32 Pages Posted: 12 Mar 2012 Last revised: 12 Jun 2012
Date Written: 2012
Discrimination on the basis of gender identity or expression has emerged as a major focus of civil rights reform. Opponents of these reforms have structured their opposition around one dominant image: the bathroom. With striking consistency, opponents have invoked anxiety over the bathroom -- who uses bathrooms, what happens in bathrooms, and what traumas one might experience while occupying a bathroom -- as the reason to permit discrimination in the workplace, housing, and places of public accommodation.
This rhetoric of the bathroom in the debate over gender-identity protections seeks to exploit an underlying anxiety that has played a role in many efforts at civil rights reform: anxiety over the body. This article makes a first attempt to identify and analyze the role of anxiety over the body in civil rights reform, using as its primary point of reference the obsessive focus on bathrooms that antagonists exhibit in seeking to justify discrimination on the basis of gender identity and expression. It begins by exploring the mode of subordination that characterizes much anti-LGBT discrimination and examining the particular forms of anxiety over the body that are deployed against the civil rights of transgender people. The article then analyzes how resistance to reform in other areas of discrimination has been structured around the exploitation of anxiety around the body, situating anti-transgender discrimination in that broader civil rights history.
Keywords: civil rights, discrimination, LGBT, gender, gender identity, gender expression, transgender, gay, lesbian, bisexual, segregation, body, bathroom, ERA, train, railroad, military, DADT, swimming pool, recreation, feminism, sex, workplace, employment, public accommodation, housing
JEL Classification: J70, J71, J78, J79
Suggested Citation: Suggested Citation
Wolff, Tobias Barrington, Civil Rights Reform and the Body (2012). Harvard Law & Policy Review, Vol. 6, No. 1, p. 201, 2012; U of Penn Law School, Public Law Research Paper 12-27. Available at SSRN: https://ssrn.com/abstract=2019632