Transitional Discrimination

Abstract:     
Transgenderism is in transition. The recent decision in Schroer v. Billington offers transgender plaintiffs hopeful precedent, but it is as yet unclear whether other courts will rule the same way in cases of transgender discrimination. This Essay, prepared for the Temple Political and Civil Rights Law Review symposium on transgender rights, argues that in order to ensure more consistent results in cases of transgender discrimination, courts should embrace an understanding of transitional identity. Transitional identity is identity that borrows from one or more extant identities, but which is inchoate, in that the identity does not express fully any of those extant identities. For instance, a religious convert has a transitional identity, because her identity borrows from the religion from which she is converting as well as the religion to which she will convert. Similarly, a transgender person has a transitional identity, because the person's identity borrows from the gender or sex from which the person is transitioning as well as the gender or sex to which the person will transition. This Essay argues that an understanding of transitional identity is preferable - in that it provides a more stable foundation upon which to fight the battle against transgender discrimination - to the prevalent understanding of transgender identity as gender nonconformity.

An overview of transgender discrimination cases in Part I demonstrates the confused conception of transgender identity that has animated courts' decisions. Part II describes what is meant by "transitional identity," and explains how an understanding of transitional identity in antidiscrimination law benefits not only transgender plaintiffs, but antidiscrimination law as a whole. Part III draws on intersectionality theory in developing a theory of transitional discrimination, which is discrimination on the basis of transitional identity. A brief conclusion summarizes this Essay's ideas.

Keywords: sexuality, gender, transgender, LGBT, discrimination, anti-discrimination, employment discrimination, intersectionality, norms

Accepted Paper Series