discrimination on the basis of sex. Contrary to the concerns of some courts and scholars, extending protection to transgender discrimination would advance rather than undermine the antistereotyping aims of sex discrimination law. Doing so under the right theory can protect transgender persons while promoting sex discrimination law’s historic role in fighting sex stereotypes.