There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the cornerstone legal presumptions associated with science, sex, and gender. As many people, along with multiple courts, colleges, and workplaces, now recognize, the binary presumptions of male and female identity are largely outdated and often fail to capture the complexity of identity and expression. The question for legal scholars and legislatures is how the law can and should respond to this complexity.

Taking this observation as an invitation, this Article provides a different way to conceive of the relationship between sex and gender that might provide another vantage point in demonstrating the limits of our jurisprudence. Drawing on Professor Cheryl Harris’s groundbreaking article exploring whiteness as property published in the Harvard Law Review over twenty years ago, this Article argues that, in order to understand the relationship between sex and gender, it might be helpful to explore a parallel type of affiliation between identity, property, and intellectual property. My thesis is that sex is to gender as property is to intellectual property. Unpacking this further, this Article argues that, instead of thinking of sex as a construct of biology alone, it might be helpful for us to reconceptualize state-assigned sex along the lines of tangible property—bordered, seemingly fixed, rivalrous, and premised on a juridical presumption of scarcity in terms of its rigid polarities of male and female. In contrast, regarding gender, I argue that thinking through gender as a performance, if taken seriously, also suggests that gender is more akin to intellectual property—permeable, malleable, unfixed, nonrivalrous—and ultimately deeply nonexclusive. Normatively, I argue that a model of gender pluralism is an important framework with which to examine the importance of gender diversity and fluidity.


There is a fundamental revolution under way regarding the relationship between gender and the state, both domestically and internationally. Across the world, the rise and visibility of transgender rights movements have forced a persistent rethinking of the legal presumptions associated with science, sex, and gender. For years, the law has largely maintained a steadfast commitment to the idea that one’s assigned sex—referring to the binary polarities of male and female—operated as a relatively stable fixture, capable of being mapped onto one’s gender identity and self-perception. This expectation of stability translated into a basic presumption within law and policy that gender identity and assigned sex almost always align with one another—that the binary formation of sex operated as a basic organizing principle to formalize and reify gender expression, sexuality, and so forth. In turn, antidiscrimination jurisprudence reflects these principles and, with the exception of a minority of cases, has historically labored under the perception that gender identity and assigned sex rarely conflict with one another. The myriad of legal regulations that deploy sex classifications rest on this presumption; everything from the procurement of passports to access to social services to the gathering of data relies on the presumption of the binary, fixed nature of assigned sex.

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. 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. 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 . . . 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. 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.

Consider an example. 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. 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, Gender Trouble, 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. Even within public culture, there has been a huge shift in gender’s terrain. The same week that the Department of Justice reversed the guidelines on Title IX, for example, French Vogue featured a transgender model on its cover.28

Interestingly, despite these accounts, law—one of the principal devices of social change—has only just begun to grapple with these insights regarding the construction of identity.29 The end result is the development of two relatively vast stand-alone regimes in silent conflict with one another, one that recognizes the constructed dimensions of identity, and another that largely requires the existence of these identities—both virtual and real—for its regulatory functions to function successfully.

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. Yet as the transgender rights movement takes firm hold, it exposes a variety of limitations to antidiscrimination jurisprudence, particularly the limits of the legal categories that animate sex and gender. For this reason, any account of gender identity must embrace the importance of not viewing transgender individuals as merely a “means to an end or an intellectual curiosity,” as Professor Paisley Currah, Professor Richard Juang, and Shannon Minter have noted; it must focus on the importance of ensuring gender self-determination as a matter of well-being in the law, rather than as an intellectual exercise.30

Toward that end, this Article attempts both to provide a theoretical starting point to reanalyze the relationship between sex and gender, and to offer another vantage point in dem­onstrating the limits of our jurisprudence. In this Article, I seek to introduce a new layer to the dynamic between gender and sex by suggesting the need for a reconceptualization of gender, both descriptively and normatively, through the lens of property and intellectual property theory. My thesis is that sex is to gender as property is to intellectual property. Unpacking this further, instead of thinking of sex as a construct of biology or medicalization alone, this Article argues that it might be helpful for us to reconceptualize the assignation of sex as it functions in the law along the lines of tangible property—something that is bordered, seemingly fixed, rivalrous, and premised on a juridical presumption of scarcity in terms of its rigid polarities of male and female. In this way, the Article draws on Professor Cheryl Harris’s important work on race and property31 as well as other scholarship on antiessentialism and antidiscrimination. But it also draws parallels to the numerus clausus principle that has foregrounded property law’s commitment to established categories of entitlement; this analogy, I argue, is particularly salient because it demonstrates how the law’s commitment to standardization has essentially foreclosed alternative modes of identification.32

In contrast, regarding gender, I argue that thinking through gender as a performance, if taken seriously, also suggests that gender functions in the law more akin to intellectual property—a creation which is by its nature intangible, permeable, malleable, nonrivalrous, and, ultimately, deeply nonexclusive. An account of gender performance suggests that gender is not something tangible, or fixed, but constitutes a sort of expression that is intangible, borderless, and suffused through cultural regulation and social norms rather than “biological” imperative. As I argue, this account moves gender away from a set of social constructions—and instead recharacterizes its function in the law as a series of intangible possibilities of expression, an essence that is not natural or fixed, but instead resembles the mutable, highly expressive, and transitory qualities of intellectual property.

If we reconceptualize the relationship between gender and sex and the law, I argue, we map an entirely new host of normative possibilities for gender relations to operate outside the boundaries of law’s fixedness on identity. This leads us to a broader set of possibilities regarding the regulation and policy of gender altogether.

This Article is constructed in three parts. Part I explores the parallels between the function of property and state-assigned sex, arguing that the regulation of sex can be analogized to a number of property law–like formations, paralleling the numerus clausus principle. I also explore early transgender jurisprudence, showing how the polarities of male and female operated to seriously disadvantage broader approaches to gender regulation. In Part II, drawing on Butler, I argue that gender, like intellectual property, carries an expressive nature that is also entirely nonrivalrous in the sense that one can occupy the spheres of both male and female, masculine and feminine, or neither. I also show how the law has slowly shifted, in some ways, to embrace this vision through its jurisprudence on gender nonconforming behavior in the workplace. However, despite these changes, there are a number of areas of transgender equality that are deeply in need of a shift—particularly the case law regarding bathroom facilities, grooming codes, and sex-segregated facilities. In each of these areas, I argue that the law’s approach to gender discrimination has severely limited the possibilities for transgender equality.

Part III offers a normative framework that focuses on gender pluralism in order to reexamine the regulation of gender and state-assigned sex. Returning to the parallels between property and identity, this Part offers a metaphorical and doctrinal reconceptualization of gender regulation that enables individuals to achieve a stronger entitlement to gender self-determination.33

  • 1. In the introduction to their pathbreaking volume published in 2006, Transgender Rights, the authors observed that more than sixty colleges and universities now include gender identity as part of their nondiscrimination policies. Paisley Currah, Richard M. Juang, and Shannon Price Minter, Introduction, in Paisley Currah, Richard M. Juang, and Shannon Price Minter, eds, Transgender Rights xiii, xiii (Minnesota 2006). Today, eleven years later, that number has grown to over 999 colleges and universities that have nondiscrimination policies that include gender identity or gender expression, including those that forbid gender discrimination. See Colleges and Universities with Nondiscrimination Policies That Include Gender Identity/Expression (Campus Pride), archived at
  • 2. See Daniel Funke, Facebook Adds New Gender Identification Options, Gender Rights Continue to Grow (Red & Black, Feb 24, 2014), archived at
  • 3. New York City issued the first birth certificate with intersex in the gender field in December 2016 after receiving a court order from a state court. See Sam Levin, First US Person to Have “Intersex” on Birth Certificate: “There’s Power in Knowing Who You Are” (The Guardian, Jan 11, 2017), archived at The California legislature is currently considering legislation to allow the state to issue birth certificates, drivers’ licenses, and court orders specifying a “nonbinary” gender. California Senate SB-179, California State Senate, 2017–2018 Regular Sess (Jan 24, 2017), archived at See also CA Court Issues Nonbinary Gender Change to Transgender Law Center Client (Transgender Law Center, Feb 10, 2017), archived at
  • 4. Examples of such nations include India, Nepal, Australia, New Zealand, and Germany, and also Argentina, which guarantees fair access to transitional health care. See Valentine Pasquesoone, 7 Countries Giving Transgender People Fundamental Rights the U.S. Still Won’t (Identities.Mic, Apr 9, 2014), archived at; English Translation of Argentina’s Gender Identity Law (Global Action for Trans Equality), archived at Note, however, Professor Susan Stryker’s trenchant observation that “‘[t]ransgender’ is, without a doubt, a category of First World origin that is currently being exported for Third World consumption.” Susan Stryker, (De)Subjugated Knowledges: An Introduction to Transgender Studies, in Susan Stryker and Stephen Whittle, eds, The Transgender Studies Reader 1, 14 (Routledge 2006). See also Sonia Katyal, Exporting Identity, 14 Yale J L & Feminism 97, 133–48 (2002).
  • 5. See Matt Kane, Transgender Characters That Changed Film and Television #TransWK (GLAAD, Nov 12, 2013), archived at; Jacob Bernstein, In Their Own Terms: The Growing Transgender Presence in Pop Culture (NY Times, Mar 12, 2014), online at (visited Nov 6, 2016) (Perma archive unavailable).
  • 6. See Shawn Thomas Meerkamper, Note, Contesting Sex Classification: The Need for Genderqueers as a Cognizable Class, 12 Dukeminier Awards J *2–11 (2013), archived at; Lori Duron, The New Gender Binary (Huffington Post, Feb 21, 2016), archived at (describing the author’s son, who displays typically feminine characteristics but prefers male pronouns and identifies not as transgender but instead as gender nonconforming).
  • 7. See Jessica Bennett, She? Ze? They? What’s in a Gender Pronoun (NY Times, Jan 30, 2016), online at (visited Oct 26, 2016) (Perma archive unavailable) (noting developments in gender pronouns on college campuses and in the wider culture in response to changed understandings of gender).
  • 8. See Amy Rappole, Comment, Trans People and Legal Recognition: What the U.S. Federal Government Can Learn from Foreign Nations, 30 Md J Intl L 191, 214 (2015).
  • 9. Brynn Tannehill, Why Arizona’s Bathroom Bill Is Unconstitutional (Huffington Post, Feb 2, 2016), archived at
  • 10. Arizona Panel OKs Transgender Bathroom Bill That Lets Businesses Bar Transgendered Customers from Using the Bathroom of Their Choice (Daily News, Mar 28, 2013), online at (visited Oct 26, 2016) (Perma archive unavailable).
  • 11. See Joellen Kralik, “Bathroom Bill” Legislation (National Conference of State Legislatures, Feb 23, 2017), archived at
  • 12. Suzanne E. Eckes and Colleen E. Chesnut, Transgender Students and Access to Facilities, 321 Educ L Rptr 1, 5–6 (2015) (describing these and other bills).
  • 13. North Carolina House Bill 2 (HB2), 2016 NC Sess Laws 3.
  • 14. Harold Lloyd, McCrory’s House Bill 2: A Brief Outline of Its Five “Parts” Huffington Post, May 16, 2016), archived at
  • 15. Cristian Farias, Texas, 12 Other States Push to Block Feds from Enforcing Trans Bathroom Guidance (Huffington Post, July 6, 2016), archived at; Mark Reagan, Texas Federal Judge Issues Nationwide Injunction against School Protections for Transgender Students (San Antonio Current, Aug 22, 2016), archived at
  • 16. See, for example, Catherine E. Lhamon and Vanita Gupta, Dear Colleague Letter on Transgender Students *2 (Department of Justice and Department of Education, May 13, 2016), archived at (“The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”). See also Texas v United States, 2016 WL 4426495, *1 n 4 (ND Tex).
  • 17. Texas, 2016 WL 4426495 at *14.
  • 18. Gloucester County School Board v G.G., 136 S Ct 2442, 2442 (2016) (granting a stay on the lower court’s ruling); Gloucester County School Board v G.G., 137 S Ct 369, 369 (2016) (granting certiorari). See also Caitlin Emma and Josh Gerstein, Supreme Court Blocks Ruling That Let Transgender Va. Student Use Boys’ Bathroom (Politico, Aug 3, 2016), archived at
  • 19. Jeremy W. Peters, Jo Becker, and Julie Hirschfeld Davis, Trump Rescinds Rules on Bathrooms for Transgender Students (NY Times, Feb 22, 2017), online at (visited Mar 4, 2017) (Perma archive unavailable); Sandra Battle and T.E. Wheeler II, Dear Colleague Letter (Department of Justice and Department of Education, Feb 22, 2017), archived at See also Statement by Attorney General Jeff Sessions on the Withdrawal of Title IX Guidance (Department of Justice, Feb 22, 2017), archived at
  • 20. Damien Cave, New York Plans to Make Gender Personal Choice (NY Times, Nov 7, 2006), online at (visited Oct 27, 2016) (Perma archive unavailable).
  • 21. Id.
  • 22. Robin Finn, Battling for One’s True Sexual Identity (NY Times, Nov 10, 2006), online at (visited Jan 15, 2017) (Perma archive unavailable). See also generally Paisley Currah and Lisa Jean Moore, “We Won’t Know Who You Are”: Contesting Sex Designations in New York City Birth Certificates, 24 Hypatia 113 (Summer 2009) (detailing the historical background leading up to the 2006 change as well as the response by media and community members).
  • 23. Cave, New York Plans to Make Gender Personal Choice (cited in note 20) (noting that the law would accommodate some who “may not feel the need to undergo the procedure and are simply defining themselves as members of the opposite sex”).
  • 24. Russell Berman, Change of Course on Transgender Identification (New York Sun, Dec 6, 2006), online at (visited Jan 15, 2017) (Perma archive unavailable). See also Damien Cave, City Drops Plan to Change Definition of Gender (NY Times, Dec 6, 2006), online at (visited Oct 27, 2016) (Perma archive unavailable); Kenji Yoshino, Sex and the City (Slate, Dec 11, 2006), archived at Later, in 2011, a series of lawsuits were filed by the Transgender Legal Defense and Education Fund on behalf of a group of individuals who wished to change the gender on their birth certificates without undergoing surgery. See John Eligon, Suits Dispute City’s Rule on Recording Sex Changes (NY Times, Mar 22, 2011), online at (visited Oct 27, 2016) (Perma archive unavailable).
  • 25. Curtis M. Wong, New York’s Transgender Residents Will Now Be Able to Change Birth Certificate Sex Designation without Surgery (Huffington Post, Feb 2, 2016), archived at
  • 26. For an excellent summary of this literature, see generally Stryker, (De)Subjugated Knowledges (cited in note 4). See also Margot Adler, Young People Push Back against Gender Categories (NPR, July 16, 2013), online at (visited Oct 27, 2016) (Perma archive unavailable).
  • 27. See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity 8–17, 30–34 (Routledge Classics 2006).
  • 28. Dana Thomas, French Vogue’s March Cover Features a Transgender Model (NY Times, Mar 1, 2017), online at (visited Mar 4, 2017) (Perma archive unavailable). Additionally, the Boy Scouts now allow any applicant who identifies as a boy to join their ranks. BSA Addresses Gender Identity (Boy Scouts of America, Jan 30, 2017), archived at As another example, a toy company in upstate New York recently unveiled plans to market a transgender doll. Jacey Fortin, Transgender Doll Based on Jazz Jennings to Debut in New York (NY Times, Feb 17, 2017), online at
    -jennings.html (visited Mar 4, 2017) (Perma archive unavailable).
  • 29. There are, of course, many exceptions within legal academia, as opposed to legal doctrine. See generally, for example, Katherine M. Franke, What’s Wrong with Sexual Harassment, 49 Stan L Rev 691 (1997); Kathryn Abrams, Performing Interdependence: Judith Butler and Sunaura Taylor in The Examined Life, 21.2 Colum J Gender & L 72 (2012); Nan D. Hunter, Expressive Identity: Recuperating Dissent for Equality, 35 Harv CR–CL L Rev 1 (2000); Note, Patriarchy Is Such a Drag: The Strategic Possibilities of a Postmodern Account of Gender, 108 Harv L Rev 1973 (1995); Ariela Gross, Beyond Black and White: Cultural Approaches to Race and Slavery, 101 Colum L Rev 640 (2001); Kenji Yoshino, Covering, 111 Yale L J 769 (2002); Devon W. Carbado and Mitu Gulati, Book Review, The Law and Economics of Critical Race Theory, 112 Yale L J 1757 (2003).
  • 30. Currah, Juang, and Minter, Introduction at xxii (cited in note 1). This admonition is especially pertinent to cisgender authors, like myself, writing on transgender issues. See Julia Serrano, Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity 209–12 (Seal 2007); Jacob Hale, Suggested Rules for Non-transsexuals Writing about Transsexuals, Transsexuality, Transsexualism, or Trans___. (Nov 18, 2009), archived at (observing the importance of interrogating one’s subject position and goals in writing about the trans community); M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights, 39 Vt L Rev 943, 947 (2015) (“For transgender people to be recognized as full human beings under the law, the legal system must make room for the existence of transgender people—not as boundary-crossers but as people claiming their birthright as part of a natural variation of human sexual development.”).
  • 31. See generally Cheryl I. Harris, Whiteness as Property, 106 Harv L Rev 1707 (1993).
  • 32. See Thomas W. Merrill and Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L J 1, 9–11, 20–23 (2000).
  • 33. For an insightful treatment of the related concept of gender autonomy, see generally Jillian Todd Weiss, The Gender Caste System: Identity, Privacy, and Heteronormativity, 10 Tulane J L & Sexuality 123 (2001); Jillian T. Weiss, Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas, 5 J Race, Gender & Ethnicity 2 (Feb 2010).