Gender Blog Essay

Their Law

Many gender-neutral restrooms and locker rooms are behind locked doors.  Not in the same sense that all bathroom doors are locked; rather, these spaces can be accessed only by either being lucky enough to slip in behind someone with authorization, or by pleading one’s case before some sort of decision maker—a literal gatekeeper.  In the most immediate sense, it’s the gym manager (“Can I use the temporary gender neutral facility?”), the information desk person (“Can you let me into the family restroom?”), or the key card provisioner (“I need access to the other floor because that’s where the bathroom I can use is. Please.”).

Other aspects of gender-neutral life can require a different, but intimately related, set of recitations to a more metaphorical set of gatekeepers.  Sometimes these pleas are heard by a therapist (“Can you give me a diagnosis so I can get this covered by my insurance?”), a doctor (“Please just let me have the anti-depressants so I don’t become another suicide statistic.”), or a judge (“Your honor, don’t make me publish my old name and new name in the newspaper in order to effectuate my name change.”).  Other times they are addressed to an HR manager (“My colleague called me by the wrong pronouns for the entire meeting and my boss didn’t correct him.”), a lawyer (“The new shift manager kept snickering about my pronoun pin and marked me as late even when I wasn’t…do you think I have a case?”), or an athletics organizing body (“Look, I just want to lift weights, okay? I don’t care which category I’m in.”).

It is the law that underlies these requests that Professor Jessica Clarke takes up in They, Them, and Theirs, her law review article on nonbinary people.  Rather than focusing on the moral claim that nonbinary people should have their genders taken seriously, Clarke takes up the logistical arguments that critics have mounted against nonbinary gender claims.  Most simply, she argues that including nonbinary people in existing social institutions would not require radical changes to the law.

Professor Clarke’s biggest contribution to the literature is her classification of regulatory models for nonbinary gender rights.  She identifies three potential options, carefully and rightly noting that they are not mutually exclusive and should be used in conjunction: third-gender recognition, sex or gender neutrality, and integration into binary sex or gender regulation.  It is the third option where she spends the bulk of her time and energy, as it is most consistent with her thesis that integrating nonbinary gender into existing gendered systems can be done without presenting significant issues, so long as it is done in a way that is aware of the contextual work that the gender or sex classification was doing.  It also connects directly to the implicit subtext of her article, which reassures her (presumably cisgender or at least binary) audience that not too much needs to change in order to allow nonbinary people to slip nicely into the existing system of gender.

Clarke’s thesis is not wrong.  She ably points out many ways in which nonbinary people can fit easily into existing systems and pushes back against common arguments, from the tyranny of grammar to the imagined threat of sexual predators in restrooms.  There is certainly a strategic argument to support the integration of nonbinary people into existing systems of state-sponsored gender.  But advocates for nonbinary people should not start with a goal of assimilation, even if that is where they end.  Fitting nonbinary people into existing law will not eliminate the discrimination that nonbinary people face because it will not eliminate the gender binary.  The liberatory and radical ideals that so many nonbinary people have articulated demand more than an additional option on gendered forms.

Aside from its lack of engagement with the radical ideas of actual nonbinary people, Clarke’s argument has two additional flaws.  First, an assimilationist approach that weighs nonbinary rights against the interest in maintaining a binary system will provide inadequate protection to nonbinary people.  It places the decision of whether rights are “worth it” in the hands of binary people, virtually ensuring that they, not nonbinary people, pass judgment on which of the many daily struggles over gender nonbinary people should actually have recourse for.

Second, taking nonbinary identity as seriously as we take binary gender identity may turn out to mean not taking it very seriously at all.  In the case of transition care, both nonbinary people and binary transgender people alike can be denied for procedures deemed cosmetic because they are not covered for cisgender people.  And more broadly, viewing gender as though the harm is classification instead of subordination may make it more difficult for people whose dignity turns on their identities being recognized to make forward progress.

Pronouns and a Hostile Work Environment

The flaws of the assimilationist approach are most obvious in Clarke’s discussion of the use of gender-neutral pronouns and how harassment law might be a potential recourse for nonbinary people who are misgendered.  She notes that “the law should recognize nonbinary gender identities,” and that whether harassment law applies depends on the circumstances, but it would not reach “accidental” or “isolated” misgendering.  Of course, she would prefer said misgendering not happen (as would most nonbinary people), but she is careful to note that it would not rise to the level of actionable under sexual harassment law unless it was systemic or created a hostile environment.

This may reassure some readers, but ultimately, this framing will undermine the cause of nonbinary inclusion.

Clarke seems to work from the assumption that the status quo is not necessarily actionable and something beyond run-of-the-mill misgendering is needed for a hostile work environment claim. But the way the gender binary is enforced in the daily lives of nonbinary people in the United States already is systemic and objectively hostile.  Clarke’s examples very much frame nonbinary exclusion through the lens of a perpetrator perspective (named by Alan Freeman, adapted by Dean Spade), assuming that but for visible discrimination, workplaces are nonbinary friendly.

In reality, few workplaces actually systemically eliminate the requirement of adhering to binary gender.  Even the most liberal of workplaces, where there is a facial commitment to nonbinary rights, often require binary gender identity information for things like healthcare or HR paperwork.  Workplace materials often refer to “both genders,” dead names (old names that people no longer use) show up without warning, and gender neutral restrooms are inconvenient, if they are even available.  So if a nonbinary person is misgendered at work, even isolatedly or accidentally, it is almost undoubtedly part of a pattern of prohibited gender-identity or sex-based harassment.

The binary gender system itself creates this pattern of prohibited gender-identity based discrimination.  It is the litany of everyday gatekeepers and exclusions that wreak havoc upon the mental health of nonbinary people, reminding them in a thousand different ways, big and small, that they do not belong.  Given this, it seems impossible that a nonbinary claimant, even one who is only “isolatedly” misgendered, would not be able to show that such behavior was part of a pattern of gender-based discrimination.

Clarke’s imagined interlocutor would then point out that harassment must be objectively hostile, not just subjectively offensive.  That is, the reasonable person must agree that the conduct creates an environment that they would find hostile or abusive.  And Clarke seems certain that said reasonable person would not find isolated misgendering hostile. But what gender is the reasonable person?  For a while, some jurisdictions had adopted a reasonable woman standard for harassment based on the finding that women and men held systemically different views on what constituted severe or pervasive behavior.  Through a similar line of reasoning, if courts took to viewing conduct through the lens of a reasonable nonbinary person, they might discover that failure to take more proactive steps to gender people correctly (i.e. reading pronoun pins or nametags) constitutes hostile behavior to nonbinary people.  By imagining the objective standard as a cis, binary person, Clarke forecloses the very question of what would constitute taking nonbinary identity seriously.

It seems as though Clarke is concerned about backlash to the idea that nonbinary people should be able to enforce their pronouns by fiat.  She seems especially solicitous of those who are concerned that they may have to refer to nonbinary people by their preferred pronouns.  Clarke does offer, as an alternative, that “[t]hose who object to gender-neutral pronouns may use proper names to refer to everyone, as the district court ultimately did in one of its Zzyym opinions.” (Zzyym is an intersex and nonbinary plaintiff suing the Department of State for a nonbinary designation on their passport.)  But the court in Zzyym did not use proper names to refer to everyone. It used proper names to refer to Dana Zzyym.  In practice, this kind of refusal to use someone’s pronouns is noticeable and othering. Imagine that you have a colleague who refers to everyone else using their chosen pronouns, except for you, because you are nonbinary.  You are singled out, treated differently than everyone else in your office.  It seems like exactly the sort of thing that should lead to a hostile environment claim.  But under Clarke’s argument, it seems like more would be necessary.

Clarke does not seem to consider that a reasonable nonbinary person might disagree with her conclusion that “accidental misgendering” or repeated referral by proper name would not create a hostile work environment when combined with the general social enforcement of the gender binary.  Perhaps the harmful systemic effects of the gender binary are not obvious to Clarke because they are outside of her experience.  The gender binary is the water in which we all swim.  To imagine it as something one drowns in is difficult for those who float on top of it.

It’s also possible that Clarke did not get significant input from nonbinary people on how her proposals might affect them.  Like most legal scholarship, Clarke’s work primarily engages with secondary sources and interviews conducted by others, meaning that she does not directly cite to conversations with nonbinary people about her suggestions.  But for whatever reason, in the effort to convince her audience that nonbinary inclusion is no big deal and can be done without any special solicitude, Clarke erases the concerns of the nonbinary people she claims to center.

In Its Majestic Equality

Does it count as the law taking nonbinary people seriously if the recourse that the law currently provides is inadequate for binary transgender folks and nonbinary folks alike?

In her section on healthcare, Clarke notes that “health care providers should affirmatively accommodate nonbinary patients and insurers should cover medically necessary care” but goes on to point out that even under the 2016 Affordable Care Act (ACA), this does not require health insurance companies to cover treatment for nonbinary people that they would not cover for people who are not seeking transition-related care.  Clarke’s example is telling: she notes that if a health plan never covers hair removal, it would not have to cover hair removal for nonbinary people as part of treatment for dysphoria.  The section ends with the law professor equivalent of a shrug—nonbinary people and trans people have the same problems.

Integration in this case may not conflict with an existing interest in gender or sex classification, but it is inadequate.  Transition-related care and treatment for dysphoria are not table stakes, and insurance coverage can be one of the only ways that certain dysphoria-reducing care can be made accessible.  Even under the current regime, where the ACA has made it easier for people to access transition care, many trans and nonbinary people pay out of pocket for surgery.  And even when surgery is covered, transgender people who need surgery end up paying cosmetic fees, or going to providers who do not take their insurance but specialize in particular forms of care that might be the best fit for their bodies or reduction of dysphoria.

Is this what it means for nonbinary people’s needs to be addressed by existing law?  However uncomfortable she may be with the ACA’s lack of coverage, Clarke ignores that assimilating nonbinary people into a medical system designed for people with binary gender does not meet their needs.  Although many nonbinary people do not want or need explicitly transition-related healthcare, all nonbinary people should have access to it.  The categorical lack of coverage may affect binary transgender people, but nonbinary people have wide variance in their transition needs, leading to the increased likelihood that they may need transition-related care that falls outside things traditionally covered by insurance.

Treating people with nonbinary gender identities as full participants in social, economic and political life means taking their needs seriously when they diverge from those of cis people, not just when they match.  “Equal” provision of treatments to all seems inadequate to address the needs of some nonbinary people.  But Clarke’s thesis prevents her from going the step further to focus on how the status quo is inadequate and suggesting changes.

Towards Gender Liberation, Not Just Equality

Clarke’s proposals have echoes of “marriage equality” and are susceptible to a similar critique.  They adapt the system just enough so that the most privileged of the marginalized group will be allowed in, granting status and privileges, but they will not fundamentally reform the underlying system, or account for the needs of those in the intersections of multiple marginalized identities.  The solutions she proposes represent formal equality at best, not equity or liberation.

This problem is not unique to Clarke. In a variety of areas of anti-discrimination law, courts and scholars have said the harm that should be remedied is classification, not subordination.  Under this theory the act of noticing the protected category is discriminatory, not the systemic oppression or inequality that leads to people in a particular protected category being treated as lesser.  This approach has led to the counter-intuitive result that the Equal Protection clause may prohibit efforts to remedy systemic discrimination.  Critical race scholars, white feminists, and black feminists have long critiqued this approach for its failure to deal with systems of inequality.

Admittedly, it is ironic to argue against an anti-classification approach towards nonbinary identity, given many nonbinary people’s aversion to categories and labels.  But such approaches always run the risk of assuming that the harm to a subordinated group is the lack of access to rights, rather than the fact that the group is discriminated against such that those rights have to be fought for.  Perhaps arguing that recognizing nonbinary people’s rights is ultimately palliative unless the gender binary is dismantled is too much of a moral claim.  It certainly is harder to make while maintaining the existing system.

By favoring the practical case over the moral one, Clarke conceptualizes the interests to be considered with regards to how to resolve claims as those of cis people, ensuring they still function as the gatekeepers that determine whether nonbinary identities are serious enough.  At a moment where nonbinary identities are gaining mainstream attention and progress feels closer than ever before, an incremental approach that reinscribes gatekeepers should not be our opening offer.

Moreover, there’s something disquieting that a piece that claims to introduce the reader to nonbinary lives also seems to indicate that we can be too difficult to be worth including—and that the arguments on the other side, the interests that would allow the binary to remain exclusive, could be worth it.  It seems as though we are again forced to ask, to beg, for access to what everyone else already has, rather than eliminating the locked doors in the way.