Toward a Functional Analysis of 'Sex' in Federal Antidiscrimination Law

56 Pages Posted: 1 Aug 2018 Last revised: 13 Jan 2021

See all articles by Maayan Sudai

Maayan Sudai

Harvard Law School; University of Haifa

Date Written: 2018


Recent struggles by transgender people to use public bathrooms that fit their gender identity have amplified an interpretative difficulty courts have been addressing for decades: whether the term “sex” in federal anti-discrimination law includes gender identity or not. The paper explains that current interpretations of sex offered by pro- and anti-trans advocates are often founded on narrow biological essentialist visions of sex that have no sufficient empirical grounding and are not supported by past doctrine interpreting “sex.” Accordingly, this paper argues that the search after a descriptively accurate definition of “sex” in science or law is futile, and therefore such narrow interpretations should be rejected in favor of a functional analysis of “sex” that focuses on what sex “does” rather than what it “is”. This paper suggests to adopt a functionalist approach to sex classification, inspired by the bona fide occupational qualification framework, to assess whether the classification is justified. The functional analysis examines the reasonableness of the relationship between the discriminatory act and the objective it sought to achieve, thus establishing a new balance between conservative and progressive interpretations of “sex” in federal antidiscrimination law, by shifting the weight of legal analysis from the mere act of classification to its necessity.

Suggested Citation

Sudai, Maayan and Sudai, Maayan, Toward a Functional Analysis of 'Sex' in Federal Antidiscrimination Law (2018). Harvard Journal of Law and Gender, Vol. 42, No. 2, Available at SSRN:

Maayan Sudai (Contact Author)

University of Haifa ( email )

Mount Carmel
Haifa, 31905


Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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