They, Them, and Theirs

98 Pages Posted: 31 Oct 2018 Last revised: 10 Feb 2019

Date Written: January 10, 2019

Abstract

Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and theirs,” and recognition of a third gender category by U.S. states including California, Oregon, New Jersey, Minnesota, and Washington. People with nonbinary gender identities do not exclusively identify as men or women. Feminist legal reformers have long argued that discrimination on the basis of gender nonconformity — in other words, discrimination against men perceived as feminine or women perceived as masculine — is a harmful type of sex discrimination that the law should redress. But the idea of nonbinary gender as an identity itself only appears at the margins of U.S. legal scholarship. Many of the cases recognizing transgender rights involve plaintiffs who identify as men or women, rather than plaintiffs who seek to reject, permute, or transcend those categories. The increased visibility of a nonbinary minority creates challenges for other rights movements, while also opening new avenues for feminist and LGBT advocacy. This Article asks what the law would look like if it took nonbinary gender seriously. It assesses the legal interests in binary gender regulation in areas including law enforcement, employment, education, housing, and health care, and concludes these interests are not reasons to reject nonbinary gender rights. It argues that the law can recognize nonbinary gender identities, or eliminate unnecessary legal sex classifications, using familiar civil rights concepts.

Keywords: Nonbinary Gender, Pronouns, Antidiscrimination, Discrimination, LGBT Rights, Civil Rights, Feminism, Transgender Rights, Sexual Orientation, Intersex, Title ix, Title vii, Equal Protection, Athletics, Gender Recognition

Suggested Citation

Clarke, Jessica, They, Them, and Theirs (January 10, 2019). Harvard Law Review, Vol. 132, 2019; Vanderbilt Law Research Paper No. 18-61. Available at SSRN: https://ssrn.com/abstract=3270298 or http://dx.doi.org/10.2139/ssrn.3270298

Jessica Clarke (Contact Author)

Vanderbilt University Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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