Tuesday, May 19, 2020

Schoenbaum on Stereotyping Theory

While we wait for the SCOTUS opinion in Harris, Zarda, and Bostock, Naomi Schoenbaum has just posted her latest article, The New Law of Gender Nonconformity (forthcoming in the Minnesota Law Review). Her article critiques overreliance on stereotyping theory to adjudicate transgender discrimination claims.

The Article is available here https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=3546552

Sandra Sperino


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As noted in the article’s abstract:

“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.”

So true. But more is needed: stop using T words, such as transgender, transsexual, and transition. T words needlessly confuse the issue and conjure up stereotypes. If we accept people based on their gender identity, as the medical community does, there is no need to label them. They didn’t transition from male to female (or vice versa). They merely accepted who they are.

Sharon McGowan, legal counsel for Diane Schroer, put it this way: “[A]rguing that Ms. Schroer was a man who failed to conform to social stereotypes associated with men felt uncomfortable to many of [her lawyers]. It felt as though we would be disavowing Ms. Schroer’s identity as a woman, and accepting society’s discriminatory conception that transgender women are just men who want to dress as women.” As McGowan notes in the first sentence of the terrific article Working With Clients to Develop Compatible Visions of What It Means to “Win” a Case: Reflections on Schroer v. Billington (https://harvardcrcl.org/wp-content/uploads/sites/10/2009/06/205-2461.pdf), Schroer explained to McGowan, “I haven’t gone through all this only to have a court vindicate my rights as a gender non-conforming man.”

So let’s refer to Diane as a woman, not a transgender woman.

Posted by: Christine Duffy | May 20, 2020 5:08:00 AM

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