Wednesday, January 29, 2020

They, Them, and Theirs: Including Nonbinary Gender Identities in Law and Policy with Cici Coquillette

Nonbinary gender has become increasingly visible in American life over the last few years. Nonbinary gender means that individuals do not identify exclusively as men or women; some identify as a gender, genderqueer, or genderfluid, among others. Gender identity is distinct from sex assigned at birth or gender expression. While some nonbinary people do identify as trans, intersex, or androgynous, nonbinary gender identity exists separate and apart from these other categories.

Nonbinary gender is neither a new phenomenon nor a specifically American one: many other cultures have had nonbinary gender categories for centuries, including Indian hijra and Native American Two-Spirit. Nevertheless, nonbinary gender has become increasingly salient in the last few years. Beginning in2017, nonbinary actor Asia Kate Dillon portrayed the first nonbinary character on mainstream American TV on the show Billions. Dana Zzyym, a nonbinary and intersex activist, recently won a court case to permit an X gender designation on a U.S. passport, rather than M or F. According to the Williams Institute, there are approximately half a million nonbinary individuals in the United States–roughlythe population of Miami.

Despite this increased visibility, some have expressed hesitancy about nonbinary gender, worrying that accepting nonbinary gender would throw our legal system into disarray. Even some progressive feminists and LGBT activists worried that fully incorporating nonbinary gender would be impractical or utopian. But is this true? How does the law actually use binary gender classifications? And what would it look like for the law to take nonbinary gender seriously?

Professor Jessica Clarke, Professor of Law at Vanderbilt Law School, presented on her recent paper They, Them, and Theirs, published in the Harvard Law Review. Professor Clarke has written extensively on American equality law, including constitutional and statutory anti-discrimination law. In this paper, Professor Clarke argues that law and policy can modestly extend existing civil rights concepts to protect nonbinary individuals and, in so doing, can benefit the feminist and LGBT rights projects more broadly.


After the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, which struck down laws that defined marriage as between a man and a woman, only a few laws actually refer to men or women in binary gender terms. Professor Clarke notes several in her paper, including laws governing gender markers on identification documents, affirmative action for women, single-sex schooling and sports teams, and sex-segregated restrooms and housing. Even in these narrow areas in which the law still relies on binary gender, Professor Clarke argues that one of three mechanisms can incorporate nonbinary gender without significantly disrupting the legal scheme.
The first, sex and gender neutrality, would eliminate all gender classifications in an area of the law. One example would be creating “all-gender restrooms” rather than gender-segregated ones. The second, third category recognition, would create a new legal category for nonbinary gender on par with existing binary gender labels. As with the Dana Zzyym case, this could entail having an “X” gender marker on a passport, rather than “M” or “F.” Finally, integration would reinterpret categories along functional lines to make space for nonbinary individuals. Professor Clarke notes that a gynecologist might say “I only treat people with a uterus, ovaries, or other body parts I specialize in” rather than “I only treat women, thereby encompassing nonbinary individuals, trans individuals, and those with intersex characteristics who might not identify as “women” but still need gynecological care. Critically, Professor Clarke says, no one of these mechanisms will work perfectly in every context. Instead, we must ask what competing interests are at stake in each legal context.


Because this year’s WAPPP seminar series is focused on the workplace, Professor Clarke presented on two legal contexts most relevant to workplace inclusion: pronoun use and restrooms.


One of the main oppositions voiced to accepting nonbinary gender is the concern that workplace harassment law will require the use of unfamiliar pronouns, such as the singular they or pronouns likeze/hir. Certain right-wing media outlets consider this possibility to be a unique, unprecedented threat to free speech. In fact, rules requiring respect for an individual’s preferred pronouns under a “recognition” approach would require only a modest extension of existing harassment law.

American equality law indicates that some speech can be compelled when that speech reflects a change toward equality. In the famous Miss Mary Hamilton case, a civil rights activist challenged the practice of referring to Black litigants only by their first names in court. Mary Hamilton was held in contempt of court when she refused to respond to “Mary” rather than “Miss Hamilton.” The U.S. Supreme Court summarily reversed the contempt charge, holding in 1964thatcourtscannotdiscriminate on the basis of race in their form of address.In the 1970s, feminists advanced the honorific “Ms.” to deflect attention away from marital status for women, which has since seen widespread adoption. The same may occur for the nonbinary honorific “Mx.” It is well within the law’s purview to compel speech that confers equal respect.

Professor Clarke dismissed concerns based on the grammar of the singular “they.” In addition to the normative objection–that the rules of grammar should not trump whether we treat one another with respect–practically, English has always used a singular “they” for people of an unknown gender. Similarly, concerns that a singular and plural “they” will be confusing lack merit: English has a singular and plural “you” that people are able to navigate without much trouble. Language is dynamic and continually adapts to new social contexts.

Crucially, accidental misgendering or mistakes in pronoun usage are generally not a legal violation. It is only repeated, intentional refusal to use someone’s preferred pronouns as a form of disrespect that would trigger harassment law. Harassment must be both subjectively offensive and objectively unreasonable: this objective standard takes into account social norms. As more people decide to use nonbinary pronouns or honorifics, the idea that it is reasonable to refuse to use someone’s preferred terms will lose force. Just as binary terms are respected, so too should nonbinary terms.


Several states have recently introduced “bathroom bills” that would restrict public restroom access for trans and nonbinary individuals. These bills play on fears of trans or nonbinary people that are not supported by evidence. In fact, trans and nonbinary people are disproportionately likely to be victimized by harassment and violence in public restrooms, rather than being perpetrators. In this context, Professor Clarke calls for a “neutrality” approach, moving toward all-gender restrooms as beneficial for gender equality and defanging anti-LGBT bias.

Rather than the individuals using them, the biggest problem for public restrooms in the United States is their design: the large gaps in stall doors, among other design features, do little to confer a sense of privacy. The lack of privacy and security built into public restroom design hinges on heteronormative assumptions, that restroom users shouldn’t be threatened by same-gender users. However, restroom users may want privacy for any number of reasons apart from the presence of other users, and there are a number of other possible design solutions to accommodate greater restroom privacy without restricting who uses it. All-gender restrooms with enclosed stalls and communal sink areas would be particularly useful in the workplace, where productivity is often sacrificed to waiting in line for gender-segregated restrooms.

Even ostensibly practical barriers to implementing all-gender restrooms are surmountable. Anachronistic building codes that require segregated restroom facilities can be changed or worked around, and converting to all-gender restrooms is no more costly than a typical retrofit. Some might argue that1.4 million trans people and 500,000 nonbinary people in the United States is too small a number to justify the cost, but with 3.4 million wheelchair users in the United States, every restroom must comply with the Americans with Disabilities Act. Restrooms have been redesigned to be more accommodating in the past and could continue to do so in the future.

Nonbinary gender identity is increasingly better understood and accepted, but nonbinary people still experience violence, harassment, and discrimination. Professor Clarke persuasively argues that nonbinary inclusion using familiar civil rights tools will not only not upend our current legal regime, but may have benefits for us all.

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