Gender & Identity: Looking Back on 2019 and Forward to 2020

In Nonbinary: Memoirs of Gender and Identity, “nonbinary people finally get a chance to define themselves by who they are.”

Society has traditionally categorized people into two sexes, male or female, based on genitalia at birth. But biology isn’t so simple. As the introduction to Nonbinary, by Micah Rajunov and Scott Duane (editors), states:

While in most babies sex is as straightforward as penis or vagina, in as many as 1.7 percent of births this is not the case… If you argue that biological variations in sexual dimorphism are too rare to be of much importance, then consider that roughly one in a hundred people have bodies that differ from the ‘standard’ male or female–a rate that mirrors that of people with red hair. Surely you know someone with red hair.

Indeed, I do! All three of my children are redheads. 

“Biological diversity,” according to the Introduction, “is only the first crack in the precarious male/female binary.” The stereotypes we associate with assigned sexes–such as pink for girls and blue for boys–are always changing, and we have a growing recognition in our society that a person’s gender identity (their sense of self) may be different from their biology or gender expression (how they dress, behave, etc). 

Nevertheless, a “very real bifurcation,” largely based on perceived biology, continues to exist, and many people (including J.K. Rowling) believe that a person’s assigned biological sex is such an important factor that it should predict (or trump) that person’s gender identity and gender expression.  As Rajunov and Duane explain, “The world remains largely divided in two–pink or blue, he or she, testosterone or estrogen, M or F–with no room for other.” 

The memoirs in this book are about people who do not fit into this binary. It’s about people who are “left out of language, paperwork, clothing stores, and bathrooms.” 

In 2019, Merriam-Webster’s word of the year was They/Them, a gender-neutral pronoun, but the gender binary remains strong. We see it in the continued prevalence of so-called “gender reveal” parties, sex-segregated public bathrooms, dress codes, and more.

In the United States, our civil rights laws reflect this binary too. In the workplace context, proving sex discrimination often entails showing that an employer treated someone of the opposite sex better than they treated you. But that doesn’t mean nonbinary people are left out entirely. We can argue that discrimination against a nonbinary person is discrimination based on gender nonconformity (a person’s “failure” to conform to stereotypes associated with their perceived sex/gender), which violates Title VII of the Civil Rights Act of 1964.

Soon, the U.S. Supreme Court will decide two cases involving discrimination on the basis of gender nonconformity in the workplace: Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (I wrote about these cases in Gay Writers, Stereotypes, and the Developing Law). These cases do not involve nonbinary employees directly (as far as I know from the documents and the oral argument), but the decisions will probably have an impact on their rights.

In Bostock, the Supreme Court will decide whether discrimination against an employee based on sexual orientation violates Title VII.

In Harris Funeral Homes, the Court will decide whether discrimination against an employee because they are transgender is a form of sex discrimination under Title VII.

The Court heard oral argument in these cases on October 8, 2019, and the transcript and audio are available on the Court’s website (See Harris Funeral Homes) (See Bostock).** 

Both situations fall clearly within the meaning of “sex” in Title VII. Had Mr. Bostock, a man who is attracted to men, been a woman, he would not have been fired. Similarly, had Ms. Stephens, the plaintiff in Harris Funeral Homes, been assigned female at birth instead of male, she would not have been fired. 

To me, both cases succeed on gender nonconformity grounds too. Mr. Bostock was fired because he did not conform to the stereotype that men are “supposed” to date women. Ms. Stephens was fired because she did not conform to the stereotype that people assigned male at birth “should” identify as men and behave the way society expects men to behave. 

But the employers and the Trump Administration disagree.*** They argue that Title VII is frozen in 1964, when, they assert, Congress did not perceive “sex” as encompassing “sexual orientation” or “transgender identity.” To them, it doesn’t matter that our courts have interpreted Title VII to address modern circumstances many times before, such as by interpreting it to prohibit sexual harassment (which wasn’t on Congress’s mind in 1964). The point of Title VII is to make sex irrelevant in the workplace. Interpreting it to include sexual orientation and transgender identity is necessary to fulfill this purpose.

It shouldn’t be hard for the Supreme Court to see that the circumstances in Bostock and Harris Funeral Homes fall within the plain meaning of the statute and comport with judicial interpretations of the law since 1964, but nothing is ever simple. Several Justices, based on their questions at the oral arguments, are struggling with how to abide by the plain meaning of the statute (as they are supposed to do) without unleashing a “parade of horribles” (to quote Justice Breyer, who tried to counter the concerns of his colleagues). 

The “parade of horribles” involves the rights of transgender and nonbinary people who do not fit within the gender binary. Several Justices seem concerned that if Title VII protects people on the basis of sexual orientation and transgender identity, the result will be “massive social upheaval” (in the words of Justice Gorsuch) involving an end to sex segregated bathrooms, locker rooms, sports teams, dress codes, and more.

The attorneys for the employees had no choice but to address these concerns, and they did it by supporting the gender binary, claiming that finding in favor of their plaintiffs will not end sex segregation in our society.

Pamela Karlan, the attorney for Mr. Bostock, said that employers may continue to treat employees differently on the basis of sex when there is no harm, and she claimed that there is no harm that results from sex-based dress codes and bathroom designations. She dismissed the harm a nonbinary person may experience as “an idiosyncratic preference [that] does not void an otherwise valid dress code or bathroom rule,” before backtracking and saying that the Court should ask someone who represents a transgender person instead of asking her. (See Bostock Transcript, Pg. 16, lines 11-13; Pg. 17, lines 8-12).

David Cole, the attorney representing Ms. Stephens, responded by saying that “transgender people follow the rule that’s associated with their gender identity. It’s not disruptive…It’s not disruptive that transgender people exist in this world and we still have sex-segregated dress codes.” (See Harris Funeral Homes Transcript, Pg. 27, lines 17-19; Pg. 28, lines 10-12).

But what about people who do not fit into one of these dress codes or either bathroom? Why are the Justices–and so many people in general–afraid of challenging the gender binary?

The Justices raised the issue of sex segregated bathrooms several times. For example, Justice Sotomayor said:

Mr. Cole, let’s not avoid the difficult issue, okay? You have a transgender person who rightly is identifying as a woman and wants to use the women’s [bathroom]… Their need is genuine. I’m accepting all of that… But there are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathrooms. That’s why we have different bathrooms. So the hard question is how do we deal with that? (Harris Funeral Homes Transcript, Pg. 10, lines 14-25, Pg.11, lines 1-5).

Some cisgendered women feel more comfortable in a bathroom limited to people who share their assigned sex, but why? 

In Chapter Twelve of Nonbinary (“Just Genderqueer, Not a Threat”), Jace Valcore writes:

Women in the United States have been made to believe that they must fear any unknown male… As a professor of criminal justice at a public university, I regularly teach a course on sex crimes in which students learn that over 90 percent of rapes and sexual assault are committed by males and that roughly 80 percent of victims are female… [But]

There is no logical basis to fear being sexually victimized by a stranger in a public restroom, regardless of their biological sex. It is a myth that strangers commit a large portion of violent and sexual offenses: approximately 88 percent of sexual assaults and rapes are committed by known persons, i.e., friends, spouses, family members, and acquaintances.

Thus, concerns about safety are based largely on myths about gender and criminality. Valcore’s point reminded me of an opinion in a district court case involving bathroom access for transgender students. The court said, “There is nothing to physically stop an individual with bad intentions no matter how the school district assigns bathroom and locker room usage.” Doe v. Boyertown Area School District, 276 F.Supp.3d 324, n. 61, aff’d, 897 F.3d 518 (3d Cir. 2018).

It is important to note that while the threat to cisgender women that may result from reduced adherence to the gender binary is speculative, the threat to transgender and nonbinary people when society fails to accept them is real. As Nonbinary explains:

Trans people are seven times more likely than the cisgender population to experience physical violence from law enforcement. Trans women are almost twice as likely to experience sexual violence compared to other survivors. Perhaps most worrisome, two-thirds of the victims of hate-motivated homicides are trans women of color. Aside from hate crimes and harassment, trans people face alarmingly high rates of poverty, unemployment, homelessness, and HIV, with scarce legal protections.

But rather than focusing on the harms transgender and nonbinary people face, several of the Justices seemed concerned about the comfort of cisgender women. These Justices are worried that an interpretation of Title VII that protects employees on the basis of sexual orientation and transgender identity will chip away at the gender binary, leading to “all gender” bathrooms and other “horrors.”

In Chapter Thirteen of Nonbinary (“What Am I?”), CK Combs writes:

For people who cling to their worldviews like life rafts, having that worldview challenged is a threat. And I have found that people who cling to biology-based binary gender are very threatened by those of us who cross gender lines or don’t believe in those lines at all.

The oral arguments in Bostock and Harris Funeral Homes suggest that several members of our highest court feel threatened. We’ll find out whether it’s a majority of them when the opinions come out by June of 2020.

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*Thank you to Monika @LovelyBookshelf for recommending this book (“Cis and binary trans people can learn so much by opening their mind and taking in these experiences”). I am a cisgender woman.

**A note for those who read the Bostock transcript instead of listening to the audio (or both): On page 41, line 15, the transcript reflects Justice Sotomayor speaking, but it’s Justice Kagan. I loved Kagan’s clear questions and analysis during these arguments.

***The Trump Administration participated as amicus in the Bostock case and argued on behalf of the Equal Employment Opportunity Commission in Harris Funeral Homes. The Administration took the position that Title VII does not protect LGBTQ employees.