Deconstructing the Body: Transgender and Intersex Identities & Sex Discrimination – The Need for a Strict Scrutiny Approach
34 Pages Posted: 14 Apr 2010
Date Written: April 14, 2010
Despite the judiciary’s belief in the permanency and inevitability of sex, and its confidence hat “[e]very schoolchild, even of tender years . . . can tell the difference [between a man and a woman],” even at the level of biology, sexual identities evade neat and tidy description and binary categorization. Every year, hundreds of people seek to change their legal genders like J’Noel Gardiner – resisting the notion that sex is fixed and determined at birth. In addition, every year hundreds of infants are born intersex – with bodies that fuse the chromosomes, hormones, gonads, genitals, internal sex organs and secondary sex characteristics typically thought to be so defining of “male” and “female.”
Faced with the true complexity of sex difference and sexual identities, the binary sex classification system can only be viewed as an arbitrary system that disciplines the body and naturalizes the notions of “male and female” in ways that defy logic, compassion and medical science. Thus, this Article envisions a new equal protection doctrine that regards sex classifications as suspect on grounds that their very imprecision. In so doing, this Article advocates for transgender and intersex persons as well as all those who are harmed by the narrow and rigid jurisprudence on sex. This includes pregnant women, gays lesbians and bisexuals, and all those who are non-normatively gendered or sexual identity deviant – e.g., masculine women, effeminate men, men who enter female-dominated professions like nursing, women who long to work in a labor market not beholden to sex stereotyping.
Keywords: transgender, intersex, sex discrimination, equal protection, 14th amendment, LGBT
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