Unequal Protection for Sex and Gender Nonconformists

Abstract

The days when only women could be flight attendants and only men could be pilots are a distant memory. The Equal Protection Clause of the U.S. Constitution and hundreds of federal, state, and local constitutional provisions and statutes prohibit almost all facially discriminatory regulations based on a person's sex. The original goal of this legislation was to eliminate societal barriers to equal opportunities for men and women. When legislators adopted these statutes, however, they assumed that sex was binary and easy to establish. Therefore, they never felt the need to define the terms "male," "female," "sex," and "gender."

This failure is especially problematic for people who do not fall neatly into the male/female binary norm. Millions of people have an intersex condition or are transgender. Both groups suffer societal discrimination in a number of areas. First, people with an intersex condition and transgender people may find that government created tests for determining their legal sex often rely on irrational contradictory factors. Second, transgender people and people with intersex traits may suffer discrimination in a variety of settings including employment, housing, and the provision of health care.

This chapter examines whether the government violates the Equal Protection Clause in two contexts: (1) when the government establishes an illogical "sex" test for determining who qualifies as a male or female, and (2) when the government discriminates against transgender people or people with an intersex condition by subjecting them to differential treatment.

Note: This abstract is posted here by permission of the publisher, Ashgate.

Keywords: constitutional law, equal protection, discrimination, sex, gender, trans, transgender, intersex, gender identity, sexual orientation, sexual identity, LGBT, restroom, prisoner housing, sex stereotyping, employment discrimination

JEL Classification: K19