The Nonbinary Bogeyman

Abstract

This Response to Professor Marie-Amélie George's article Expanding LGBT, 73 FLA. L. REV. 243 (2021) uses the lessons from Professor George’s article about LGBT movement expansion and non-expansion to analyze how LGBT rights groups respond when opponents invoke the nonbinary bogeyman as a sword against gender-conforming, binary transgender people and their rights. Specifically, it uses a recent Eleventh Circuit bathroom case, Adams v. School Board of St. Johns County, as an illustrative example of how the State deploys the nonbinary bogeyman to attack transgender rights and how LGBT groups rebut the bogeyman arguments. Then, after describing LGBT groups' responses to the bogeyman, it questions the strategic efficacy of these responses. Although their assimilationist nature gives the responses clear strategic appeal, they fail to confront or undermine the logic of the nonbinary bogeyman and therefore may be insufficient to secure victories for binary transgender people, at least in some cases. As Professor George’s work shows, “bogeymen in the bathroom” arguments have been particularly powerful when left unchallenged, and national rights groups have struggled to secure wins when they leave the logic of the bogeyman intact. Finally, this Response provides an alternative argument to rebut the nonbinary bogeyman. This alternative response retains the current responses’ assimilationist themes, but it also attempts to expose the flawed logic in the bogeyman arguments.