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The New Law of Gender Nonconformity

By Naomi Schoenbaum. Full Text.

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 anti-stereotyping 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. Courts have extended gender nonconformity protection to transgender persons in cases where discrimination is due to gender performance.

Notwithstanding its partial success, the gender nonconformity doctrine has been 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 transgender persons’ own identities. 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.

These losses and harms are not inevitable. They all stem from one error—misunderstanding transgender status as a matter of gender rather than sex—that can be corrected. The Supreme Court decision this term in Bostock v. Clayton County holding that transgender discrimination is sex discrimination without relying on the gender nonconformity doctrine begins to show us how. Although Bostock’s textual approach avoids the pitfalls of the gender nonconformity doctrine, it places transgender discrimination outside the core anti-stereotyping concerns of sex discrimination law. This is harmful both legally, when courts have to balance transgender rights against religious freedom, and socially, when transgender rights are seen to compete with women’s rights. So while courts should follow Bostock’s turn away from gender nonconformity in recognizing transgender discrimination across sex discrimination law, they should uphold what Bostock abandons: that transgender discrimination is of a piece with well-recognized forms of sex discrimination and that protecting transgender rights promotes sex discrimination law’s historic role in fighting sex stereotypes.