What's at Stake in Transgender Discrimination as Sex Discrimination?

Signs: Journal of Women in Culture and Society, Vol. 32, No. 1, pp. 83-111, Autumn 2006

29 Pages Posted: 21 Oct 2006  

Anna R. Kirkland

University of Michigan at Ann Arbor - Women's Studies Program; University of Michigan at Ann Arbor - Department of Political Science

Abstract

A federal court recently held that discrimination against transsexuals is illegal sex discrimination under Title VII of the 1964 Civil Rights Act. The linchpin of the ruling is the legal concept of sex stereotyping. Feminist legal theorists have celebrated cases protecting gender non-conformists from discrimination and harassment, but we have not yet fully evaluated what we get when we get legal protections based on stereotyping. How does the concept of the illegal sex stereotype govern sex discrimination law? What does it mean to enfold transgender discrimination into sex discrimination law without naming and describing it separately? Perhaps law can be used merely instrumentally, and so any route to a winning verdict is acceptable. But if law is constitutive of identities in important ways, perhaps even as it is also instrumental, then calling transgender discrimination sex discrimination will have significant consequences. This study takes stock of those political and legal implications, arguing that although the winning case is worth celebrating, it depends upon an untrustworthy jurisprudence.

Keywords: sex discrimination, transgender discrimination, sex stereotyping, Title VII

Suggested Citation

Kirkland, Anna R., What's at Stake in Transgender Discrimination as Sex Discrimination?. Signs: Journal of Women in Culture and Society, Vol. 32, No. 1, pp. 83-111, Autumn 2006. Available at SSRN: https://ssrn.com/abstract=877479

Anna R. Kirkland (Contact Author)

University of Michigan at Ann Arbor - Women's Studies Program ( email )

204 South State Street
Lane Hall
Ann Arbor, MI 48109
United States

University of Michigan at Ann Arbor - Department of Political Science ( email )

Ann Arbor, MI 48109
United States

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