remain stigmatized, and the "role functions in a culture in which male and female sex and gender roles are viewed as essential, sharply differ- entiated and hierarchical. 236
Thus, nonbinary gender identities are diverse. Nonbinary people are targeted for discrimination due to animus, ignorance, disbelief, disre- gard, disrespect, and the threat they pose to traditional gender norms.
The movement for nonbinary gender rights has complicated relation- ships with other identity-based legal arguments. It may sometimes be in tension with feminist, LGBT, intersex, and antiracist legal efforts, but it also offers these movements new opportunities and possibilities for convergence.
II. A CONTEXTUAL APPROACH TO
Debates over procedural rules are instructive here.238 In these de- bates, scholars ask whether rules should be "transsubstantive," meaning the same in every substantive context.23 9 The benefits of uniform rules are simplicity and depoliticization. Uniform rules are easier for courts, lawyers, and the public to learn.240 They are depoliticizing, because they avoid debates over which rules apply in which contexts - debates that will inevitably entail political judgments.24 1 The main disad- vantage is that uniform rules may not serve the interests of particular substantive regulatory schemes. Uniform definitions are inappropriate for terms like "employee," a concept that serves different purposes under the common law, the Fair Labor Standards Act, the Occupational Safety and Health Act, the Tax Code, and so forth.242
The "simplicity" advantage of universal rules does not have much force in the context of sex and gender. Because there are relatively few contexts left in which the law requires an operative definition of sex or gender, devising contextual definitions is not an unwieldy legal project.243 The "depoliticization" argument works against universal definitions.
Because sex and gender identities are deeply controversial, personal, and important to many people, any attempt at universal definition will be met with immediate resistance. Even the distinction between sex and gender, once the pivot point of feminist argument, is controversial.244 Some on the left would prefer to deconstruct the distinction - following the views of influential theorist Judith Butler.245 They argue that the hormonal, genetic, nervous, and morphological aspects of what we call sex are only about sex because we call them that.246 Some on the right
238 1 have previously analogized legal sex to the property law "metaphor of a bundle of sticks."
Clarke, Identity and Form, supra note 28, at 829. Rather than thinking of ownership as a right to a thing, this metaphor suggests it "is a bundle of rights, such as the right to exclude others from the property, ... to sell the property, and so forth." Id. We might similarly think of legal identities as bundles of rights that can be unbundled. Sex might be unbundled into the right to use certain restrooms, to have particular occupations, to participate on certain sports teams, and so forth. See id. at 831-32; see also infra Part III, pp. 945-90.
239 See, e.g., Stephen N. Subrin, The Limitations of Transsubstantive Procedure: An Essay on Adjusting the "One Size Fits All" Assumption, 87 DENV. U. L. REV. 377, 378 (20-0).
240 Id. at 387.
241 See id. at 387-88.
242 See, e.g., Kristin E. Hickman & Claire A. Hill, Concepts, Categories, and Compliance in the Regulatory State, 94 MINN. L. REV. 1151, 1179-81 (2010).
243 See infra Part III, pp. 945-90 (listing possible contexts).
244 See supra section I.C.i, pp. 915-21.
245 See JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDEN- TITY 1-34 (1990).
246 Please forgive me for this oversimplification for the sake of brevity. See, e.g., Judith Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, 40
THEATRE J. 519, 522 (1988) (arguing that although sex and gender purport to be natural, they are both constituted by "tacit collective agreement to perform, produce, and sustain discrete and polar genders").
would prefer to reconstruct an integrated understanding of sex and gen- der.247 For example, the Catholic Church views traditional roles for men and women as natural rather than socially constructed.24 The nuances of these debates may be altogether lost on the judiciary, which uses the word "gender" rather than "sex" because the term "sex" sounds sala- cious.249 Ultimately, neither the Catholic Church,250 nor the American Psychological Association,25 1 nor the state of North Carolina252 can set- tle ideological controversies over sex and gender by defining terms.
Moreover, "there is no logically necessary connection between show- ing or proving that gender is contingent and achieving any particular substantive outcome or result. '253 Some opponents of transgender rights base their arguments on the premise that there is a distinction between sex and gender identity.254 They argue sex should be primary.255 Which definition of sex or gender should matter is a moral or political question.
It cannot be settled with factual arguments.256
247 Consider the views of the Vatican. See Mary Anne Case, After Gender the Destruction of Man? The Vatican's Nightmare Vision of the "Gender Agenda"for Law, 31 PACE L. REV. 802, 803 (20 1) ("For the last several decades, the English word 'gender' has been anathema to the Vatican and those seeking to influence secular law and policy throughout the world on its behalf.").
248 The Church's reasons include opposition to "ideologies which, for example, call into question the family, in its natural two-parent structure of mother and father, and make homosexuality and heterosexuality virtually equivalent, in a new model of polymorphous sexuality." Id. at 806-07 (quoting Letter from Joseph Cardinal Ratzinger, Prefect, Congregation for the Doctrine of the Faith, to the Bishops of the Catholic Church on the Collaboration of Men and Women in the Church and in the World (May 31, 2004), http://www.vatican.va/roman-curia/congregations/cfaith/documents/
rc con cfaith doc 20040731 collaboration en.html [https:Hperma.cc/7J5R-NNAX]).
249 In a now-famous story, then-lawyer Ruth Bader Ginsburg began using the term "gender"
rather than "sex" in the 197os, after her assistant pointed out that judges would be distracted by seeing the term "sex" in legal briefs. For a colorful retelling, listen to More Perfect: Sex Appeal, WNYC STUDIOS (Nov. 23, 2017), https://www.wnycstudios.org/story/sex-appeal/ [https:Hperma.cc/
946D-BR3J].
250 See Case, supra note 247, at 806-07.
251 See AM. PSYCHOLOGICAL ASS'N, DEFINITIONS RELATED TO SEXUAL ORIENTATION AND GENDER DIVERSITY IN APA DOCUMENTS (2015), https://www.apa.org/pi/lgbt/resources/
sexuality-definitions.pdf [https:Hperma.cc/CEA8-CWHH] (adopting progressive definitions).
252 See Public Facilities Privacy & Security Act, 2o6 N.C. Sess. Laws 3, § 1.3 (defining "biolog- ical sex" as "male" or "female"), repealed by 2017 N.C. Sess. Laws 4, § 1.
253 Shannon Minter, Why Gender Theory Should Not Determine Transgender Advocacy 13 (2010) (unpublished manuscript) (on file with the Harvard Law School Library).
254 See, e.g., Boyden v. Conlin, No. 17-cv-264, 2018 WL 4473347, at *4 (W.D. Wis. Sept. '8, 2018) (discussing the argument of opponents of health insurance coverage for transition-related care that
"sex is immutable, whereas gender identity is a developmental process"); WoLF Letter, supra note 213, at 2 (opposing nonbinary recognition on the ground that "[s]ex and 'gender' are distinct con- cepts" and arguing the law should only recognize sex).
255 WoLF Letter, supra note 213, at 2-4.
256 See David B. Cruz, Essay, Getting Sex "Right": Heteronormativity and Biologism in Trans and Intersex Marriage Litigation and Scholarship, -8 DUKE J. GENDER L. & POL'Y 203, 217 (2010) ("It misdirects our focus, to someone's political detriment, to appeal to the natural or to 'the facts' of sex (as proclaimed by medical practitioners) as the basis for what are really political judg- ments about what identities and relationships to recognize."); Robin Dembroff, Real Talk on the
Conversation might be facilitated by careful examination of the in- terests at stake in each potential area of sex or gender regulation.257 Whether sex or gender should be defined based on genetics, hormones, morphology, physiology, psychology, elective choice, documentary evi- dence such as birth certificates, public perceptions, something else, or not at all - is a difficult question to answer in general.258 The answer may be different if the law's purpose is to forbid discrimination, express respect for a person's identity, ensure accurate medical records, create fair divisions in sporting events, provide affirmative action for people disad- vantaged by male dominance, or some mix of these goals. Meanings may change over time. Rather than attempting to settle questions once and for all, contextualized definitions might create opportunities for var- ious constituencies to argue about what is at stake in each context of sex or gender regulation. To be sure, one danger of contextual analysis is that its results are contestable. Decisionmakers may ultimately priori- tize interests in different ways and arrive at different outcomes. 259 But a particularized approach may create opportunities for discussion about nonbinary gender rights that are not foreclosed at the outset by ideolog- ical or theoretical disagreements about the meaning of sex or gender.2 60