This article asks what the law would look like if it took non-binary gender seriously. One contribution of this article is to provide the legal literature with a descriptive account of non-binary gender.
N ONBINARY GENDER
It concludes that the law does not require a universal definition of gender or gender that limits the options to two. This article's normative argument, advanced in Parts II and III, is that the law has no abiding interest in maintaining a universal system of binary gender or gender regulation that would exclude non-binary people.
The D iversity of N onbinary Gender Identities
At the same time, Soloway stated that they are "happy to speak on behalf of women and on behalf of feminism". Id. The survey defined transition as "living full-time in a gender other than that on their original birth certificate". Id.
R easonsfor B ias Against N onbinary People ........................................................... 91-0
Transgender R ights
Opponents of expanding discrimination law to cover gender identity can point to non-binary people as demonstrating the alleged absurdity of the project.168 Although these opponents may have been willing to agree that it is gender identity-based harassment for an employer to to insist if they refer to a transgender woman as "he" and "Mr." refer, they may disagree with requiring employers to use more unfamiliar pronouns, such as "ze and hir." 169 Issues related to pronouns are often distorted and politicized. However, Professor Volokh himself has a number of First Amendment objections to harassment doctrine in general, and may not even agree that it should be unlawful harassment to insult a transgender woman by calling her "Mr." and "him." See e.g. Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L .
Sexual Orientation
To the extent that nonbinary legal advocacy challenges the need for legal sex classifications, it can help legal arguments for nondiscrimination based on sexual orientation. Federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 196419' and Title IX of the Education Amendments of 1972,199 do not expressly prohibit discrimination on the basis of "sexual orientation." One controversy in federal courts is whether discrimination on the basis of sexual orientation is always a type of gender discrimination prohibited by federal law.20 0 The Second Circuit accepted the argument that it is, because to discriminate on the basis of sexual orientation, the discriminator must first classify people on the basis of sex - for example, the discriminator must identify a person as a woman, and then disapprove of her sexual attraction to other women.20 1 Opponents argue that this logic will destroy every sex classification by employers, disturbing, for example, sex-differentiated dress. This argument is consistent with a concept of sexual orientation that recognizes people outside of sex and gender binaries.
Intersex Variations
They may be able to secure legal changes that benefit all non-binary people. However, there is a risk that legal efforts on behalf of people with intersex variations may be limited to those who are considered to possess an immutable or natural trait.2 11 This may completely exclude claims from non-binary people without intersex traits. The new visibility of non-binary people may support “[t]he primary goal of the intersex movement,” which “is to eliminate or reduce the number of medically unnecessary cosmetic genital surgeries performed on infants with an intersex condition.
Antiracist and Postcolonial Struggles
216 Criticism has been expressed about operations on infants. It causes more physical and psychological trauma than growing up with atypical genitalia.” 217. For example, advocates for non-binary and other transgender people. 34;Cis” is a term that means the opposite of trans – in other words, a person who identifies with the gender associated with the sex he or she was assigned at birth. In many ways, masculinizing us body and our performance have been the basis for our dehumanization and denial of gender conformity.").
A CONTEXTUAL APPROACH TO NONBINARY GENDER RIGHTS
Non-binary people are the target of discrimination due to hostility, ignorance, disbelief, disregard, disrespect and the threat they pose to traditional gender norms. The non-binary gender rights movement has complex relationships with other identity-based legal arguments.
Against Universal D efinitions of Sex and Gender
The "simplicity" advantage of universal rules does not have much force in the context of sex and gender. 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 that sex should be primary. 255 Which definition of sex or gender should matter is a moral or political question. . Rather than trying to settle questions once and for all, contextualized definitions can create opportunities for multiple constituencies to argue about what is at stake in each context of sex or gender regulation.
R egulatory M odels for N onbinary Gender R ights
Sex or Gender N eutrality
One view is that marriage should be gender-neutral not only in the physical sense of the term, but also in the social sense of masculinity and femininity.2l This would mean eliminating gender—the old radical feminist dream of an androgynous or unisex society.2 2 But gender abolition is a problematic legal project for both theoretical and practical reasons.2 3 In theory – what would it mean to abolish gender. 292 See e.g. Williams, supra note 280, at Gender Disadvantaged People can be protected by properly naming a group: in this case, not mothers, but all those who have eschewed the ideal status of a worker in order to fulfill childcare responsibilities. ), who proposes a concept of "sporting gender" that would be determined based on testosterone levels solely for the purposes of sporting events and considered separate from one's own gender identity). ask "whether the policy or practice in question contributes entirely to the perpetuation of a lower class or disadvantaged position due to gender status").
Integration into Binary Sex or Gender R egulation
LEGAL INTERESTS IN BINARY SEX OR GENDER?
But this assumption may be based on unquestioned premises about the need for binary categories and simplistic ideas about legal options for advancing non-binary gender rights. This section rejects the argument that non-binary gender rights would undermine certain fundamental premises of the legal order, with unforeseen and disastrous results. This Part argues that in most cases, these interests are weak or unfounded, or they can be accommodated, if not better served, by one of the regulatory approaches to non-binary gender rights discussed in Part II: neutrality, recognition or integration.
Identification
331 See JAMES ET AL., supra note 2, at 89 (reporting that 1o% of non-binary respondents to the 2015 USTS were denied services or benefits when the name or gender on their identification documents did not match their gender presentation) . 335 Wipfler, supra note 28, at 526 (discussing this approach, which has been adopted by a number of municipalities, but arguing that it "still runs the risk of excluding those who choose not to include a gender designation as abnormal, if the majority of wearers choose to display their gender"). Hearing, supra note 86 (statement of Sen. Toni Atkins) (in response to the question, ``why even have sex or gender on an ID card or on a driver's license specifically'' responding, ``We could go the other way, but we would then really be further out of line with what other countries and states are doing").
Antidiscrim ination Rules
Personal documents such as passports, driver's licenses and birth certificates can also play an important role in a person's self-concept.344 Documentary formalities that recognize non-binary gender can justify an individual's claim to this status.345 When recognizing non-binary gender, the state and local governments express their moral equivalence to male and female gender identities, which can undermine discrimination by delegitimizing arguments that a non-binary identity is not real or valid. 3 4 9 There is an emerging consensus in federal courts that discrimination based on transgender status is a form of gender discrimination because it is based on gender stereotypes.35 0 This logic extends to discriminating against someone for not conforming to gender stereotypes that require a binary gender identity. 35 1 Those federal, state, and local laws that prohibit discrimination on the basis of "gender identity" should also cover non-binary gender identities. 35 2 Most of the arguments against banning discrimination against non-binary gender identities are no different. from arguments against banning discrimination against transgender identities in general. However, there are some issues that are uniquely relevant to extending protections to non-binary gender identities, including (i) whether it would eliminate the collection of data needed to identify patterns of gender discrimination and, relatedly, whether it would eliminate affirmative action for women (2) .
D ata Collection and Affirm ative Action
Pregnancy Protections
PARENTING LAW § 107 (UNION LAW COMM'N 2Q17) ("To the extent practicable, a provision of this [law] applicable to a father-child relationship applies to a mother-child relationship and a provision of this [law] applicable to a mother-child relationship shall apply to a father-child relationship." (amendments in original)). Ct Since only women get pregnant, discrimination against pregnancy by not funding abortion when it is medically necessary and when all other medical expenses are paid by the state for both men and women is sex-based discrimination.” This discrimination had a devastating effect on women.”). held that a benefit plan was discriminatory because "all the man's medical expenses related to their reproductive health, for family planning and for conditions specific to his gender are paid and the same is provided for women, except for the medically necessary abortion which is not endangering her life").
M isgendering and Pronouns
discussing the. “unresolved” controversy over whether Ontario's Human Rights Act grants the right to choose which gender-neutral pronouns to use). Alternatively, those who object to the gender-neutral honorific 'Mx'. have the option of avoiding gendered honorifics altogether, and not referring to students or colleagues as “Mr.” or. Those who object to gender-neutral pronouns may use proper names to refer to everyone, as the court ultimately did in one of its Zzyym opinions.4 26 In narrow circles, where the use of pronouns is impossible to avoid, equal treatment means “them " give the same respect as "he" and "she".
Sex-Specific R oles and Program s
Athletics
441 Cf. DAVIS, supra note 288, at 113-14 (requesting that, for each age and level of play, organizations reconsider the purposes of sex segregation in athletics, which may promote equal opportunity, student athletics, recreation, or elite competition, or cater to fans' desires for gender specialization). 459 See Leong, supra note 455, at 1286-87 (proposing a gymnastics competition combining men's and women's events, "floor, vault, beam, parallel bars, uneven parallel bars, high bar, pommel horse, and rings," in which the best versatile athlete would win). 482 Buzuvis, supra note 449, at 40-42 (discussing evidence that there is no linear relationship between endogenous testosterone and performance, that elite male and female performance levels often overlap, that women whose bodies are insensitive to testosterone are overrepresented among female athletes , and that many male athletes have low testosterone levels).
W orkplaces
The most commonly accepted gender-based BFOQ argument is that certain jobs must be filled by men or women to protect the privacy interests of patients, clients, or inmates, to be viewed or touched only by members of the same gender.5 0 1 To the extent that non-binary people throw the wrench into this doctrine, is a good solution. Whether any particular non-binary person could trigger fear of sexual assault in vulnerable populations is not a question that can be answered generally due to the diversity of the non-binary population. Like the Ricci framework, a BFOQ defense would require an examination of the business justifications for a different standard.
H ousing
Transgender people may end up being required to use inadequate or stigmatizing third-party facilities when the male or female facilities would align with their gender identity.5 52 Another temporary solution is to allow non-binary people to use the facility they feel most comfortable with in or which they believe best matches their sex or gender, just as transgender men and women should be able to. Economically marginalized transgender people face difficulties in seeking social services and shelters due to gender segregation.565 Due to fear of violence and harassment, transgender and non-binary people who need these services may not even approach them.566 Department of Housing and Urban Development regulations require single-sex emergency centers and other services to take into account a person's stated gender identity,5 67 but this policy does not help in cases where a person's identity is non-binary.568 Gender-neutral social services may be the best solution for survivors of gender-based violence.569 Arguments related to women's safety are troubling in this context.570 The assumptions of masculine predation and invulnerability that underpin these defenses of gender-segregated services are unsupported and harmful to men.57 1 There are some anecdotal evidence that training and education can help undermine these assumptions.57 2 Providing all residents with locking doors, panic buttons, and other measures can improve security and ensure a sense of security.57 3 Nevertheless, for temporary shelters, or those who cannot afford private rooms or apartments, there may be a good argument for continuing to segregate shared bedrooms according to gender identity57 4 - based on the same considerations as any Campus housing is a problem for transgender students in general.577 Many educational institutions are developing gender-inclusive housing policies.57 8 For example, one school "lets students live in a suite with others regardless of their gender or gender identity" if they "complete a gender-inclusive housing contract , confirming their agreement.
H ealth Care
34;current gender identity.'586 Patients should be assured that their answers to questions about gender and gender identity will be kept confidential, just like other health information. One set of guidelines concludes that "all of the recommended practices could be easily implemented in any health care setting, without the need for extensive structural changes or extensive knowledge about gender identity."5 7. While health care providers should affirmatively accommodate nonbinary patients and insurance companies must cover medically necessary care, the law seems to require at most neutrality.
