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In New Jersey, Governor Chris Christie vetoed a bill that would have removed a surgical requirement for changing one’s gender assignment on a birth certificate, arguing that it could lead to fraud and abuse.8 At one point, Arizona’s House Appropriations Committee approved an amended bill that would make it illegal for local governments to pass laws or regulations that would have ensured access to public “privacy areas,” that is, restrooms, based on “gender identity or expression.”9 The original bill actually would have made it a crime for transgender individuals to use a bathroom other than one specified for use by people of the sex they were assigned at birth.10 As of early 2017, a total of fourteen states—Alabama, Arkansas, Illinois, Kansas, Kentucky, Minnesota, Mississippi, Missouri, New York, Oklahoma, South Carolina, Tennessee, Texas, and Wyoming—had considered actions that essentially sought to ban transgender individuals from using bathrooms consistent with their gender identity.11 In Kentucky, a proposed bill would permit students to file lawsuits if they see transgender students using school restroom and locker facilities that do not conform to their “biological sex”; another bill in Texas would authorize payments to students who prove “mental anguish” upon finding someone not of the same “biological sex” in a school restroom facility.12 And in North Carolina, the Public Facilities Privacy & Security Act,13 otherwise known as HB2, essentially requires individuals to use restrooms that are consistent with the sex on their birth certificates, thereby deleteriously affecting transgender individuals whose self-identities might conflict with the sex they are assigned at birth.14 These battles are being played out in the Supreme Court as well as the White House. meant the biological and anatomical differences between male and female students as determined at their birth.”17 The Supreme Court also, in another related case, initially granted certiorari in a Fourth Circuit ruling that required a school district to accommodate a transgender student’s request to use a particular bathroom.18 Just before the case was argued, however, the new presidential administration, despite the objections of the new secretary of education, decided to rescind the prior administration’s interpretation of Title IX, leaving transgender students unprotected by the federal interpretation.19 Part of the reason for this trend, I would argue, is attributable to the dearth of empirical and policy research on gender pluralism, including the multiplicity of issues and identities within the transgender community and the impact of our legal system on gender self-determination.In July 2016, a coalition of thirteen states, led by Texas, asked a federal judge to block the enforcement of a set of guidelines issued by the Department of Education and the Department of Justice that would have prevented schools from discriminating against transgender and other gender nonconforming students.15 Despite the guidelines’ definition of “sex” under Title IX, which includes a more capacious view of gender identity,16 a district court concluded that “[i]t cannot be disputed that the plain meaning of the term sex . But part of it is also due to a deeper issue regarding the law’s inability to critically reimagine the regulation of gender in a more capacious manner. In 2006, in a flurry of media attention, New York City’s Board of Health decided to validate what the transgender community had argued for years: that individuals can and should have the right to change the sex on their birth certificates without being required to undergo a particular type of gender reassignment surgery.20 Under the rule change initially explored by the board, individuals would have been able to change the sex on their birth certificates, so long as they provided affidavits from a doctor and a mental health professional outlining the reasons for the change and documenting their intention to live permanently as members of the opposite sex.21 At the time of the announcement, the decision was met with enormous praise from transgender rights advocates, who felt that the proposed rule confirmed the need to correct a disjunction between one’s assigned sex and one’s gender identity without the need for prohibitively expensive (and, at times, medically unsafe) surgery.22 For those who face similar struggles, this right—a right to represent oneself by gender self-determination, rather than by legal prescription—is a right that is at the heart of notions of gender equality.23 Yet, just as public health advocates were nearing victory, the board abruptly abandoned its decision, citing “broader societal implications” and concerns about fraud and abuse.24 It took another eight years (and more than one lawsuit) for New York City to finally adjust its approach to a more inclusive one that did not require proof of surgical treatment.25 As this example illustrates, the laws that regulate gender assignation continually have a disparate impact on the transgender community.Today, these perceptions are increasingly confronted with the reality that the relationship between gender and sex is far more complicated than the law currently recognizes.Our global culture and legal landscape are replete with examples that continually demonstrate the discontinuity of the relationship between gender and sex, calling for a more complex representation of reality.1 In 2014, Facebook decided to offer its users more than fifty terms for gender self-identification, recognizing that many people use a multiplicity of terms other than male or female to describe themselves.2 As of 2017, at least three people in the United States have been able to obtain “nonbinary” or “intersex” as their legally designated gender.3 Indeed, the transgender rights movement is—and has always been—global in scope; many courts, countries, and municipalities throughout the world have faced similar pushes toward pluralism, leading some nations to offer a third category for those who identify as something other than male or female.4 Popular culture, too, has begun to reflect these identities.5 Even before Caitlyn Jenner and Laverne Cox captured the mainstream’s attention with a particular representation of transgender identity, there were rapidly increasing numbers of people who identified as neither male nor female, in addition to agender, bigender, nonbinary, or genderqueer individuals, and those relying upon other categories of gender nonconformity.6 Many view gender as fluid, as transitory, or as something that does not necessarily need to be assigned at all.7 At the same time, in the United States and elsewhere, despite these cultural strides toward greater inclusivity, judges and political leaders continue to display a pervasive confusion regarding transgender equality, at times using the language and history of sex discrimination law and other areas to unwittingly craft one of the most protracted—and ironic—exclusions of transgender individuals from equality-based protections.But there is a deeper irony: at the same time that the law reflects lingering confusion over gender categories, the literature outside the law—and public culture, more generally—has never before reflected such a momentous dismantling of the codes of both sex and gender altogether.26 Drawing from Professor Judith Butler’s seminal work, , today’s scholarly thought critiques both sex and gender as seemingly “necessary” fictions—social constructs that operate to divide, classify, and polarize society into standard, but not always universal, categories.27 In turn, by exploring the external markers of identity, this body of work has also helped to deconstruct the internal aspects of identity.
The result of this confluence of moments inscribes the gender studies movement with a degree of irony: at the very moment at which it has revolutionized academic thought on gender and sexuality, it has never before faced such yawning obstacles within the law’s superlative commitment to categorization.
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