Michigan Law Review
A short time ago, the argument that sex discrimination includes discrimination on the basis of sexual orientation was considered a risky litigation tactic with little hope of success. One reason was the fear that extending sex discrimination law so far would upset all sex classifications, even those on restroom doors. But the landscape has shifted. The EEOC now takes the position that sex discrimination includes all forms of discrimination based on sexual orientation and gender identity. Administrative agencies interpret federal law to require that workers and students be allowed to use restrooms consistent with their gender identities. Some federal courts are beginning to adopt these arguments, while others wait for direction from Congress or the Supreme Court. Kimberly Yuracko’s new book, Gender Nonconformity and the Law, could not come at more opportune time. The book surveys the terrain of sex discrimination law as it pertains to gender nonconformity, and warns that the cases demonstrate a troubling trajectory of “status” protection — protecting only those aspects of gender identity that courts consider immutable. These cases reify a medical, binary, and static view of gender, shutting down a “wider range of gender possibilities that might lead to more personally fulfilling lives for individuals and more creative and adaptable environments in the workplace.” This book review examines how sex discrimination arguments against LGBT bias have gone from nonstarters to front runners in the time since Yuracko’s book was written, and it asks whether these cases have continued on a dangerous trajectory of status protection. It concludes that recent litigation has the potential to move away from status protection, as courts and advocates advance arguments about social stigma and intersecting systems of bias that sound in anti-subordination theories.
Jessica Clarke, Frontiers of Sex Discrimination Law, 115 Mich. L. Rev. 809 (2017), available at https://scholarship.law.umn.edu/faculty_articles/589.