Gender Studies

The Impact of Pregnancy Discrimination on Retirement Benefits: A Present Violation of Title VII or a Claim Belonging to History?

noelottman — Wed, 27 Dec 2017 22:47:48 +0000

The Impact of Pregnancy Discrimination on Retirement Benefits: A Present Violation of Title VII or a Claim Belonging to History?

Shannon Barrows Bjorklund

BA 2004, Barnard College, Columbia University; JD Candidate 2009, The University of Chicago

noelottman Wed, 12/27/2017 - 16:47

December 27, 2017

PDF

Comment

Civil Rights Discrimination Gender Studies Title VII

75.3

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, religion, national origin, or sex. In 1978, Congress extended Title VII’s protection to pregnancy, requiring that employers treat pregnant employees the same as other employees who are similarly able or unable to work. Now, thirty years later, the Pregnancy Discrimination Act of 1978 (PDA) has created a complex, important, and unsettled legal question.

Imagine the following scenario: Anne, an employee of Company X, took pregnancy leave in 1976. According to the company policy at the time, Anne received seniority credit for only the first thirty days of her pregnancy leave, but employees taking temporary disability leave received credit for their entire leave. In 1978, Congress passed the PDA, requiring companies to grant equal benefits for pregnancy leave as for disability leave. Throughout her career, Anne was periodically notified of her accrued seniority credit, which did not include credit for her entire pregnancy leave. In 1995, Company X offered a retirement incentive program, where employees with twenty-five years of seniority credit (as calculated by the previous system) could qualify for early retirement, instead of needing thirty years as required by the regular policy. This retirement incentive program was only available until December 31, 1995. As of December 31, Anne was ten days short of the requirement, but if she had received full credit for her pregnancy leave, Anne would have been able to participate in the program.

Courts are split over whether Anne’s situation gives rise to liability for discrimination. Title VII prohibits employment discrimination on the basis of sex (or pregnancy) but contains an explicit provision partially exempting seniority systems. Under § 703(h), an employer is liable if it uses a seniority system that is facially discriminatory, but is not liable if the seniority system indirectly and unintentionally affects a protected group more harshly. The Ninth Circuit has held that this type of early retirement system is facially discriminatory—and a current violation of Title VII—because it incorporates seniority calculations that do not include full credit for pre-1979 pregnancy leave. The Sixth and Seventh Circuits have held that the retirement system is not a current violation because the new benefits offered are facially neutral, and any challenge to the failure to grant credit is time-barred. The circuit courts’ confusion is spurred in part by two lines of Supreme Court precedent: one holding that each issuance of a paycheck based on a discriminatory system does violate Title VII, and another holding that present effects of past discrimination do not violate Title VII.

Robin West, Jurisprudence and Gender: Defending a Radical Liberalism

noelottman — Wed, 27 Dec 2017 22:27:48 +0000

Robin West, Jurisprudence and Gender: Defending a Radical Liberalism

Martha C. Nussbaum

Ernst Freund Distinguished Service Professor of Law and Ethics, Philosophy Department, Law School, and Divinity School, The University of Chicago

noelottman Wed, 12/27/2017 - 16:27

December 27, 2017

PDF

Essay

Gender Studies Institutional Design

75.3

Robin West’s Jurisprudence and Gender has justly had considerable influence. West argues persuasively that people concerned with achieving sex equality need to do both practical, political work and theoretical, conceptual work. If the concepts and normative theories remain incompletely developed, they will offer defective guidance to practical work. Therefore, “[f]eminism must envision a post-patriarchal world, for without such a vision we have little direction.” This contention is both true and important.

The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement

noelottman — Fri, 22 Dec 2017 00:09:58 +0000

The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement

David Schraub

BA 2008, Carleton College; JD Candidate 2011, The University of Chicago Law School

noelottman Thu, 12/21/2017 - 18:09

December 21, 2017

PDF

Comment

Discrimination Gender Studies Public Choice

77.3

A widely held conception of the federal courts is that they are supposed to protect the politically powerless and vulnerable, particularly from state predations. The famous Footnote Four of United States v Carolene Products Co first established the principle that courts should pay special attention to the claims of “discrete and insular minorities.” This standard has grown to become an important part of the judiciary’s heightened scrutiny analysis—a part that this Comment argues should be largely abandoned. To be sure, the logic is compelling: heightened scrutiny should be accorded only to groups who cannot protect themselves in the political process. Once they begin flexing political muscle, courts ought to step aside and let the democratic system take the reins. But this paradigm leaves many minority groups in a perplexing paradox. Since truly powerless groups do not typically receive judicial protections, a vulnerable social group must show political power in order to gain the attention of the courts. But, by showing this power, vulnerable groups simultaneously give the judiciary a doctrinal excuse to reject their claims.

Online

Tradition as Justification: The Case of Opposite-Sex Marriage

noelottman — Thu, 21 Dec 2017 01:23:09 +0000

Tradition as Justification: The Case of Opposite-Sex Marriage

Kim Forde-Mazrui

Professor of Law, University of Virginia School of Law

I am grateful for the comments I received on earlier drafts from Richard Banks, Rebecca Brown, Janet Giele, Phoebe Haddon, Michael Helfand, Fred Schauer, and Molly Walker. I also received helpful feedback from the participants in workshops at Duke Law School, the University of Minnesota Law School, Stanford Law School, the University of Virginia School of Law, and Wake Forest School of Law, as well as from attendees at my keynote speech at the Lavender Law Conference in San Francisco in September 2008, and from participants in the MidAtlantic People of Color Legal Scholarship Conference at Temple University James E. Beasley School of Law in January 2009 and the Third National People of Color Legal Scholarship Conference at Seton Hall University School of Law in September 2010. Student workshops at the University of Virginia and at Fairhaven College, Western Washington University, also provided useful feedback. The University of Virginia School of Law reference librarians, including Ben Doherty and Alison White, provided superb assistance. A special thanks to Jared Campbell, Evan Didier, Sarah Fritsch, Sarah Johns, Tim Lovelace, Chris Mincher, and Hadi Sedigh for their diligent research assistance and very helpful discussions. I welcome comments at kimfm@virginia.edu.

noelottman Wed, 12/20/2017 - 19:23

December 20, 2017

PDF

Article

Children and Families Constitutional Law Discrimination Gender Studies

78.1

A central point of contention in the national debate over same-sex marriage is the importance of preserving tradition. That debate also features prominently in constitutional litigation over bans on same-sex marriage. Opponents of such bans argue that tradition is an illegitimate justification for the bans, while defenders of traditional marriage contend that tradition is not only a legitimate justification, but is in fact sufficiently important to withstand heightened judicial scrutiny.

This Article assesses tradition as a justification for laws challenged on equal protection grounds, with a focus on laws that limit marriage to opposite-sex couples. The Article makes two main points. First, it concludes that a state’s interest in preserving tradition— including the tradition of opposite-sex marriage—is probably legally sufficient to survive the most deferential standard of rational basis review under the Equal Protection Clause.

Second, this Article argues that courts should nonetheless view tradition with skepticism when it is offered to justify laws challenged on equal protection grounds. Tradition exhibits certain features, or “indicia of suspectness,” that counsel skepticism. Those features include tradition’s speculative utility, rhetorical appeal, and manipulability. Additionally, tradition is especially suspicious when offered to justify laws that burden a group toward whom there has been a cultural shift from widespread societal disapproval in the past to substantial public tolerance today. In such circumstances, tradition may serve as a convenient justification for people who are actually motivated by now-repudiated attitudes toward the burdened group. For bans on same-sex marriage, this Article contends, courts should invalidate such laws unless, after careful scrutiny, courts are satisfied that the laws are motivated by legitimate, non-tradition-based interests.

The Numerus Clausus of Sex

jpmcadams — Wed, 10 May 2017 01:10:00 +0000

The Numerus Clausus of Sex

Sonia K. Katyal

Chancellor’s Professor of Law, University of California, Berkeley, School of Law

The author wishes to thank the faculties of the University of California, Berkeley, School of Law; Boston University; the Williams Institute at the UCLA School of Law; Rutgers Law School; Fordham University School of Law; Seton Hall University School of Law; Maurice A. Deane School of Law at Hofstra University; the University of Washington School of Law; and the University of Miami Law School for helpful conversation. I am especially indebted to Kathryn Abrams, Kenny Alston, Sergio Campos, Mary Anne Case, Paisley Currah, Katie Eyer, Sheila Foster, Katherine Franke, Mary Anne Franks, Andrew Gilden, Zil Goldstein, Gayatri Gopinath, Joanna Grossman, Bruce Hay, Tracy Higgins, Clare Huntington, Molly Van Houweling, Neal Katyal, Alexander Lee, Linda McClain, Melissa Murray, Russell Robinson, Juana Maria Rodriguez, Darren Rosenblum, Simone Ross, Dean Spade, Edward Stein, Leti Volpp, and the editors of The University of Chicago Law Review for their insights and suggestions. I am also particularly grateful for the incredible research assistance of Juli Adhikari, Joseph Galvin, Andrea Hall, Kelly Herbert, Nicole Rivera, and Catherine Song.

jpmcadams Tue, 05/09/2017 - 20:10

May 09, 2017

PDF

I. Sex as Scarcity

Typically, the numerus clausus principle represents a maxim that the law will allow the creation of only a certain number of property formations. It is the most powerful organizing principle in property law to date, and I would argue that it also illuminates both the limits and the possibilities behind identity categories. In the law of tangible property, the numerus clausus principle dictates that there are only four different categories of estates, and those estates must serve as the basic building blocks for future transactions.34 It serves as one of the most foundational and basic propositions in property law because it forms the very basis for classifying legal entitlements—and disallowing any deviations. As one court put it, “‘incidents of a novel kind,’ cannot ‘be devised and attached to property at the fancy or caprice of an[ ] owner.’”35 The numerus clausus principle has not only framed real property estates—as Professors Thomas Merrill and Henry Smith point out, the same idea has served as a foundation in other areas of property, including landlord-tenant law, intellectual property, and the law’s system of easements and servitudes.36 While it is possible for skillful lawyers to design transactions to accomplish their client’s goals, the numerus clausus principle militates against challenging or changing the basic categories of property entitlements.37

The same observation might also be made of gender regulation, which assigns individuals to either male or female categories but rarely explores the levels of privilege inherent in either categorization. Back in 1993, Professor Harris punctured the worlds of property theory and antidiscrimination when she published an article in the Harvard Law Review titled Whiteness as Property.38 In that article, Harris argued powerfully that the system of slavery facilitated the merging of white identity and property, investing whiteness with a kind of proprietary value. “Whiteness has functioned as self-identity in the domain of the intrinsic, personal, and psychological,” she wrote, “as reputation in the interstices between internal and external identity; and, as property[,] . . . moving whiteness from privileged identity to a vested interest.”39 She argued that not only has the law accorded white individuals the same privileges that are extended to other holders of property, but whiteness has operated historically as a form of “status property,” a type of reputational property that is based on racial hierarchy, vesting some with rights and others without.40

Drawing on foundational cases like Plessy v Ferguson,41 Brown v Board of Education of Topeka,42 and others, Harris also notably argued that whiteness has operated instrumentally as property by excluding all others from certain privileges, like the right to vote, travel, attain an education, obtain work, and occupy a higher social status.43 In the modern era, Harris applied her theories to affirmative action and showed that, even after the civil rights movement, the metric of constitutional injury is still measured by the injury to whites’ settled expectations of admission (rather than its effect on minority admissions), further amplifying the privileged, proprietary status of whiteness.44

At the time of Harris’s publication, it was the first of its kind to link conceptions of property theory—and its concomitant rights of exclusion, alienation, use, and enjoyment—to human identity. “As whiteness is simultaneously an aspect of identity and a property interest, it is something that can both be experienced and deployed as a resource,” Harris wrote.45 “Whiteness can move from being a passive characteristic as an aspect of identity to an active entity that—like other types of property—is used to . . . exercise power.”46

In this Part, I draw on a similar analogy operating within the confines of the sex/gender system.47 A basic system of property rights has three main components. The first component is the creation of a basic legal status, one that usually provides that an asset or entitlement “belongs” to an owner.48 The second component involves the legal system’s definition of the status in question—that is, its design of a constellation of powers and privileges associated with the performance of that status.49 And the third aspect of a system of property is that it attaches consequences to those who violate property rules, like the punishment of trespassers.50

The same might also be true of our system of sex and gender classifications. The law “sexes” individuals upon birth, according them a certain social status and offering each a set of privileges and entitlements that vests upon the classification. As many scholars have already shown in antidiscrimination jurisprudence, society often reflects a hierarchical distinction between males and females, underscoring a kind of “male privilege” that closely parallels the proprietary white privilege that Harris wrote about.51 But there is also another kind of privilege as well, a “cis privilege” that extends to those whose gender identities or performances match the sex they are assigned at birth.52 The law assigns sex so that it functions within the law as a type of property, offering a particular sex classification to individuals whose features correlate to a constellation of characteristics (gonadal, anatomical, chromosomal) that people generally identify as male or female.53 Normally, this approach to sex (what I call the “morphological model of sex”) is rarely questioned or challenged within the law, and as a result it has taken on significance as a central organizing principle.54

But the morphological model, I argue, also suffers from severe limitations. Although most individuals presume that this model relies on an objective set of criteria, many scholars and scientists have shown that a determination of sex can be far more complicated than the law readily suggests. Not only do countless individuals possess characteristics associated with both sexes, but also many individuals transition from one sex to another, and still other individuals challenge the binary system altogether. The morphological model, however, tends to traditionally overlook these narratives, rendering them invisible under the law unless individuals undertake certain affirmative acts—surgery, hormone injections, and the like—in order to receive recognition. Under this construct, the binary system is never questioned or challenged. Moreover, the morphological model of assigned sex—with its focus on fixity, stability, and objectivity—tends to foreclose the possibility of interrogating these categories altogether or imagining an alternative.55

This is the point at which the parallel between property and the morphological model becomes so instructive. Like Harris, I do not argue that gender or sex functions formally or technically as property in the sense that these entitlements can be purchased or alienated, but instead I argue that our gender and sex classification system functions as a regulatory network of entitlements that illuminates the functions of property and identity.56 Taking the analogy between the morphological approach and property even further, we see a clear parallel between the definition of tangible property—fixed, immutable, and informed by the notion of scarcity—and the way that the law has historically treated the categories of male and female. Even more than the comparison of entitlements between males and females, Harris’s observations, when applied to the concept of assigned sex itself, tend to suggest that the very ascription of sex as male or female—and nothing else—operates as itself a kind of status-based property that excludes those who fall outside of its system.57

In making this suggestion, I make two specific arguments. First, I argue that the ascription of sex 58 resembles the numerus clausus principle. Just as the numerus clausus principle operates in property to classify entitlements into a fixed, stable, and rigid set of categories, leaving no room for deviant entitlements, the same is true for the categories of sex and gender. Like tangible property’s focus on fixedness, the law regarding sex assignation has historically tended to operate from a presumption of scarcity, meaning that there are only two poles of sex—male and female—and that there are no other choices of identification.

Second, I argue that the morphological model, like property itself, functions in an allocative fashion. Like Harris argued concerning whiteness, I argue that the “sexed” nature of identity operates to offer privilege and status to some and not others. Those who operate outside the polarities of male and female, or who view themselves as crossing between these polarities, are in a situation similar to the one that Harris argued was facing nonwhite individuals;59 they can face a troubling sort of exclusion from legal recognition. Individuals who do not fit in either category can be left legally unrecognized, partially erased from legal personhood, unless and until they undergo surgical treatment.60 At times, even when they do undertake such treatments, they can still be barred from changing their birth certificates, parenting, or being legally recognized in other ways as well.61

A. The Ascriptive Function of Assigned Sex

In the numerus clausus of sex, the law dictates that there are only two possibilities—male or female.62 Sex is constructed as both a function of scarcity (in the sense that one’s choices are limited between male and female) and a rivalrous one (in the sense that one can be either male or female, but not both or neither). As one author points out, “Courts and administrative agencies make two demands of bodies—that they be legible as male or female, and that they be so designated and classified.”63 The state’s system of sex classification is often elaborate—from birth certificates, to drivers’ licenses, passports, and other identity-related documents, to the federal collection of data—and has been used to enforce bans on same-sex marriage, to exclude women from military combat positions, and to administer institutional systems of sex segregation, among other actions.64

Just as the numerus clausus principle in property law operates to erase the possibilities of alternative formations, the availability of only two categories of gender identity—male and female—tends to erase the possibility of anything that does not fit into either one.65 Yet, in many cases, the presumption of polarities between male and female is deeply fraught with empirically unwarranted presumptions.66 Every year, for example, thousands of individuals are born intersex, meaning that their chromosomes, hormones, gonads, genitals, internal sex organs, and secondary sex characteristics are not all associated with either the male or female sex.67 The moment a child is born, the child is automatically assigned an identity that is congruent with the physician’s determination of the sex of the child as male or female.

Despite the fact that most believe that sex is determined by chromosomes—XX for females, XY for males—sex tends to be assigned at birth by a simple visual inspection of the baby’s genitals.68 Anyone who fails to fit within these visual parameters—for example, individuals with large clitorises or small penises—can be subjected to corrective surgery to ensure that their bodies conform to an expectation of what is male and what is female, often according to the physician’s overwhelming power of determination.69 For this reason, intersex children are almost uniformly habilitated into one gender, even though there is mounting evidence that suggests that nonconsensual genital “normalization” surgery may cause more psychological harm than good.70 In addition, growing evidence of healthy psychosocial development among intersex children who have not had surgery suggests that the procedures can be successfully delayed or may even be unnecessary.71

Even aside from the intersex population, the numerus clausus of sex also operates to shoehorn other types of gender identities into male or female, irrespective of the complexity of human identity formation and expression. In some cases, the standardization of male and female categories acts to impose regulatory categories on something as complex as private self-identity. Like the critiques leveled at numerus clausus in property, which suggest that the principle restrains individual autonomy 72 and leads to imposed standardization and conformity, the same is also true of our systems of sex classification and discrimination law. Here, the law—and many others—overwhelmingly categorize transgender persons as people in the process of becoming something else, as uniformly “transitioning” from one sex to another, even though that is not always an accurate description of many people’s self-identities or expressive preferences.73

Today, more and more evidence suggests that there is a myriad of transgender identities that do not always track the crossing of male to female, or the reverse, that the law demands or envisions.74 For example, in a recent, powerful article, Professors Dean Spade and Rori Rohlfs critiqued the project of compiling statistics on the LGBT community for the purposes of rights-based advocacy, pointing out that some survey questions tend to overemphasize transition at the cost of people who do not engage in certain body modification practices.75 These practices, they argue, reinscribe the same problematic assumptions that transgender advocates critique and also overlook the role of race and class in identity formation.76 Many individuals undergo no medical treatment but do take other steps to conform to their gender identity.77 Some reject their birth-assigned sex in favor of another, whereas others may reject the binary system of sex classification entirely.78 As Professor Currah, Professor Juang, and Minter have noted, “As new generations of body modifiers and new social formations of gender resisters emerge, multiple usages coexist, sometimes easily, sometimes with much generational or philosophical tension.”79 Of course, even the term transgender can be limiting; while it is often a useful term in many contexts, at other times, it can be too imprecise.80

However, despite the proliferation of identities that transgress the polarities of male and female, the law often forecloses the possibility of legal recognition of these categories, due again to the numerus clausus of sex.81 As Professor Judith Lorber has wisely observed, “Every social institution has a material base, but culture and social practices transform that base into something with qualitatively different patterns and constraints.”82 In order to fit into the assigned categories of male and female, the law has historically recognized transgender persons’ identity only when they undertake gender confirmation surgery considered “permanent and irreversible.”83 Because of the tremendous cost associated with genital surgery, advocates have utilized the categories of disability in order to seek coverage, as Section C describes.84 As Spade writes, “In order to get authorization for body alteration, the scripted transsexual childhood narrative must be performed, and the GID [now known as gender dysphoria] diagnosis accepted, maintaining an idea of two discrete gender categories that normally contain everyone but occasionally are wrongly assigned, requiring correction to reestablish the norm.”85

B. The Allocative Function of Assigned Sex

On a deeper level, the very act of classifying human identity, like the numerus clausus principle, operates to reinforce the centrality of the state as the sole source of legal personhood, particularly in matters of sex classification. Consider Merrill and Smith on the numerus clausus point:

[I]f the code recognizes certain forms of property, but not others, it follows logically that the forms enumerated in the code are the only types of property that the judiciary may enforce. The parties may not create a new type of property by contract, nor may the judiciary on its own authority invent new property rights, because this would contradict the code’s status as the exclusive source of legal obligation.86

The same can also be said for the legal regulation of sex, which cumulatively and completely establishes the determinative power of the state—and its codes—in determining, recognizing, and ultimately administering identity. Through its design of legal entitlements, the state gains a monopoly power in assigning one’s sex, obviating the power of alternative interpretations. This entitlement is deeply and intimately connected to political recognition and personhood. Even if the goals of our regulatory system lie in (seemingly) efficient standardization, it creates a hierarchy of privilege for those who fall outside of its parameters. In this sense the “property” of being sexed operates allocatively and instrumentally, in the sense that the law accords a certain type of privilege and entitlement to those who are cisgender, conforming to either male or female identities assigned at birth, or those who undergo a particularized type of gender transition. These privileges determine tangible and intangible entitlements—including access to education, employment, and public accommodations, among others.87

In addition to the scientific difficulties associated with the very classification of assigned sex under the morphological model, there is the added difficulty posed by the presumption of fixedness and immutability that informs this model. The classification of assigned sex, therefore, translates to a differentiation of privilege. Just as Harris suggested that the status of whiteness operates as a type of property, here I suggest that the status of “sexedness”—that is, being “sexed” or classified by the state—performs the same function, conferring the benefits of recognition on individuals who fit the morphological model and denying certain entitlements, particularly recognition, to those who transgress or who do not fulfill the regulatory requirements for transition.

Gender classification is a primary power of the state, but as scholars have shown, it is an inordinately messy, shifting, complex, and contradictory set of rules, demonstrating a near total absence of coherence.88 For example, the formal rule of the Social Security Administration used to be that individuals could apply to have their gender reclassified upon a showing of proof that they had undergone gender confirmation surgery.89 Yet reports suggested that these rules were enforced inconsistently, and that some transgender individuals were able to get their gender changed by showing a court decree of a name change and a doctor’s letter simply stating that the transition is “complete,” without specifying further.90 Passports, which are provided by the Department of State, also required proof of confirmation surgery in the past (that has now changed).91 However, in the past, some individuals had been able to receive new passports simply by convincing the State Department employee that the gender assignation is a “mistake.”92

Birth certificates, for example, are regulated by the states, not the federal government, and, despite the difficulties or ambivalence many associate with gender confirmation surgery, over a quarter of states specifically require evidence of surgery in order to change the designated gender.93 Here, too, there is significant variation, among both the statutes themselves and their application, leading to marked levels of inconsistency.94 Some states do not require surgery but instead require other forms of medical evidence.95 Others require a court order confirming gender change.96 Some states ban transgender individuals from changing their assigned sex altogether.97 Still others require a new birth certificate to change assigned sex on other state documents.98 Indeed, the policies—and the way they are interpreted and applied—can lead to such marked variation that some transgender persons have, again, reported success in simply visiting the DMV and then complaining that the sex listed on their drivers’ licenses is an error.99

Even aside from the state and federal matrices that govern the assignation of sex, researchers report a similar pattern of inconsistency in sex-segregated facilities, for which there is often no formal policy to determine gender classification in cases of transgender clients.100 The absence of formal policies can have dramatic effects on the lives and well-being of transgender persons, who can be especially vulnerable when placed in facilities that are inappropriate to their gender identities.101 Like the issues surrounding documentation of identity, the law tends to avoid recognizing other forms of gender nonconforming behavior without evidence of gender confirmation surgery or a gender dysphoria diagnosis. Moreover, the state’s centrality in sex classification—and its concomitant reliance on the polarities of male and female—is rarely critiqued or questioned. The state’s purpose in official sex designations is for information gathering and juridical enforcement of sex-specific laws and policies; these government interests effectively override individual gender self-determination.102

Admittedly, just like property’s numerus clausus system, our systems of gender and sex regulation do offer important benefits. One key interest, which Merrill and Smith point out in the real property context, is to economize on information costs—allowing third parties and future transaction participants to decrease information-processing costs.103 Although Merrill and Smith recognize the value of the fluidity of language for generative or expressive purposes—in other words, to derive new possibilities of entitlement formation—they clearly note that the numerus clausus principle strongly cuts against building any flexibility within the basic categories themselves.104 The result, it seems, maintains standardization at the cost of individual autonomy.

The same observation may also be made for the regulation of sex. Very often the presumption of the fixed, binary, stable formation of male and female categories enables people to make quick assumptions about individual preferences and entitlements. At times, these assumptions can be largely benign or rebuttable based on future interaction.105 Yet when these ascriptive elements translate into assumptions about the intellectual, emotional, or physical capacities of an individual based on assigned sex, the constructs can be deeply problematic and a cause for concern under antidiscrimination laws.106

Yet the absence of legal possibilities for deviation—while certainly economizing on standardization—also creates marked costs that are borne by individuals who fall outside of these categories. So the benefits of standardization might actually create measurable costs that are internalized by gender nonconforming populations. Here, the numerus clausus principle of sex operates to disadvantage members of both the transgender and intersex communities, first, by foreclosing the possibility of alternative identity formations and, second, by forcing individuals who may not fit into either category to change themselves—sometimes physically and sometimes psychologically—in order to avail themselves of legal recognition. For intersex persons, they may be involuntarily subjected to medical intervention, sometimes irrespective of their potential preferences and without their informed consent. In contrast, transgender individuals may desire treatment, including hormones or surgery, but might be prevented from getting treatment, due to the insurance or regulatory issues surrounding gender transition. Or, as the data suggests, many others may not desire medical intervention at all, and thus may face legal invisibility.107 Yet in either case, the individuals’ preferences and ability to determine, for themselves, their own gender are foreclosed by the dominance of the polarities of male and female, erasing other possibilities of legal self-identification.

C. The Evolution of the “Properties” of Gender

The allocative function of the morphological model of sex, as I suggest above, necessarily leads to a degree of state surveillance and regulation of the entitlements associated with assigned sex. Most of these classifications and entitlements are rarely questioned, even though they do function, in some ways, similarly to racial classifications and thus as status-based properties, as Harris has suggested. Those who are classified “successfully” by the state are able to exercise the privileges and entitlements associated with their birth-assigned sex as a vested interest. Yet those who experience a disjunction between their assigned sex and their own self-identity may face a myriad of legal challenges stemming primarily from the state’s inordinately powerful role in their identity classification.108

Of course, there are obvious advantages offered by the centrality of the state. Ideally, state-sponsored regulations offer some degree of uniformity to sex classifications, and they also provide notice to the public, thereby reducing information costs. Yet, under this model, the state alone carries a rarely challenged monopoly power over sex classifications and also, relatedly, over gender reassignment. Particularly in these realms, in which public health considerations are so intimately tied to the range of possibilities for identity management, it is notable that many classificatory decisions have been made without significant deference to transgender individuals themselves.

In these ways, transgender communities offer an important critique of the law’s regulation of sex and gender from both a minoritizing and universalizing perspective.109 For members of the transgender community, this project is largely self-constitutive, because it demonstrates the need to rethink some of the classifications that disenfranchise them from access to medical services, equal treatment, and full-fledged citizenship.110 At the same time, because they engage with the deepest presumptions that the law holds regarding the classifications of sex and gender, and the cultural expectations that underlie each, transgender communities offer a universalizing critique of the role of gender in our everyday lives and also underscore the need for a reimagination of the relationship between sex and gender altogether.111

While studies of transgender-related theories have existed since the mid-nineteenth century in academia, many scholars, particularly Professor Sigmund Freud, tended to conflate transgender identity with repressed homosexuality, leading to a focus on psychoanalytic therapy that persisted well into the 1970s.112 At the same time, however, medical advances in endocrinology and surgical techniques began to slowly decouple the conflation of transsexuality with transvestism (cross-dressing) and homosexuality, leading to the emergence of new models of transgender identity.113

Eventually, experts also began using the term gender dysphoria, which slowly began to replace the previous category of transsexuality.114 Many of the key issues that transgender people face—both historically and even today—center around the role of medical treatment and the advantages and disadvantages of a diagnosis of Gender Identity Disorder (GID), now referred to as gender dysphoria.115 In 1980, the American Psychiatric Association (APA) added a category of gender identity disorders, including transsexualism, to the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III).116 By 1994, the criteria for a GID diagnosis included the following: “(A) strong and persistent cross-gender identification, (B) persistent discomfort about one’s assigned sex or a sense of inappropriateness in the gender role of that sex, (C) lack of a physical intersex condition, and (D) clinically significant distress or impairment in social, occupational, or other important areas of functioning.”117 In 2013, the fifth edition (DSM-5) removed GID entirely and replaced it with a new diagnosis of gender dysphoria.118

Gender dysphoria has had a long and tumultuous history, leading to the birth of what has been called the “medical model” of transgender identity.119 Following the much-publicized transition of Christine Jorgensen, an ex-GI formerly named George Jorgensen who in 1953 returned to the United States as a woman, many more individuals began to seek out medical treatment.120 This culminated in the 1966 founding of a program at Johns Hopkins University for those with gender identity issues, along with a specialized protocol developed by an endocrinologist, Dr. Harry Benjamin, who sympathized with his patients and prescribed hormones, among other options.121 Within just ten years of the opening of Hopkins’s inaugural clinic, forty others opened.122

Yet, many of these clinics relied on a model that was so narrow that it risked excluding a wide variety of gender variant individuals. As one scholar reports:

To qualify for treatment, it was important that applicants report that their gender dysphorias manifested at an early age; that they have a history of playing with dolls as a child, if born male, or trucks and guns, if born female; that their sexual attractions were exclusively to the same biological sex; that they have a history of failure at endeavors undertaken while in the original gender role; and that they pass or had potential to pass successfully as a member of the desired sex.123

As a result of this pathologizing tendency, many individuals were turned away for spurious reasons:

because they were “too successful” in their natal gender roles, because they were married, because they had read too much about transsexualism, because they had the “wrong” sexual orientation, because clinic staff didn’t consider them sexually attractive in the cross-gender role, or because they wouldn’t comply with lifestyle requirements imposed on them by the clinics.124

Those accepted for treatment were pressured to avoid socializing with other transgender individuals on the grounds that they were “now normal men and women.”125

Today, the World Professional Association for Transgender Health, which provides guidance to the medical community for the treatment and management of gender dysphoria, requires that individuals receive the diagnosis and live full-time as their self-identified gender prior to receiving certain forms of medical treatment, such as hormones and surgery.126 Until the early 1990s, the medical model was the dominant approach to transgender care.127 Like the numerus clausus principle’s disallowance of deviation, this model has operated under the presumption that all transgender individuals were literally “in transition” from male to female, or the reverse, largely disallowing any forms of deviation.

Of course, one significant advantage of using the language of dysphoria involves the simple fact that a gender dysphoria diagnosis has enabled individuals to receive access to medical care for the purposes of surgery or hormone treatments.128 Similarly, it has allowed courts and medical professionals to view transgender individuals as facing a conflict over their gender identity, one that is successfully treatable and resolvable with the right combination of medical interventions.129

At the same time, however, an overreliance on this medical model tends to suggest that “trans-identified individuals suffer from a psychological condition” requiring medical intervention.130 Further, the medical model tends to reify, rather than challenge, pervasive stereotypes about sex and gender. One scholar observed:

The medical model of transsexualism supposed that there were but two sexes, and that the only alternative to remaining unhappily in the original gender role was to work hard to conform to the only available alternative. That is, one “changed sex,” going from male to female or from female to male. The model didn’t question the society that created such restrictive gender roles or examine the possibility of living somewhere outside those binary roles. . . . Transsexualism itself was considered a liminal state, a transitory phase, to be negotiated as rapidly as possible on one’s way to becoming a “normal” man or “normal” woman.131

Another significant disadvantage involves the disparate implications of the diagnosis requirement. By carving out a class of transgender individuals who have been diagnosed with gender dysphoria and are receiving treatment or surgical intervention, the medical model tends to risk unwittingly excluding those who are not receiving treatment from legal recognition.132 Individuals who do not believe that they have a medical condition, who identify as genderqueer or with some other gender nonconforming category, who opt for nonmedical modes of transformation, like binding breasts or using cosmetics or wigs, or who otherwise choose not to physically transform, risk exclusion from these models.133 By implicitly suggesting that individuals need to first receive a diagnosis in order to receive particular forms of treatment, gender dysphoria has had the effect of actually limiting access to treatment because those who cannot afford medical treatment (or who lack health insurance coverage) can be left unable to address their situation through any other form of managed care if they lack a gender dysphoria diagnosis.134 As a result, many individuals seek hormones and other treatments extralegally, outside of the medical system, posing risks to their well-being and safety.135

Another result of the emphasis on gender dysphoria is slightly more ephemeral. Focusing on gender dysphoria as a variant of a disability lends itself to the suggestion that gender nonconformity is something experienced by only a small minority of individuals, cast as in need of treatment and therapy. Yet this myth could not be further from the truth. To be sure, gender nonconformity is different from gender dysphoria, but the law tends to recognize only a particular subset of the latter category and may fail to protect the former category as a result.136

Of course, the observation above is not meant to suggest that the desire to obtain gender confirmation surgery or hormone treatments is not a real, deeply felt need by some transgender-identified individuals. Professor Jennifer Levi and Ben Klein, for example, have argued that the purpose of seeking disability protection is not to pathologize individuals but rather to obligate institutions to ensure that transgender individuals are able to participate fully in society by providing them with medical options for transition when appropriate.137 Many individuals focus on the materiality of the body in seeking a congruence between their self-identity and gender presentation, and much of the surrounding discourse often uses, either directly or indirectly, the language of property in articulating claims for medical intervention on this basis. Consider, for example, Dr. Jay Prosser on this point:

I do not recognize as proper, as my property, this material surround; therefore I must be trapped in the wrong body. Since inappropriateness is located in the material body, the entire configuration explains why the subject seeks surgical intervention to alter the flesh rather than psychological intervention to transform body image. If the body is not owned, it is in this experience of body—not my body—that surgery intervenes.138

For some, as Prosser suggests, surgical intervention might be a desirable goal. Yet there are dangers in presuming that all people who identify as transgender seek the same thing, a presumption that is categorically flawed and yet often imposed by the law and the state itself. My point here is simply to suggest that the minoritizing language of a gender dysphoria diagnosis lends itself to obscuring the significant need for a deeper and more structural critique of gender itself—highlighting its political role in creating and consecrating the categories of male and female, and exposing the presumption that there is something deeply wrong with gender nonconforming behavior that needs to be “fixed.”

D. The Path of Transgender Jurisprudence

While these medical advances were unfolding in the 1950s and afterward, the law had only just begun to face the question of how to address sex changes in a variety of different contexts, ranging from the validity of marriages between trans- and cisgender-identified individuals, to the question of “gender fraud,” to birth certificate questions, to cases involving employment.139 Similar cases were also unfolding on a global scale, and each of these trajectories initially effectively cemented the centrality of one’s assigned sex at birth, rejecting the possibility that the law recognized transitions from male to female and vice versa.

Here, the morphological model of sex characterizes early jurisprudence on transgender issues. Again, the two polarities of male and female are all that is offered, at times limiting the chance of a successful transition between them, let alone the possibility of identifying outside of these polar categories. Sex operates here like a type of tangible property under the law—fixed, immutable, and rivalrous. Because the law treats sex through a lens of scarcity, it functions like a kind of nontransferable property, limiting the possibility of more malleable approaches. Here, the idea of sex operating as a kind of nontransferable property gives rise to two main approaches in the law: (1) early cases that rejected the possibility of a change in assigned sex, and (2) later cases that recognized the possibility of a change in sex assignation but relied on a mode of analysis that employed stereotypical views of male and female, thus reifying a binary system that failed to take into account the malleability of changed roles regarding gender. Both of these trends had negative effects on transgender equality, though for very different reasons.

Consider the first line of cases, which rely heavily on policing the boundaries between male and female, allowing for little crossover between them. In 1957, a Scottish court rejected a transgender woman’s application to alter her birth certificate by stating that “skin and blood tests still show X’s basic sex to be male and that the changes have not yet reached the deepest level of sex determination.”140 This observation that biology was essentially immutable pervades early transgender jurisprudence, and it also operated to suggest a deep-seated similarity between conceptions of sex and conceptions of property—both were cast as fixed, stable, and largely immutable under the law. Gender fraud, too, played a key thematic role.

By the 1970s, the first cluster of legal cases involving transgender individuals began to make their way to the courts, both in the United States and elsewhere. Prior to the 1970s, in the United Kingdom, transgender persons were able to legally marry members of the opposite gender.141 However, in 1970, an English court handed down Corbett v Corbett,142 a case that held that sex was determined at birth.143 The case involved a challenge to the validity of a marriage between a cisgender male petitioner, Arthur Corbett, and a postoperative transgender woman, April Ashley.144 Although the husband was aware of Ashley’s history, in order to avoid paying her alimony, he sought an annulment on the grounds that Ashley was actually a “person of the male sex” and therefore the marriage was invalid.145

Although her status as a “transsexual” had not been challenged by the defense, Ashley was examined multiple times by medical experts—her vagina was examined to determine whether it could accommodate a male penis, for example.146 In their recommendations, one expert classified her as “a male homosexual transsexualist,” and yet another concluded that “the pastiche of femininity was convincing.”147 A third expert classified Ashley as intersex, and said she should be assigned to the female sex.148 In the end, however, the judge concluded that sex is determined at birth by a congruence of chromosomal, gonadal, and genital factors.149 After reviewing all of these factors, the judge, himself a medical doctor,150 concluded, “It is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed. . . . [Ashley’s] operation, therefore, cannot affect her true sex.”151 The court further concluded that “[m]arriage is a relationship which depends on sex and not on gender.”152

Corbett, by nearly all accounts, had a profound and lasting effect on transgender equality around the globe. Corbett was followed in other countries as well, specifically Canada, Singapore, and Australia.153 The central proposition of the case—that sex is determined at birth—became the conclusion that foreclosed transgender equality claims in multiple areas, specifically regarding birth certificates, social security, sex discrimination, unfair dismissal, equal pay, criminal law, and marriage, throughout England—and elsewhere—for many years.154

Moreover, the presumption that sex was inevitably fixed at birth continued to inform the development of early transgender jurisprudence in the United States. The numerus clausus of sex functioned here to deny alternative classifications or transitions between the sexes. Consider the observations by a Texas appellate court that refused to recognize the marriage between Christie Lee Littleton, a transgender woman, and Jonathan Mark Littleton, a cisgender man:

The deeper philosophical (and now legal) question is: can a physician change the gender of a person with a scalpel, drugs and counseling, or is a person’s gender immutably fixed by our Creator at birth?155

There are some things we cannot will into being. They just are.

. . .

We hold, as a matter of law, that Christie Lee Littleton is a male. As a male, Christie cannot be married to another male.156

After Littleton and Corbett, appellate courts in Kansas, Ohio, and Florida ruled that marriages involving transgender individuals were null and void.157

Although many courts still cling to the presumption that sex cannot be changed, a growing body of jurisprudence has come to conclude otherwise. For example, after Corbett, courts in the United States, Australia, and New Zealand began to respond to calls for reform, and so began to carve out legal recognition for individuals who transitioned into another identity by focusing on the importance of “psychological and anatomical harmony.”158 For example, in a 1968 New York case, In re Anonymous,159 a judge permitted a transgender woman to change her birth certificate, on the grounds that, postoperation, her anatomy (originally assigned male) had been successfully conformed to her self-identity (female).160 The judge rejected any concern over fraud, noting “the probability of so-called fraud, if any, exists to a much greater extent when the birth certificate is permitted . . . to classify this individual as a ‘male.’”161

Despite the growing importance accorded to psychological self-identification, however, the law still tended to reflect a preoccupation with the tangible manifestations of genital anatomy. This preoccupation, unusually, also manifested itself through a growing focus on the applicant’s postoperative capacity to engage in heterosexual intercourse.162 The issue came up in Corbett and also, inexplicably, in Anonymous, although it is extremely difficult to understand why such an observation would even be necessary on a change of birth certificate.163 The focus on postoperative “genital performance” turned out to be a central factor in a case from New Jersey, M.T. v J.T.,164 which held a postoperative transgender woman to be female, at least for the purposes of marriage.165 Here, the court noted the medical expert’s testimony that the woman’s vagina and labia were “adequate for sexual intercourse.”166 The reasoning suggested that it was because she could no longer perform sexually as a male in sexual intercourse, and because the surgery provided her with the capacity to perform sexually as a woman, that the court validated the change.167

Admittedly, the recognition of sex changes within the law was a tremendous benefit to transgender individuals seeking legal recognition. At the same time, however, these decisions, by limiting the recognition of transgender bodies to those who had undergone surgery, began to explicitly and implicitly suggest that surgical confirmation was an imperative to a successful transition.168 Again, like in the context of physical property, these cases tended to ground themselves in an overwhelming focus on the tangible manifestations of one’s anatomical genitalia, by always remaining fixed to a polarity of male or female. After all, these courts reasoned, without genital surgery, how could there be a change of sex?169 Adding to this view, one scholar explained, referring to surgery, that “it is hard to see an earlier point at which legal sex reassignment could take place,” due to “the need for ‘objective’ evidence of a subjective state of mind, and the need for a clear-cut point at which the legal sex-change takes place.”170

Again, as these scholars suggest, the tangible fixedness of ascriptive sex—coupled with a presumption of polarity—can operate to disadvantage transgender parties even further. During this period, and even today, judges engaged in a kind of scientific scrutiny of genitalia that was unparalleled compared to many other areas of law.171 In many cases, often those resulting in positive outcomes for transgender individuals, courts engage in a detailed, and often problematic, examination of what counts as “normal” versus “abnormal” physiological characteristics, overlooking the dangers of definitional over- and underinclusivity. In performing these analyses, courts reduce the transgender plaintiff and his or her marriage to a specific set of behaviors and anatomical differences, allowing little room for fluidity, variability, or negotiation of the categories themselves, just as the numerus clausus doctrine dictates.172

An overly rigid dichotomy between preoperative and postoperative status has disparate effects based on social status, gender, and race, further obscuring the more complicated medical choices faced by transgender individuals, particularly transgender men who face a lower probability of surgical success in metoidioplasty or phalloplasty.173 Given this instability, courts’ focus on body parts often has the unintended result of conferring far more legal recognition on trans women than on trans men.174 As Professor David Cruz points out, “Medicalization encourages a delegation of authority over gender not to individuals, but to medical professionals, a class that has largely maintained itself as gatekeepers over, hence deniers of, access to various gender confirming treatments.”175

There are, of course, larger difficulties with this approach. On this point, Professor Alex Sharpe has commented:

In this way sex, albeit in refashioned form, continues to provide a foundation for, and to make sense of, the social system of gender. In other words, only one body per gendered subject is “right” . . . and the “rightness” of that body is to be understood in relation to heterosexual function. In this regard, the view that anatomy determines destiny is taken to somatic limits.176

Thus, it is not just enough for the court to know that certain transgender individuals have a “functional” vagina or penis; courts also need to be further implicitly reassured of the heterosexuality of each in order to recognize them.

E. The Legal Presumption of Polarity

The dominant theme of the cases above is their focus on a kind of polarity between male and female: one can be one or the other, or perhaps cross over successfully with gender confirmation surgery, but never rest between the two or challenge the poles altogether. Just as the numerus clausus doctrine dictates, other forms of gender nonconformity are simply not protected by applicable law.

Consider, for example, cross-dressing. In the mid-1800s, a variety of American cities began to adopt ordinances that prohibited cross-dressing. St. Louis, for example, adopted a law in 1864 that declared that whoever appeared in a public place “in dress not belonging to his sex” would be guilty of a misdemeanor.177 Similar statutes were adopted in Columbus, Cincinnati, Miami, Detroit, Los Angeles, Dallas, and Houston.178 State laws, too, were employed to prevent cross-dressing under the use of statutes to prevent “disguise.”179

These statutes were employed to target both men and women who cross-dressed, and often remained on the books until well into the 1980s.180 In several cases, transgender individuals were targeted even though they were actually required to wear clothing of the opposite gender in preparation for their reassignment surgery.181 Later, several courts overturned these statutes on the grounds that they were overly vague or that they interfered with the liberty interests of the individuals; one court observed that “the aesthetic preference of society must be balanced against the individual’s well-being,” noting that it would be inconsistent for the law to permit gender confirmation surgery and then impede the therapy necessary in preparation.182

While these cross-dressing statutes remained on the books, more and more individuals began to turn to other areas of the law for recognition and protection. As more cases involving transgender individuals made their way through the courts, a number of judges were asked to consider whether Title VII’s prohibition against discrimination on the basis of sex applied to the individuals’ situations. Early cases, again, followed the “sex as scarcity” model, leaving transgender persons unprotected due to a preoccupation with the fixedness associated with state-assigned sex. According to one commentator, these early decisions, around the 1970s and 1980s, generally offered the following observations: (1) that “sex discrimination laws were not intended to protect transgender individuals,” and (2) that the term “sex” referred only to one’s assigned sex, “not to change of sex.”183

These two conclusions led to a variety of presumptions that further grounded sex in property-like formations. First, they reified the dominant model of sex discrimination as a system of polarity between male and female, again underscoring the presumption of scarcity between gender choices. Second, they engaged in a type of “sex scripting,” by forcibly assigning a particular sex to someone who may have self-identified with another (often opposite) identity. Third, they foreclosed the possibility of mutability, leaving assigned sex a tangible, unchangeable manifestation, not of a person’s self-identity, but of the state’s inability to accept change and transition. Finally, the cases ascribed identities to members of the transgender population that were no longer congruent with their self-identification.

For example, in 1975, two federal courts—one in California and another in New Jersey—held that Title VII did not protect transsexual employees. In one of those cases, Voyles v Ralph K. Davies Medical Center,184 an employee was fired after she announced that she wished to transition; the court held that Congress enacted Title VII to protect women, not “transsexuals,” and that nothing in the legislative history of Title VII suggested any desire to protect transgender individuals.185 Similar reasoning was employed in the case of Grossman v Bernards Township Board of Education,186 in which a teacher was fired after undergoing gender confirmation surgery “not because of her status as female, but rather because of her change in sex from the male to the female gender.”187

Here, the court suggests that what lacks protection is the volitional nature of gender choice. Under these cases, any changes or crossovers between the two polarities of male and female did not have to do with sex, per se; they were merely the result of a personal choice. Sex, here, becomes scripted as a kind of unchangeable reality, an entrenched, tangible property that informs an immutable identity. The result of these decisions is a form of “sex scripting”—the idea both that sex is biologically assigned from birth and that the state’s protection simply flows from a presumption of polarity and immutability. Consider, for example, the famous 1984 case of Ulane v Eastern Airlines, Inc,188 in which a federal court of appeals found that the plaintiff, a transgender woman, did not suffer discrimination on the basis of sex, because (according to the court):

Ulane is entitled to any personal belief about her sexual identity she desires. After the surgery, hormones, appearance changes, and a new Illinois birth certificate and FAA pilot’s certificate, it may be that society, as the trial judge found, considers Ulane to be female. But even if one believes that a woman can be so easily created from what remains of a man, that does not decide this case. . . . It is clear from the evidence that if Eastern did discriminate against Ulane, it was not because she is a female, but because Ulane is a transsexual—a biological male who takes female hormones, cross-dresses, and has surgically altered parts of her body to make it appear to be female.189

Other courts also concluded that discrimination against transgender persons did not constitute discrimination based on sex.190 Again, in these cases, the implicit presumption of scarcity—that one can be assigned male or female but cannot transition into something else—suggests that sex, like property, is fixed, unchangeable, unalterable, and tangible. To suggest otherwise invites charges of fraud.191 Even in cases that do recognize a change in assigned sex, the judicial focus on the tangibility of the change (for example, the focus on genitalia) further forecloses the possibility of recognizing sex changes outside of genital surgery.

These cases represent a particularly strident point of view that persists, even today. Many of the assumptions explored above—the idea that sex is biologically determined at birth, for example—have continued to circulate in contemporary discussions of transgender protection and identity. Consider, for example, a full-page newspaper ad taken out by the Campaign for California Families to oppose the redefinition of the term “gender” to include transgender individuals in California’s employment discrimination statute:

The State should not promote the transsexual agenda upon society. Little girls should not be influenced in any way to think they are boys, nor little boys influenced to think they are girls. This bill makes the State approve of transsexuality and sets up an unnatural standard for adults and children. . . . [It] is an attack on nature. People are born with 46 chromosomes, XX for females, XY for males. You are either born male or female, and there are no in-betweens.192

Similarly, a columnist for a conservative magazine put forth the observation that “expectations and notions of gender may evolve, but gender itself is permanent. Sorry.”193

II. Exploring the Intellectual Properties of Gender

Whereas the morphological model functions in the law under a numerus clausus model that presumes the fixedness, immutability, and tangibility of assigned sex, gender, which is typically defined as the cultural expectations and social roles that accompany sex,194 offers an opposite set of possibilities. In this Part, I turn to a second, alternative model of gender: a performative model. In contrast to the morphological model’s presumption of polarity, a performative model of gender focuses on subjectivity, malleability, and fluidity in offering a set of possibilities for identity formation and expression. Further, a performative model, I argue, demonstrates an intimate and overlooked connection to intellectual property, because it highlights the intangible, nonexclusive, nonrivalrous, and malleable elements of gender, in contrast to assigned sex. Put another way, as they function in the law, the relationship between property and intellectual property tracks a similar connection between sex and gender. If assigned sex operates as a tangible marker of identity within the law, then gender operates as an intangible overlay, a fluid performance over the seemingly tangible “property” of assigned sex.

In constructing this argument, I rely heavily on Professor Butler’s theory of gender performativity, which argues that gender is constituted by a series of external, ritualized performances that, over time, help to construct an image of gender as something that is intrinsically tied to sex.195 For Butler, there is no cognizable gender identity behind its external expressions, social constructions, and expectations; rather, “identity,” she argues, “is performatively constituted by the very ‘expressions’ that are said to be its results.”196 In this Part, following Butler, I introduce two ways of thinking about gender and performance through the lens of intellectual property, one descriptive, and the other normative.

In Section A, I show how gender performance, following Butler’s theory, demonstrates an intrinsic connection to intellectual property through its focus on expression. Like intellectual property, gender, according to Butler’s account, is not something natural, tangible, or fixed, but constitutes a sort of expression that is deeply intangible and suffused through with cultural regulation and social norms rather than biological imperative. Unlike other forms of tangible property, gender lacks a sovereign border—instead, it constitutes an intangible expression, an ongoing performance—in much the same way as traditional formulations of intellectual property display these attributes. Indeed, the performative dimensions of gender suggest that, instead of thinking of gender as a type of fixed identity, one should view it as more akin to intellectual property—permeable, unfixed, malleable, and ultimately expressive.

In Section B, I argue that a performative model—if taken seriously—allows us to reimagine the relationship among law, gender nonconforming behavior, and sex discrimination. When gender becomes viewed as an intangible set of expressions, rather than a set of expectations scripted onto a state-assigned identity, as we see in the morphological model, we see an entirely new host of possibilities for gender relations to operate outside the boundaries of law’s fixedness on tangibility.197 I argue that, with the advent of Price Waterhouse v Hopkins198 and its progeny, which banned employment decisions based on gender stereotyping,199 the law of sex discrimination has moved, appreciably so, toward a focus on gender performance. Such accounts of gender performativity move gender from a set of cultural expectations to an intangible form of expression, a performance that is not natural or fixed but mutable, highly expressive, and transitory.

In Section C, I analyze the performative model and its possibilities in the law and policy regarding gender discrimination. Following Price Waterhouse and a constellation of new cases embracing transgender equality in the workplace, I argue that the main contribution of a performative model lies in its ability to transgress the fixed, stable, property-like formations of state-assigned sex and to instead embrace the broader, malleable, and expressive dimension to gender.

A. Performative Model of Gender

When we think of a “performance,” we tend to conjure up an image of a scripted set of statements, actions, and activities that are fully anticipated, planned, and enacted down to every last detail—stage, costume, antics, language—with an audience in rapt attention. We imagine a performance to be something separate from everyday life and behavior: we tend to think of actors stepping outside their everyday roles as individual beings and adopting particular identities that are assertively divorced from their own.

Performance theory at once both supplements and fractures this understanding in multiple ways. At its most basic level, performance theory actively distances itself from the idea of a clear delineation between the performances of life and the performances of art, and argues instead that everyday life and activities both capture and enable elements that bear a stark resemblance to theatrical rendition and expression. The terms “performance” and “performativity,” here, are thought to apply to an admittedly wide range of behavior—from the most sophisticated and stylized of rituals to the most mundane of cultural behavior.200

Butler’s theories of gender performativity comprise the most powerful rethinking of gender and social norms in the past several decades. Her work has ruptured current, identity-based theories of gender and sexuality, forcing theorists to ask whether the act of categorization replicates the very structures feminists hope to challenge. Here, Butler’s contribution has not only lent itself to a new and fuller understanding of the modes of social construction in gender expression, but also helped theorists to recognize the powerful role of performance in everyday life, lending itself to a host of possibilities for civil rights activism both inside and outside the world of gender norms.

For Butler, traditional feminism both presumes and relies upon a kind of distinction between sex and gender that is deeply problematic.201 Thus, in her first work, Gender Trouble, Butler punctured the traditional formulations of sex and gender by instead emphasizing the need to question binary categories of being.202 She argued that gender is produced and performatively constituted by a series of repetitive acts, which, if taken seriously, would show “that there was no natural core or essential nature of gender categories, that ‘gender’ instead constituted a series of performative acts that, taken together, created the appearance of an authentic ‘core’ of gender identity.”203 Antidiscrimination advocates, she argued, subverted many of the interests of their movement by relying on clearly demarcated categories of gender, sex, or sexuality.204 Thus, instead of normalizing or essentializing same-sex sexual desires or conduct into categories that suggest that they are fundamental, immutable aspects of human identity, which is the traditional strategy of lesbian and gay rights activists, Butler argued that gay rights advocates should seek to challenge, rather than replicate, the concept of gender altogether.205

She argued that individuals are driven to perform certain behaviors associated with gender norms, and thus are always yearning for, but not quite representing, an ideal vision of masculinity or femininity.206 Over time and repetition, however, these performances give the impression that gender is a foundational aspect of personhood:207 “[G]ender is always a doing. . . . There is no gender identity behind the expressions of gender; that identity is performatively constituted by the very ‘expressions’ that are said to be its results.”208 In other words, she wrote, these acts and gestures help to create an illusion of an interior “gender core” that is maintained for the purpose of regulating sexuality.209

A cornerstone of her theory, then, lies in a complete refusal to disassociate the biology of sex and the social construction of gender.210 Traditional feminism actively distinguishes between sex and gender; it suggests that sex is biologically intractable but gender is culturally constructed.211 Butler takes issue with this distinction and argues instead that biological sex, the very materiality of the body, is totally inseparable from the cultural and regulatory norms that govern gender.212 In other words, sex is not a function of the body and a construct upon which to impose gender assumptions but actually a cultural norm that itself governs the body.213

This altogether brief explication of performativity and gender leads to two normative observations: First, Butler’s approach suggests a need to revisit and examine the complex codes and norms (legal, technological, cultural) that help us contextualize meaning through a focus on the material body and its performing potential. The success of the gender performativity model necessarily requires an audience to actively embrace gender codes and norms and also to eventually mobilize these codes to ensure that others read the performances in the same manner.214 However, gender performance itself can be a site for either resistance or conformity; much depends on the intention of the speaker, the reception of the audience, and the context in which the performance is offered.215

Second, performance theory suggests that all language becomes a series of activities, a set of “doings” and performances, a process of action and reaction that embodies behavior and expression. As Butler suggests, following the codes of gender often requires significant effort in managing one’s aesthetic appearance, particularly regarding hair, clothing, and other forms of expression.216 Gender’s deeply expressive, transitory nature thus suggests that it is nonrivalrous, akin to a kind of intellectual property. As Professor Kath Weston has commented on Butler’s work, “the reification of ‘woman’ and ‘man,’ ‘masculine’ and ‘feminine,’ implies essence where none exists. . . . A person ‘is’ not feminine, apart from the play of eyeliner and fingernails that points to an interior essence and makes it seem so.”217 In later work, Butler goes so far as to argue that the very materiality of the body is actually the effect of power.218

B. Gender Resistance and Parodic Properties

This model is deeply and implicitly reflective of intellectual property in three significant ways. First, Butler’s explication of the nature of gender mirrors, in major ways, the definition of intellectual property. Unlike real property, which is fixed, rivalrous, and tangible, intellectual property, like other types of expression, is intangible, expressive, and nonrivalrous,219 meaning that one person’s use of a resource does not deprive another of the same resource. As such, it has none of the dangers of scarcity that are associated with tangible resources. Also, because it is expressive, it allows for a multiplicity of different types of performances and recodings and is essentially unlimited in its expressive possibilities.

Many of the same things are also true of gender. Butler’s theory of performativity is deeply and intimately entwined with the notion of gender as a sort of intangible property or expression that can be created, expressed, and even subverted, according to the audience’s expectation. The performative model’s divergence from the tangibility and scarcity associated with property suggests that gender functions in an unlimited declarative capacity, opening up manifold possibilities of articulation and transference. As scholars have argued with respect to gender and property, both are performed, and both function as signals to others, communicating a set of expectations about how others must behave.220

Second, like intellectual property, Butler’s treatment of gender also suggests that its expressive nature is entirely nonrivalrous in the sense that one can occupy the spheres of both male and female, masculine and feminine, at the same or different times.221 But she also argues, implicitly, that gender identity can be transferred between the sexes—not only can a person occupy the spheres of masculine and feminine at the same time, but a person can perform femininity and be classified as a male, and vice versa. In other words, the process of regulating gender, and its concomitant performance, produces slippages, or openings, between expectation and behavior, between the ideal of masculinity or femininity and the assigned sex of the subject. These slippages, she argues, are seeds that enable an unconventional set of performances that demonstrate the transferable nature of gender expression.222

A third major point of complementarity between the performative model of gender and intellectual property is the subject’s own agency in performing gender parody, which demonstrates gender’s expressive qualities. Here, law can act in powerful ways to constrain, silence, or enable the performative model. Because gender comprises neither the causal result of sex nor a seemingly fixed aspect of sex,223 Butler argues that we must also extend recognition to those individuals who fall somewhere in the interstices of male and female binary systems, to recognize those “bodies that have been regarded as false, unreal, and unintelligible.”224 As she argues, “The cultural matrix through which gender identity has become intelligible requires that certain kinds of ‘identities’ cannot ‘exist’—that is, those in which gender does not follow from sex and those in which the practices of desire do not ‘follow’ from either sex or gender.”225

To resignify gender, Butler argued strenuously for individuals to use their agency and autonomy to engage in a series of “subversive repetition[s]” of gender, in order to decouple and recode the fictive unity of sex and gender.226 In many cases, these expressions take the form of parody or pastiche—all of which aim to offer subversive readings of the same script.227 These repetitions, for Butler and others, lie in the range of activities, identities, and expressions that transgress, rather than follow, the cultural expectations associated with assigned sex and gender.228 For example, Butler suggested that drag performance reveals the true nature of gender: that there is no realness associated with gender; it comprises a seductive illusion that can be reframed and rearticulated to suggest the need for its subversion. Taking her argument to its logical conclusion implies that if gender is a performance, then “gender cannot be said to follow from a sex in any one way,” suggesting a separation between gender and sex that is full of radical possibilities of expression.229

Butler’s exploration of drag and other forms of gender parody suggests that the performative dimensions of gender comprise a sort of expressive property—one that can be mimicked, reframed, and recast as a different text, all depending on the performer’s position. Drag allows for assigned sex to become literally transformed from an item of tangible property (exclusive, fixed, bordered, and sovereign) into performance, an item akin to intellectual property (intangible, expressive, nonexclusive, nonsovereign, and deeply prone to commentary and critique). In this process, gender becomes reframed as a particular kind of speech act that can be transferred, performed, acquired, and commented upon: in short, it comprises the marriage of an idea and an expression. “When the constructed status of gender is theorized as radically independent of sex, gender itself becomes a free-floating artifice,” she writes, “with the consequence that man and masculine might just as easily signify a female body as a male one, and woman and feminine a male body as easily as a female one.”230

Like the nature of intellectual property, gender acts as a set of qualities that take shape through ideas and intangible qualities but that can be changed and altered, revealing a world of infinite possibilities of expression.231 And, through these performances, the codes of gender become delegitimized as illusory, confining, and deeply in need of parodic subversion.

C. Unscripting Gender

At first glance, when one considers the wide range of outcomes on transgender issues, it may seem that Butler’s performative model, admittedly abstract and theoretical, has not directly influenced the outcome of case law or policy. However, to reach such a conclusion might be unwarranted.232 Specifically, her work has forced legal scholars to reckon with the expressive, transitory nature of gender performance, forcing us to reformulate, for example, current approaches to transgender equality to recognize some pragmatic limitations of the antidiscrimination model based on sex.233

In addition, I argue that the notion of gender performance has a deep and lasting significance in the law due to the Supreme Court’s Price Waterhouse decision, which implicitly analyzed the performance-related aspects of gender in demanding that employers refrain from basing employment decisions on gender scripting or stereotyping under Title VII.234 As I show in this Section, Price Waterhouse and its progeny suggest an implicit prohibition on employers engaging in “gender scripting” in making employment decisions, thus implicitly embracing a performative model of gender. In addition, by protecting gender nonconforming behavior, the performative model, quite unlike the morphological one, also enables a greater diversity of gender expression in the workplace. As I suggest, the performative model dictates that employers not only refrain from imposing identity-related scripts, but also embrace rethinking the concept of discrimination “because of sex.”235

In this Section, I argue that Price Waterhouse has given rise to two distinct approaches in protecting transgender employees, each of which emphasizes the intangible expressions of gender, rather than solely focusing on state-assigned sex. The first approach, which I call the “extrinsic” approach, essentially prohibits gender stereotyping and identity scripting in the workplace, thus leading to a greater degree of expressive diversity in the workplace. In the second approach, which I call the “intrinsic” approach, transgender individuals receive protection from sex discrimination not because they have been the victim of gender stereotyping, but because their decision to transition—and an employer’s reaction—implicates concerns about the essence of discrimination based on sex. Each of these strategies has significant implications for our understanding of antidiscrimination approaches to sex and gender in the law, but for very different reasons.

1. An extrinsic approach: Prohibiting identity scripting.

“Identity scripting” is the term that I use to refer to the expectations that surround individuals based on their perceived identities.236 For example, Part I suggested that the numerus clausus of assigned sex often implicitly demands congruence between a male-assigned sex and masculinity and a female-assigned sex and femininity. As Professor Holning Lau has explained, ascribed scripts are very difficult to reject because psychologists have found that individuals tend to register only those instances in which individuals conform to stereotypes, overlooking situations in which individuals resist the ascribed stereotype.237 Due to these cognitive biases, identity scripts are extremely difficult to alter or change, and convincing others that individuals do not (or should not have to) follow a certain script takes enormous dedication and work.238

In the past, courts were extremely reluctant to interpret “sex” in a way that would protect transgender individuals, leaving them with very little chance of success in stating a claim.239 However, Price Waterhouse changed the landscape of gender-related jurisprudence. In that case, the Court considered a broader meaning of “gender” than it had in the past, implicitly revealing a view of gender as a particular kind of performance.240 The defendant-employer had failed to recommend a heterosexual female plaintiff for a partnership at the accounting firm because some partners thought that she was too masculine, observing her “aggressiveness” and lack of “interpersonal skills.”241 Others, along similar lines, described her as “macho” and stated that she “overcompensated for being a woman.”242 One partner indicated that the plaintiff could have improved her chances of making partner if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”243

The Court took these suggestions to demonstrate that the employer clearly violated Title VII’s prohibition against sex discrimination. In response, the Court stated that it did not “require expertise in psychology to know that, if an employee’s flawed ‘interpersonal skills’ can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee’s sex and not her interpersonal skills that has drawn the criticism.”244 The Court found that Title VII reaches claims of discrimination based on “sex stereotyping,” noting “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”245 Looking to congressional intent, the Court stated that “in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”246

The impact of Price Waterhouse for the LGBT community cannot be overstated. By expanding the definition of sex discrimination to embrace claims of gender stereotyping, the Court opened up the possibility that individuals could sue under a theory that discrimination on the basis of sexual orientation or gender identity could be considered similar types of gender-related stereotyping, because many LGBT-identified individuals in the workplace are often targeted because their behavior or identity fails to conform to expectations regarding gender. Thus, a man who is targeted for appearing more feminine is often also perceived to be gay, and Price Waterhouse opened up the possibility of Title VII’s protection for him, despite the fact that sexual orientation (as a category) is not covered.247

At the same time that this decision opened up a host of possibilities to protect gender nonconforming individuals in the workplace, however, there were still serious obstacles within Title VII’s jurisprudence. Most federal courts have clearly held that discrimination on the basis of sexual orientation or transgender identity is not protected under Title VII.248 As a result, LGBT plaintiffs had to craft claims of gender stereotyping without relying on evidence that they were targeted due to their sexual orientation, real or perceived.249 The results were mixed. In one case, for example, the Second Circuit held that a gender-stereotyping claim could not be used to “bootstrap protection for sexual orientation into Title VII.”250

Despite these challenges, however, equally significant to the doctrinal shift in Price Waterhouse was its implicit embrace of gender nonconformity in the workplace. When an employer suggests that a woman behave more “femininely,” and the Court finds that to be prohibited behavior under Title VII, the Court is implicitly protecting gender nonconforming plaintiffs—masculine women, effeminate men, and potentially a host of transgender plaintiffs—from discrimination based on sex. Here, the gender-stereotyping model implicitly tracks many of the differences between property and intellectual property because it places a primary value on the intangible, expressive value of gender performance, instead of assigned sex. It also, in some ways, “frees” individuals from the scripted or stereotypical requirement that state-assigned sex dictate one’s gender performance (that is, that males behave in a masculine fashion, and the corollary for women), enabling individuals to challenge the expectations of gender, in true Butlerian fashion.

Not surprisingly, after Price Waterhouse, a slow shift occurred in the transgender rights case law from the 1980s to the 1990s. In at least a few early cases, courts began to switch their choice of pronoun—from the state-assigned sex of the plaintiff to his or her gender self-identity.251 Yet despite this discursive adoption of the plaintiff’s own representation in court documents, courts still continued to deny claims under Title VII.252 These early cases, it seems, failed to recognize the primary value of the intangible, psychological, and expressive aspects of gender expression and performance, contrary to Price Waterhouse. Instead, these cases continued to emphasize the tangible, anatomical aspects of an individual’s identity, according them an immutable, fixed status.

In one case, an Amtrak employee who began to transition from a male to a female through hormone injections faced a number of sex-related employment decisions: she was required to dress as a male, was addressed by her male name, had her office moved out of public view, and was not permitted to use the women’s restroom.253 Yet the court rejected her sex discrimination charge on the grounds that it was not discrimination against her sex, but rather “because she was perceived as a male who wanted to become a female.”254

Yet several years after Price Waterhouse, plaintiffs were better able to employ gender-stereotyping theories to their advantage. By the year 2000, at least two circuits had embraced a gender-stereotyping claim in cases of transgender plaintiffs. In Rosa v Park West Bank & Trust Co,255 a case brought under the Equal Credit Opportunity Act,256 the First Circuit allowed the claim to proceed against a bank that had allegedly discriminated against a birth-assigned male when it refused to provide her with a loan on the grounds that her “attire did not accord with his male gender.”257 In that case, the court characterized the plaintiff as a cross-dressing male, rather than a transgender female.258 The plaintiff was told that she would not receive a loan until she “went home and changed.”259 In defense of its decision, the bank argued that the laws against discrimination on the basis of sex did not apply to cross-dressers, and that it genuinely could not identify the plaintiff without a change of clothing.260 The district court adopted this argument, concluding, in the plaintiff’s words, that there was “no relationship . . . between telling a bank customer what to wear and sex discrimination.”261

Note the contrast between the Supreme Court’s Price Waterhouse approach and the district court’s approach in Rosa. In Price Waterhouse, the plaintiff was expressly told what to wear and how to dress. Even though the plaintiff in Rosa was subjected to the same treatment, she faced a dramatically different outcome at the lower court. One could surmise that the district court, here, was drawing a line between cross-dressing and other types of gender nonconformity in the workplace, allowing the latter to receive protection but not the former. Nevertheless, the First Circuit reversed on this point, concluding that, although the prohibited bases of discrimination do not include “style of dress or sexual orientation,” it was possible that the plaintiff could still state a claim based on the possibility of disparate treatment, that is, that the bank treated “a woman who dresses like a man differently than a man who dresses like a woman.”262

That same year, the Ninth Circuit in Schwenk v Hartford263 took a different approach by explicitly embracing a gender-stereotyping approach in the case of Crystal Schwenk, a transgender female.264 In that case, Schwenk sued under the Gender-Motivated Violence Act265 on the grounds that a state prison guard in an all-male penitentiary had targeted and attacked her after he realized that she identified as a female and had adopted a feminine appearance.266 The Ninth Circuit explicitly adopted the reasoning of Price Waterhouse, concluding that the evidence showed that “[the guard]’s actions were motivated, at least in part, by Schwenk’s gender—in this case, by her assumption of a feminine rather than a typically masculine appearance or demeanor.”267 The Ninth Circuit concluded that discrimination against transgender females “as anatomical males whose outward behavior and inward identity [do] not meet social definitions of masculinity” could constitute actionable sex discrimination.268 (Note, here, that Schwenk received protection as an assigned male, rather than a transgender female.)

These cases raise a foundational question that continues even today: whether, under Title VII, it is preferable for the plaintiff to claim that the discrimination is based on his or her assigned birth sex or that the discrimination is based on his or her own gender identity. In other words, can a plaintiff successfully employ both the morphological and performative models in a single case? For example, if a state-assigned male transitions to a transgender female and faces discrimination during that transition, is it preferable for her to claim discrimination based on her identity as an effeminate male, or as a gender nonconforming female? In many cases, it seems as though the former approach has a greater potential for success, despite the unfairness of the imposed classifications altogether under the numerus clausus of sex.269 As Stevie Tran and Professor Elizabeth Glazer have pointed out, the result of these cases essentially requires a kind of “perfect” gender nonconformity—that is, individuals must “behave like women . . . [while] ‘really’ [being] . . . men.”270

Further, there remains some uncertainty over whether Price Waterhouse has overruled the prior reasoning of cases like Ulane, which distinguished discrimination based on transgender identity from other types of sex discrimination. It also took some time for the reasoning of Schwenk and Rosa to be adopted in the Title VII context. However, case law eventually began to turn toward employing a gender-stereotyping rationale to protect transgender plaintiffs. For example, in Smith v City of Salem, Ohio,271 a transitioning female firefighter was subjected to a number of psychological evaluations and ultimately suspended.272 Although the lower court dismissed the plaintiff’s claim on the grounds that she was discriminated against based on her transgender status, not her sex, the Sixth Circuit reversed the decision, noting that Ulane’s reasoning had been “eviscerated” by Price Waterhouse.273 The court stated that “a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.”274 The Sixth Circuit defined “transsexuality” as someone who “fails to act and/or identify with his or her gender” and found that discrimination on these grounds “is no different from the discrimination” in Price Waterhouse, the case in which the Supreme Court held that a valid Title VII claim existed for a plaintiff “who, in sex-stereotypical terms, did not act like a woman.”275 The court reasoned that Smith was discriminated against based on “his failure to conform to sex stereotypes by expressing less masculine, and more feminine mannerisms and appearance.”276

While Smith represented perhaps the most sweeping critique of the earlier Title VII reasoning on transgender discrimination, it does, however, offer a few causes for concern. First, by defining transgender identity as something intrinsically gender nonconforming, the case raises the question of how the law should respond when a transgender person does not engage in gender nonconforming behavior (such as, for example, a transgender woman who is fired due to animus against her transgender status, as opposed to her appearance in the workplace).277 In such a situation, there is the risk—always present—that her case would be characterized as falling within the case law that holds that discrimination on the basis of one’s transgender status is not discrimination based on sex.278 Because of these holdings, transgender individuals face an added degree of vulnerability in stating a claim for discrimination, because an employer could argue that the person was victimized based solely on her transgender status, rather than her gender nonconforming behavior. For example, at least one district court has maintained that Ulane is still good law and granted the defendant’s motion for summary judgment in a case in which the plaintiff failed to make a gender stereotyping claim but instead argued that she was terminated because of her intent to change her sex.279

There is a further issue that is significant, however. The gender-stereotyping approach, in both theory and practice, actually reifies and entrenches the very stereotypes regarding gender that Title VII is supposed to resist.280 As one scholar has explained, this approach forces courts to employ antiquated notions of sex and gender roles in order to determine gender “nonconforming” behavior.281 Moreover, to win under Title VII, the plaintiff has to construct her identity as no different than any other gender nonconforming person—thus ignoring or erasing her transgender status altogether. A transgender woman, for example, has to construct a case that represents her as a gender nonconforming male, instead. Consider Smith as an example—the plaintiff, a transgender woman, made the decision with her lawyer to refer to herself as a male and use male pronouns throughout the litigation, even though it is likely that Smith saw herself completely differently.282

2. An intrinsic approach: Scripting “based on sex.”

A second approach takes a more literal view of transgender discrimination by viewing it as per se violative of Title VII.283 I call this approach “intrinsic” because it defines discrimination against transgender individuals as inherently related to their sex (as opposed to their gender expression). In Schroer v Billington,284 the employer, the Library of Congress, rescinded a job offer to a highly qualified transgender applicant after she informed the Library of her intention to transition from a male to a female when the job began.285 After she met with a Library representative in order to explain her transition and assure the Library that her transition would not interfere with any of the aspects of her job, the Library rescinded her offer the following day.286

The district court concluded that it did not matter whether the decision was made because the employer perceived Diane Schroer as an “insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.”287 Rather, the main issue for the court was that discrimination on the basis of transitioning from one sex to another is literally discrimination on the basis of sex.288 Consider the court on this point:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.” No court would take seriously the notion that “converts” are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.289

An Equal Employment Opportunity Commission (EEOC) opinion established a similar approach.290 In that opinion, the EEOC clearly stated that, when an employer discriminates against a person because of his or her transgender status, that employer has engaged in discrimination “related to the sex of the victim.”291 For these purposes, the EEOC expressly stated, it does not matter whether it is because the individual has expressed his or her gender in a nonstereotypical fashion, or because the employer is uncomfortable with the process of gender transition, or because of some discomfort with an individual’s transgender identity. Each of those narratives, for the EEOC, is enough to establish discrimination based on sex.292

The Eleventh Circuit, too, reached similar conclusions regarding a transgender woman who had been diagnosed with “Gender Identity Disorder” and was taking steps to transition to a female under the advice and supervision of her health-care providers.293 She was terminated based on “the sheer fact of the transition,”294 which the supervisor described as “inappropriate,” “disruptive,” “unsettling,” and “unnatural,” referring to her as a “man dressed as a woman and made up as a woman.”295 When the head of her office learned of her transition, he called her into his office to ask whether she had “formed a fixed intention to become a woman.”296 When she answered in the affirmative, she was terminated.297

The Eleventh Circuit reasoned that “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes,” noting the “congruence between discriminating against transgender . . . individuals and discrimination on the basis of gender-based behavioral norms.”298 Significantly, the court also concluded that there is essentially no difference between discrimination against gender nonconforming behavior experienced by a nontransgender person and discrimination experienced by a transgender person, concluding that they “differ in degree but not in kind.”299

In each of these opinions, we see a consistent theme: the idea that gender transition, and discrimination on that basis, constitutes literal discrimination based on sex. Yet, commentators have noted that this conclusion directly conflicts with prior law such as Ulane, which expressly concludes that individuals who are undergoing gender confirmation surgery are not protected under Title VII on that basis.300 At this date, it is not clear whether a plaintiff must allege a gender-stereotyping theory in addition to alleging simple sex discrimination, because courts tend to look for evidence of both kinds in order to state a claim.

But this approach, too, has flaws. One commentator, Jason Lee, has suggested that this approach, while helpful in addressing “first generation” discrimination, which involves overt acts of exclusion—comments, segregation, actions clearly based on animus—is not helpful in addressing “second generation” discrimination, which takes the form of “us[ing] unprotected traits as proxies for discrimination” (such as using grooming codes instead of discriminating against a group directly).301 In such cases, it is difficult to prove that the rule was motivated by transgender animus, a point that I discuss further in the next Part. Courts have, for example, upheld grooming standards even though they affect transgender employees in a specific way.302

Perhaps the largest problem with the intrinsic approach, however, involves its inordinate emphasis on a surgical imperative of gender transition in fashioning a claim under Title VII. Of course, it is true that most of the case law involves individuals who wish to transition from one sex to another. However, this misses the myriad other ways in which transgender individuals relate to their own identity and presentation. Empirical evidence shows that a significant portion of people who identify as transgender do not want to identify, full-time, in the sex opposite that which they were assigned at birth.303 In fact, large numbers of transgender-identified individuals do not plan or desire to have gender confirmation surgery.304 Again, however, the numerus clausus of sex rears its head, due again to the law’s insistence on a polarity between male and female identities. In each of these examples, the fluidity of their identities can be unprotected by the law, leaving plaintiffs still vulnerable to discrimination.

In sum, while Price Waterhouse’s legacy has mostly offered significant change with respect to employment discrimination, it has not been extended to other areas that represent equally or more pressing needs for transgender individuals. Some of these more prominent issues include challenging placements in sex-specific facilities, enabling individuals to gain legal recognition of a change in gender, and acquiring coverage for gender-related medical care.305 Again and again, the term “biological sex” is used in ways that facilitate discrimination against transgender individuals. In 2001, for example, the Minnesota Supreme Court held in Goins v West Group306 that an employer who refused to allow a transgender woman to use the women’s restroom did not violate a Minnesota human rights statute that included protections based on gender identity.307 In that case, tellingly, the court found nothing objectionable about the employer’s delineation of restrooms based on “biological gender,” ruling that, unless a transgender woman could prove that she was “biologically” a female, the employer could deny her access to female restroom facilities.308 The reasoning in Goins was also adopted in a New York case involving a landlord who attempted to ban transgender people from using the building’s restrooms on the grounds that restricting such access based on whether a person is a “biological male” or a “biological female” did not violate the city’s human rights law.309 Other states have prohibited Medicaid funding from being used toward gender-related medical care.310 These limitations suggest that Price Waterhouse’s legacy is, at best, mixed.

III. Rescripting Gender(s)

Both models that I have discussed—the morphological model and the performative model—have serious shortcomings. While the morphological model focuses to an extreme extent on the presumption of fixedness and objectivity associated with assigned sex, the performative model, with its emphasis on the intangibility of gender performance, might overlook some of the material ways in which transgender individuals might approach the question of transition. Further, the case law that surrounds gender nonconforming behavior, while offering some cause for optimism, still risks reifying, rather than challenging, basic gender stereotypes based on the continuing vitality of the numerus clausus of sex. As I argue, this is the case in three areas in which law interfaces with gender nonconformity: in some kinds of gender nonconforming behavior (for example, cross-dressing), in sex-segregated institutions, and in bathroom facilities.

A. Implications of the Morphological and Performative Models

On a very basic level, as I have suggested, the morphological model generally allows for sex reclassification as long as the person successfully “passes” in their chosen sex (through either surgery or a reliance on hormones), leaving the rigid gender binary essentially intact and unchallenged. By implicitly requiring transgender plaintiffs to seek a gender dysphoria diagnosis and to undergo gender confirmation surgery, the morphological model fails to engage with the shortcomings of our system of gender classification and instead depicts transgender persons as deviants in need of medical care and intervention, rather than as the victims of gender prejudice. As Professor Andrew Gilden has eloquently observed, “If sex is the construction of gender norms, and sex remains unquestioned in transgender legal discourse, then this discourse similarly fails to question the ways in which restrictive gender norms construct the category of sex.”311 The morphological model, in some ways, relocates the blame for “deviance” onto the transgender body, as opposed to society’s adherence to the binary model, which is the underlying cause of harm.312 Consider Professor Katherine Franke’s insightful treatment of the Rosa case, in which she links the treatment of transgender persons in the workplace to all gender stereotypes:

Rather than understand Rosa’s experience as lying well beyond the bounds of laws relating to sex-stereotyping, she is better understood as a sort of canary in the sartorial coal mine: She was simply the most visible victim of systemic gender norms that regulate all of us in the ways in which we coherently present ourselves to the world as “men” or “women.”313

In another very powerful piece, lawyer Sharon McGowan recalls her experiences representing Schroer, who told her, “I haven’t gone through all this only to have a court vindicate my rights as a gender non-conforming man.”314 Because the earlier case law tended to protect transgender women as gender nonconforming men, McGowan explained that lawyers framed their cases in the way most likely to fit Price Waterhouse’s theory.315 Yet this strategy, understandably, makes transgender advocates deeply uncomfortable; as McGowan explained, “It felt as though we would be disavowing Ms. Schroer’s identity as a woman, and accepting society’s discriminatory conception that transgender women are just men who want to dress as women.”316 Schroer’s lawyers instead utilized another strategy: they argued that Schroer had a female gender identity, but was likely to be perceived as a male at the time of her hiring based on her appearance and name.317 Yet, tellingly, even this framing demonstrates the limitations of antidiscrimination law.

1. Materiality and morphology.

Consider, for example, a legal essay entitled Transitional Discrimination.318 In that essay, the authors, Professors Glazer and Zachary Kramer, employ what they call a “transitional identity” model in describing transgender individuals.319 They argue that “[a] transgender person has a transitional identity because the person’s identity has aspects of the gender or sex from which the person is transitioning as well as the gender or sex to which the person will transition.”320 They describe transgender identity as an identity that is “inchoate, in that the identity does not express fully any of those extant identities.”321

While I agree with Glazer and Kramer that some transgender plaintiffs view their identities as “in transition” in terms of crossing over to another gender or sex,322 I think it may be inaccurate to categorize all transgender plaintiffs in this manner. Indeed, for some transgender individuals, as I have suggested, their choices to cross-dress or evoke gender nonconforming behavior might not rise to the level of a “transitioning” practice; it might be an intermittent choice or perhaps some other form of individualized gender expression. But under the binary system, these individuals might not receive recognition, because the model suggests that transgender persons must, in some fashion, be in the process of crossing over, somewhere along the spectrum from male to female, for their claims to be intelligible.

These outcomes suggest that gender expression can almost never be a matter of volitional choice—although sex can be reversed, gender identity must remain stable. As Professor Currah has pointed out, within this discourse, “[t]he relation between sex and gender is reversed: biological sex characteristics are cast as aspects of genders, and largely mutable ones at that. It is gender identity and often even expressions of gender identity, however, that are described as unchangeable, set from an early age.”323 Missing from this description is the reality that many individuals lead gender nonconforming lives deserving of legal protection from discrimination and yet do not necessarily wish to transition into the opposite sex.

Consider, for example, the data produced by the landmark National Transgender Discrimination Survey, performed in 2008 and then again in 2015.324 In 2008, four categories of identity were presented in response to the question of the survey respondent’s primary gender identity: “male/man”; “female/woman”; “part time as one gender, part time as another”; and “a gender not listed here.”325 Among the respondents, 20 percent listed themselves as occupying the third category, and 13 percent listed themselves as falling into the last category, describing themselves as “‘genderqueer,’ ‘queer,’ . . . ‘neither,’ ‘both,’ ‘non-binary,’ ‘androgynous,’ ‘gender does not exist,’ and ‘gender is a performance’ (a specific reference to Judith Butler’s work).”326 By 2015, although 88 percent of respondents described themselves as transgender, 12 percent described themselves in some other fashion.327 In addition to terms like “transgender,” 20 percent to 30 percent described themselves as nonbinary, genderqueer, or gender nonconforming or gender variant.328 But even noting the role of these terms, it is still important to recognize how different communities within the transgender umbrella can strive for alternate forms of legal recognition and also face disproportionate effects from the numerus clausus of sex.

In contrast, one might offer a similarly situated criticism of the performative model, though in reverse. While the performative model does appear to take issue with the foundational import of the binary systems of sex and gender, one might argue that the performative model, in its attempt to normalize all forms of gender nonconformity—drag, cross-dressing, gender transition, and the like—tends to overlook some of the key differences between these experiences. As Professor Weston points out, “Performatively gendered bodies are like onions whose layers peel back to reveal no core truths, no seeds of authenticity, no deeply buried masculinity, femininity, or for that matter, hermaphroditic sensibility. . . . There is no ‘there’ there; the layering, like the performance, is the thing.”329

Consider, for example, the contrast between Professor Butler’s work and the work of Professor Henry Rubin, who argues that identity is Janus-faced: it is both socially constructed and absolutely real at the same time.330 In this sense, as Rubin explains, it matters not how constructed an identity actually is, because it always feels real to the person who claims it.331 According to Rubin, some transgender men describe their bodies as the products of an “expressive error” (“ranging from the belief that God had made a mistake, to genetic mutations, to chemical imbalances, to underdeveloped or hidden male anatomy”), in which their innermost core conflicts with their bodily attributes.332 Commenting on the absence of transgender male visibility and an increasing politicization within transgender scholarship, Rubin observes, “[M]y fear is that in the name of politics, those transsexuals who do favour surgery or who are not homosexual or who claim an essential identity (apart from what they tell their physicians) will be considered illegitimate transgenderists.”333 In making this observation, Rubin notes the risk of replicating hierarchies within a diverse community.334

In later works, such as Bodies That Matter, Butler notes the materiality of the body, but maintains that gender is socially constructed and rife with the possibility for recoding and resistance.335 Yet one of the most powerful critiques of the performative model, offered by both transgender advocates and scholars outside the law, echoes Rubin’s concern: the gender-stereotyping theory may overlook or devalue the importance of gender identity and the importance of changing the material body. Professor Levi, for example, criticizes Butler and others for “the post-modern perspective that all gender is socially constructed and that there is nothing essential about gender identity.”336 Taken to its logical conclusion, she argues, a postmodern view of gender suggests that “transsexualism” does not exist because masculinity could be redrawn to include female parts, and the reverse.337 Others note that Butler’s later works often fail to include dissenting perspectives, and still others argue that “in queer and feminist discourses on ‘transgender’ a history is being written of and for trans people, one that privileges an abstracted rubric of identity and with it the experiences and concerns of middle-class and largely white, university-based and queer-identified trans people.”338

2. Rescripting gender expression.

Perhaps the most demonstrative area of underinclusivity stems from the case law regarding cross-dressing. Consider Oiler v Winn–Dixie Louisiana, Inc:339 in 1979, Peter Oiler was hired by Winn-Dixie as a loader and later promoted to be a truck driver.340 Oiler was a heterosexual man, married since 1977, who identified as a male cross-dresser, and who had no intention to take feminizing hormones or to transition, but who instead demonstrated a motivation to cross-dress in order to express “a feminine side” and for other, erotically motivated reasons.341 Oiler wore female clothing, wore makeup, and adopted a female persona in public one to three times per month, but never at work.342 However, after he told a supervisor that he cross-dressed, his supervisor and the president of the company decided to terminate him after consulting the company’s lawyer and asking Oiler to resign.343

In the case, the court granted summary judgment to Winn-Dixie, rejecting Oiler’s claims.344 It noted, after a thorough review of the prior case law, including Ulane, that Title VII was not “meant to embrace ‘transsexual’ discrimination, or any permutation or combination thereof.”345 The court stated that it did not believe that the plaintiff was discharged “because he did not act sufficiently masculine or because he exhibited traits normally valued in a female employee, but disparaged in a male employee.”346 Rather, the court explained that he was terminated due to his “disguise” as a woman:

The plaintiff was terminated because he is a man with a sexual or gender identity disorder who, in order to publicly disguise himself as a woman, wears women’s clothing, shoes, underwear, breast prostheses, wigs, make-up, and nail polish, pretends to be a woman, and publicly identifies himself as a woman named “Donna.”347

The court underscored that, in its view, the plaintiff was not discriminated against because he was perceived as being insufficiently masculine or because he appeared to be effeminate. “The plaintiff in [Price Waterhouse] may not have behaved as the partners thought a woman should have, but she never pretended to be a man or adopted a masculine persona,” the court observed, thus distinguishing the two cases.348

Cases like Oiler suggest that, when an employer can offer a seemingly nondiscriminatory reason for its decision (even one that draws a facile distinction between “disguising” oneself as the opposite sex and resisting gender stereotyping), courts will defer to the employer’s determination. The effect simply rescripts the plaintiff into a binary system of sex identification, the numerus clausus principle. Such deference to the employer is particularly striking in cases that involve grooming and dress codes, which have been used to uphold terminations of female employees, transgender employees, and employees of color.349 Such cases, in many ways, personify the darker side of gender performance regulation, because they overwhelmingly tend to defend an employer’s right to control the expression and performance of employees, even when the guidelines are sex and gender specific.350

In one example, a transgender female plaintiff with gender dysphoria began to change her appearance at work to appear more feminine by wearing clear nail polish and mascara, growing out her hair, and trimming her eyebrows.351 She also began to use the name Amber Creed.352 The defendant maintained that it had received over fifty complaints about Creed’s appearance, and eventually told her that she was not in compliance with the dress code and grooming policy of Family Express.353 When Creed explained that she was transgender and was going through her transition, the employer allegedly replied by asking “whether it would kill her” to appear masculine for eight hours a day; she was eventually told that she had twenty-four hours to decide whether she would report to work in a more masculine manner.354 When she allegedly replied that she could not, she was terminated.355

Interestingly, the employer argued that it did not demand that Creed present herself in a less feminine manner; it reported that the only demands that it made of Creed were that she cut her hair and stop wearing makeup and nail polish.356 The court, in turn, granted summary judgment to the employer, finding that the employer did not discriminate against Creed based on her sex, but instead fired her because she had failed to comply with its sex-specific grooming and dress codes.357 “While [the human resources director’s] comments, in particular, were insensitive of Ms. Creed being in the process of coming to terms with her gender identity, these comments in and of themselves don’t establish that Family Express fired Ms. Creed because she wasn’t ‘male’ enough.”358 By drawing a line between prohibited gender stereotyping and permitted dress and grooming code regulation, the court enabled the protection of the codes to take precedence over prohibiting gender discrimination under Title VII.

Similar reasoning has been adopted in other cases, as well. In 2005, a case emerged involving a transgender bus operator, Krystal Etsitty, who was diagnosed with what was then known as GID and was transitioning from male to female through the use of hormones.359 The employer subsequently asked her about her transition process and expressed concern about potential liability resulting from her using a female restroom facility.360

The court granted summary judgment to the defendants on the ground that “transsexuals” are not a protected class under Title VII, and explicitly disagreed with the reasoning offered by the Sixth Circuit in Smith:361

There is a huge difference between a woman who does not behave as femininely as her employer thinks she should, and a man who is attempting to change his sex and appearance to be a woman. Such drastic action cannot be fairly characterized as a mere failure to conform to stereotypes.362

It rejected a gender stereotyping theory, noting that the only concern involved one of restroom use, which it distinguished from requiring the plaintiff’s appearance to conform to a particular gender stereotype.363 Still other cases have come out in the same manner.364

3. Transgender equality and sex-segregated spaces.

As Professor Tobias Wolff persuasively argues, and as the case law demonstrates, opponents of transgender equality have also focused their resistance to antidiscrimination efforts around a single issue: the bathroom.365 When the Employment Non-discrimination Act (ENDA) (a bill that would have prohibited employment discrimination on the basis of both sexual orientation and gender identity) failed in Congress a few years ago, proponents of the bill explained that the protections for gender identity, and in particular the anxiety over bathroom use by transgender persons, were the reason for its failure.366 As Wolff explains, the image of bathroom use illustrates an underlying anxiety over the body that has played a powerful role in forming opposition to civil rights reforms. Within this bathroom-obsessed strategy, Wolff writes, “this aggressive form of erasure takes shape around anxiety over the body, for it is the transgender body itself that the antagonist wishes to erase.”367 Wolff points out that, like the anxieties expressed by white individuals about including persons of color in swimming pools, or the fears expressed by heterosexuals about showering with gay people when the Don’t Ask Don’t Tell Act368 faced repeal, anxieties about the body have remained a central theme in opposition to civil rights reforms.369

Again, the materiality of the body remains a central concern. Even the proposed ENDA bill contains an exception for grooming standards despite its transgender-inclusive language.370 The bill essentially requires that the individual has already undergone gender transition or plans to transition, and then enables employers to impose rigorous grooming standards on those individuals. Those standards, again, would likely have the perverse effect of reimposing the very same standards of masculinity and femininity that Price Waterhouse dictated against.

As Wolff eloquently recounts, protections on the basis of gender identity have been labeled as “bathroom bills” by astute opponents who have realized that honing in on gender panic can breed powerful opposition.371 In Connecticut, opponents of a bill protecting gender identity claimed that the bill “would permit ANY man who claims female ‘gender identity’ even if he just wears a dress cannot [sic] be excluded from any job statewide, and MUST be given access to women’s facilities, including public and private women’s restrooms, locker rooms and showers.”372 As Wolff explains, these campaigns play into the fear that women and children are at risk for rape or sexual assault; others suggest a risk of “peeping Tom” behavior.373 Yet both fears are unsubstantiated; there is absolutely no evidence to suggest that gender identity protections have led to any predatory behavior.374

Nevertheless, these unsubstantiated fears informed the passage of HB2 in North Carolina and the lawsuit filed by eleven states against the Obama administration’s interpretation of Title IX to require access to restrooms that were consistent with a person’s gender identity, alleging that the guidelines “conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over common-sense policies protecting children and basic privacy rights.”375 HB2 essentially requires individuals to use restrooms that are consistent with their “biological sex,” defined as “[t]he physical condition of being male or female, which is stated on a person’s birth certificate.”376 The bill has the effect of treating transgender employees whose gender identities do not match their assigned sexes differently than cisgender employees, who are able to access restrooms that are consistent with their gender identities.377 It also has the effect of putting transgender individuals in an “impossible” catch-22: a separate state law requires individuals to undergo gender confirmation surgery in order to change their birth certificates; but they are required by medical recommendations to live for at least twelve months in the gender roles that conform with their identities, including using the restrooms consistent with those identities, prior to receiving such surgery.378

Yet despite recent jurisprudence that has found gender identity protections not to be foreclosed by a previous focus on the original definition of assigned sex,379 some courts have come out differently. Most recently, a district court in Texas that addressed the DOJ guidelines interpreting Title IX drew a clear line between gender identity and state-assigned sex, finding that “the plain meaning of the term sex . . . meant the biological and anatomical differences between male and female students as determined at their birth,” emphasizing the historical focus on the physiological and reproductive differences between males and females.380 It noted, for example, that the text and regulations surrounding the construction of restroom and locker facilities focused on recognizing the need for “separation from members of the opposite sex, those whose bodies possessed a different anatomical structure,” due to concerns about personal privacy.381 In reaching these conclusions, it seemed that the court drew a clear line between gender identity and assigned sex, finding a more inclusive interpretation to be wholly outside “traditional biological considerations,”382 as well as “illogical and unworkable.”383

Finally, the need to protect the self-determination of transgender employees is particularly acute beyond the workplace, particularly in cases involving institutionalized settings (prisons, youth facilities, and the like), for a host of distributive reasons.384 Many sex-segregated facilities (shelters, foster care, group homes, psychiatric facilities, prisons, etc.) have particular racial dimensions due to the comparably higher concentration of persons of color.385 In such facilities, individuals are subjected to an astonishing array of surveillance and regulations on dress, behavior, and access to entitlements.386 As Professor Russell Robinson has pointed out, sex segregation in such facilities also raises intrinsic questions of paternalism and misidentification.387

Prisons, perhaps more than any other sex-segregated facility, routinely struggle with the management of gender identity and expression. Court cases have long tended to diverge on the question whether these facilities are required to provide forms of accommodation for individuals diagnosed with gender dysphoria. In one recent case, the Fourth Circuit reversed a district court’s dismissal of an Eighth Amendment claim brought by a transgender woman.388 In that case, the plaintiff had a GID diagnosis and overwhelming urges of “self-castration,” even though she had been allowed to dress in feminine attire and was provided with psychological counseling and hormone therapy.389 Yet her request for gender confirmation surgery was characterized by the district court as a “choice of treatment,” rather than as a necessary part of her treatment protocol.390 The Fourth Circuit reversed, noting that the plaintiff had stated a claim under the Eighth Amendment based on the prison officials’ “deliberate indifference” to her serious medical needs.391

Today, more courts have adopted this view.392 Seven US Courts of Appeals and the Supreme Court recognize that gender dysphoria is a serious medical need.393 However, while Federal Bureau of Prisons policy now authorizes the use of hormones, officials may fail to consider other modes of treatment.394 In addition, inmates who are not diagnosed with gender dysphoria may not receive the benefit of an Eighth Amendment imperative to receive medical care.395 Gender confirmation surgery is not required, and hormone treatments are available only to those who receive a diagnosis.396

The only recourse, then, for inmates in such situations is to depict their condition as an extreme condition. Yet even when inmates are able to do so, and to attain hormone treatments, legislatures have presented obstacles. In Wisconsin, for example, even though the Department of Corrections had a previous practice of providing hormone treatment to inmates diagnosed with GID, the practice was abruptly terminated after the legislature passed the Inmate Sex Change Prevention Act,397 which forced the department to cease providing such treatment.398 The Act was later found to be unconstitutional under the Eighth and Fourteenth Amendments after a series of transgender plaintiffs decided to file a legal challenge.399 However, the evidence submitted, like much of the evidence surrounding gender dysphoria, further underscored a rigid gender binary that depicted the plaintiffs, rather than the system of classification itself, as impaired.400

B. Toward a Model of Gender Pluralism

Both the performative and morphological approaches, taken together, underscore the need for a more capacious approach to gender regulation. At best, the law treats state-assigned sex as a spectrum, a crossing from male to female or the reverse, placing transgender individuals somewhere along the transition in between.401 Yet, as I and others have suggested, the pluralism represented by the transgender community—some who see themselves as entirely male or female, others who see themselves as combining aspects of both, some who see themselves as falling completely outside the gender binary, others who identify as genderqueer, and still others who reject these terms entirely—is at times left unrecognized by the numerus clausus of sex.402

Years ago, Professor Mary Dunlap noted, “If the individual’s authority to define sex identity were to replace the authority of law to impose sex identity, many of the most difficult problems currently associated with the power of government to probe, penalize, and restrict basic freedoms of sexual minorities would be resolved.”403 As Currah has brilliantly noted, Dunlap’s transformative project has become obscured, largely due to the deployment of legal arguments that serve to reify, rather than challenge, the dominance of gender norms.404 The result of this approach risks what Currah describes as a “pyrrhic” victory, one that disadvantages not just gender nonconforming and transgender individuals, but many others who fall outside those categories as well.405

Throughout this Article, I have argued that the numerus clausus of assigned sex leads to a polarity between male and female classification, one that forecloses alternative identity formations under the law. Is it possible, however, to reform the numerus clausus principle so that it can take into account the potential for alternatives?406 The answer, I would argue, is that this is definitively possible by adopting a model of gender pluralism.407

In the property context, a pluralist framework, as described by Professor Nestor Davidson, recognizes the varied, sometimes conflicting crosscurrents that animate the potential dynamism in property law, recognizing a diverse array of interests, communities, and institutions.408 Others, too, take the view that, while the numerus clausus principle represents a set of shared understandings of the basic forms of property, those forms can expand and change through legislative intervention409 or common-law reformation.410 Consider, for example, a critique of the numerus clausus principle put forth by Professors Henry Hansmann and Reinier Kraakman, who suggested that a lower level of verification, rather than standardization, should be the goal of property regulation.411 Here, at least in the realm of gender and sexuality, there are strong possibilities for reform through legislation or private contractual solutions that dilute the overwhelming monopoly power of the state in defending the gender binary. As Professors Davina Cooper and Flora Renz note, “civil society organizations may not only recognize genders unrecognized by state law; they may also recognize, and so give, gender a classed, racialized, sexual, and religious specificity in contexts where state law claims only to notice broad abstract categories.”412

As scholars have noted in the numerus clausus system, the state frequently invokes and relies upon preexisting categories; as Davidson writes, “The state limits the forms of property self-consciously at times by explicitly pruning the extant forms . . . [and at other times] refuses to recognize new forms passively.”413 Here, the immutability of standardization can be inappropriate for the formation of identity, expression and community.414 Yet others, like Professor Hanoch Dagan, argue that contract law, rather than property, should enable citizens to opt out of the rules of property.415 Whereas property principles relate to a wide variety of social and nonmarket interactions, thus necessitating a set of shared understandings and standard formations, contract law is built upon principles of freedom in crafting “one-shot” market transactions “in an ad hoc fashion.”416 Private law, here, can be pluralist in nature, Dagan explains, participating “in the state’s obligation to empower people to make real choices among viable alternatives, and thus be the authors of their own lives.”417

The preceding principles, while admittedly abstract, also have legal purchase, because they provide us with a solid foundation from which to explore the potential of gender pluralism as a replacement for the binary system that we have grown accustomed to. More recently, scholars have embraced the possibility of offering menus of options for antidiscrimination in the workplace, while “setting altering rules that make it easier for private parties to contract toward more preferred alternatives.”418 Consider, for example, the possibility of contractual alternatives for self-identification, like the Facebook example in the Introduction, which offer some divergent possibilities to the numerus clausus of the gender binary system. A notion of gender pluralism would normatively embrace gender nonconforming behavior, not just individuals who wanted to transition from one sex to another.419 It would also demonopolize the classificatory power of the state in determining sex or gender identity. Taking this concept seriously also requires broad and creative thinking about how other jurisdictions have dealt with similar issues and about how to dilute the state’s power in determining sex classifications altogether.

As I have noted, data suggest that the gender binary might be wholly inapposite to large numbers of individuals who face discrimination.420 The concept of gender pluralism, I would argue, embodies a conceptual model that echoes the basic presumptions present in intellectual property law: the nonrivalry and nonexclusivity between male and female. Here, I do not want to suggest a perfect complementarity between the notion of property and intellectual property and the regulation of sex and gender. Instead, I want to suggest that there are key areas of resonance between the regulation of resources and the regulation of identity, and that some of the insights offered by the former can influence the way that we think about the latter. The language of property embraces tangibility and the material body, leaving room for a strict set of norms regarding gender transition. However, the language of intellectual property embraces the expressive potential of human behavior and identity formation, leaving room for other forms of gender nonconforming behavior to be protected by the laws that govern gender discrimination.

1. Sex without scarcity.

The idea of a more plural approach to gender regulation has long been a part of the transgender advocacy community—the law has simply failed to recognize its potential. More than thirty years ago, for example, a variety of groups—including cross-dressers and other transgender individuals—had begun to question the appropriateness of the diagnostic categories under which they were described.421 In the transgender world, the “medical” model of transgender identity persisted as the dominant model until Professor Sandy Stone published an essay titled The Empire Strikes Back: A Posttranssexual Manifesto.422 The piece was an eloquent and expansive essay that largely argued that the narrow, medicalized requirements for gender reassignment actually forced individuals to essentially lie to their doctors in order to satisfy these requirements and to fit the common medical constructions associated with gender dysphoria and the binary model.423 In part due to Stone’s prominent critique, the model shifted from a medicalized view of transgenderism to a gradual trend toward building a greater community for transgender individuals (who had been previously pressured to assimilate).424

With this paradigm shift, a new model, a transgender model, was born, one that embraced the need for gender differentiation and pluralism and that also empowered trans individuals to view themselves as healthy, whole individuals. As Dallas Denny observes:

Gender-variant people were no longer forced to choose restrictive transsexual or cross-dresser or drag queen/king roles, each with its own behavioral script. Suddenly it was possible to transition gender roles without a goal of genital surgery, to acknowledge one’s gender dysphoria and yet remain in one’s original gender role, to take hormones for a while and then stop, to be a woman with breasts and a penis or a man with a vagina, to blend genders as if from a palette.425

In line with these observations, empirical research has shown an accompanying diversity of body modification choices within the transgender community—some individuals desire surgery, others take hormones, and others choose to alter their hairstyle or makeup choices, bind their chests, or do nothing at all.426 Just as there is not a single age for coming out, transgender people discover their self-identity at different points along their lives—some know very early in age, while others know their gender only years later.427

Perhaps looking to recent scholarly work on pluralist rulemaking might lead to some insights into what a better model might look like. In one example, Professor William Eskridge describes how family law has increasingly moved from a set of mandatory rules governing marriage to a system that includes a broader focus on “guided choice,” leaning more heavily toward default rules with override options instead.428 While I am clearly oversimplifying for the purposes of this Article, my primary normative suggestion, here, would be to adopt a similar framework for the state’s gender assignment system: Why not also allow for default rules that can be overridden or altered in cases that are necessary or justified? In other words, just like the concept of increased pluralism in family law, which now provides individuals with a menu of options to define a family,429 the law should act to embrace the same concept here.430

Legally, the first place to start in building a gender pluralism model is to explore deregulation.431 Here, much of my normative analysis echoes part of Professor Cruz’s groundbreaking article, Disestablishing Sex and Gender.432 As Cruz writes elsewhere, “The Constitution could be understood to protect individuals’ free exercise of gender, as well as to require the disestablishment of sex and gender.”433 Cruz’s proposition, which parallels the constitutional treatment of religion, has both affirmative and negative aspects to the approach of regulating gender. On the one hand, he proposes not only “disestablishing” gender, but also enabling an affirmative right to the free exercise of gender at the same time.434 Cruz advocates, for example, precluding the government from forcing a transgender person to identify with an assigned sex that does not represent how they see themselves.435 Here, Cruz advocates for a principle of “inclusive neutrality,” which would create, essentially, a public realm in which gender divisions are not reinforced (or enforced), enabling all individuals, including intersex and transgender persons, to self-identify and reducing the power of the state to use its own criteria to determine sex.436 Cruz also argues for an approach he calls “separationism,” which aims to restrain government regulation in a certain area.437 Here, Cruz argues that questions of how many sexes there are, or how to distinguish between the sexes, would be matters left to the private realm instead of state regulation.438 A final area of Cruz’s approach is “accommodation”; here, Cruz advocates enabling government to protect the flourishing of gender in the private sphere.439 One application of this principle involves supporting employers who create inclusive restrooms, for example.440

Cruz’s disestablishment model does a brilliant job of clarifying how the state can refrain from overregulating sex and gender classifications. Admittedly, there are legitimate reasons for the state to record one’s assigned sex at birth,441 but there are equally legitimate reasons for enabling the state to broadly deregulate the way in which individuals can identify themselves. Moreover, in a gender pluralism model, the state essentially refrains from heavily regulating gender classifications unless there is a sound justification for doing so. But there are also affirmative actions that the government may take in order to avoid imposing gender scripting or sex classifications. Here, under the overarching aegis of individual autonomy, the law may take certain actions and interpretations that actualize the principle of gender self-determination.442

Aside from the realm of government regulation, there are three other avenues of change that also are worthy of analysis: common law, legislative intervention, and private contractual alternatives. Consider, for example, the common-law solutions offered by the case law discussed in this Article. Price Waterhouse and its progeny protected gender nonconforming behavior in the workplace, and Macy v Holder443 and other cases recognized discrimination against transgender individuals as intrinsically violative of Title VII.444 Both lines of cases clearly suggest that gender nonconforming individuals—not just individuals who are transitioning to members of the opposite sex—are automatically protected from workplace discrimination under Title VII.

Just as these cases can offer ways to move beyond the binary formations of the numerus clausus of sex, they also present new ways to reimagine gender pluralism through enabling individuals to create their own complex formation of identities.445 One option, therefore, could be to simply liberalize the existing standards for gender reassignment, thereby moving toward a default model with override potential. Significantly, in 2010, the State Department issued guidelines that permit trans citizens to obtain passports in their lived gender without having to submit a revised birth certificate, and without having to prove that genital confirmation surgery had been performed.446 This change enables applicants to bypass onerous state procedures or state laws that forbid gender reassignment.447 But the law can even go further than that, perhaps by allowing people to opt out of gender recognition altogether in specific instances, under the rubric of privacy protection, thus dismantling the binary system of classification.448

A related concept is the idea of a third classification for transgender individuals.449 The International Civil Aviation Organization (ICAO), which adopts international standards for customs and immigration, has established a separate category beyond male or female, called “unspecified.”450 In Australia, for example, gender confirmation surgery is not necessary in order to obtain a passport in the preferred gender: the individual must procure a letter from a medical practitioner that confirms either intersex status or some form of clinical treatment.451 Or, if they cannot acquire a letter from a doctor, they can apply for a Document of Identity with the gender left blank—one can get a passport with either M, F, or X (unspecified).452 Similarly, in New Zealand, gender confirmation surgery is not necessary—the applicant must provide documentation to the New Zealand Family Court demonstrating that the gender change “will be maintained.”453 In order to receive an “X” designation, citizens must declare how long they have been living in their current gender status and promise that, if the gender identity changes in the future, they will file for a new application.454

In many writings about transgender individuals, the notion of a “third gender” was traditionally employed as a sort of “exotica, with little relevance to our ‘modern’ societies.”455 Today, however, more and more transgender writers are employing the term to denote those who live outside the gender binary; ironically, the term has become more popular at the same time as anthropologists have found great fault with its use, because of the historical and cultural specificity associated with the term and because it tends to depict an overly rigid dichotomy between the West and the “primordial” East.456

Yet at its most useful, it illuminates what Professor Marjorie Garber calls a “space of possibility,” highlighting the point that some phenomena, like cross-dressing, should be understood on their own terms rather than through the lens of a binary system.457 As others argue, a third category can be empowering in its diversity:

Third sex/gender does not imply a single expression or an androgynous mixing. . . . The third gender category is a space for society to articulate and make sense of all its various gendered identities, as more people refuse to continue to hide them or remain silent on the margins. . . . If more transsexual people were able to identify as transgendered and express their third gender category status, instead of feeling forced to slot into the binary because of the threats of punishment and loss of social legitimacy, that third category would be far more peopled than one might imagine. People could be given legitimacy by this third category, if society recognized gender diversity alongside ethnic or religious diversity.458

Others, like Professor Terry Kogan, argue that the classification of a category like “other” should be dependent on personal choice, rather than biology, desire, or gender presentation.459 “Identifying oneself as ‘Other’ is a conscious choice by an individual to oppose the male/female, masculine/feminine dichotomies, and the oppressions that result from those dichotomies.”460

A third category, however, has costs. One of them is that it may be situated hierarchically underneath the categories of male and female; in other words, the “other” category could be treated just as such, as “other,” and given less weight and meaning.461 Even the use of a third gender, Evan Towle and Professor Lynn Morgan write, can be problematic because it suggests the relative inviolability of the first and second categories.462 As they argue, “The term third gender does not disrupt gender binarism; it simply adds another category (albeit a segregated, ghettoized category) to the existing two.”463 There is also the danger that even three forms will require an increasing level of standardization, just as the numerus clausus dictates. “The greater the number of genders,” cautions one scholar, “the greater their oppressive potential as each may demand the conformity of the individual within increasingly narrower confines.”464

One scholar has also advocated for the use of the term “trans*” with an asterisk to demonstrate an intrinsic critique of the notion of gender and sex categorization and emphasize those categories’ open-endedness.465 As explained, “The asterisk allows for the inclusion of many identities. Rather than enumerating a single subset of identities, the term trans* recognizes our incredibly diverse community and widely varying self-identification.”466 As one scholar has argued, if the law were more understanding that there are more than two possibilities beyond male and female, then the law might be more accommodating of that third choice.467

For these reasons, a pragmatic first step would be to liberalize rules regarding gender reassignment. Argentina has one of the most liberal rules, enabling people to change their gender on official documentation without first having to receive a psychiatric diagnosis of gender dysphoria, hormone therapy, surgery, or any other psychological or medical treatment or diagnosis.468 It also requires public and private practitioners to provide free hormone therapy or gender confirmation surgery for those who desire it, even if they have not reached the age of eighteen.469 Similarly, Mexico City’s civil code was amended in 2004 to enable transgender individuals to change the sex on their birth certificates upon request and without requirement of gender confirmation surgery.470 In Austria, a court invalidated the requirement of gender confirmation surgery for legal recognition, and in Sweden, a recent law allows individuals who have felt “for some time” that they were a different gender to change their birth marker.471 These changes are not limited to just a few countries; indeed, they provide the backdrop for many of the changes that are taking place in agencies and localities throughout the United States.472

A final example of constructive gender pluralist modeling comes from private industry: as mentioned earlier, Facebook added a customizable option with over fifty different terms that people can use to identify their gender (such as androgynous, trans woman, bigender, intersex, gender fluid, transsexual, and others), including three different choices of pronouns: him, her, or them.473 “There’s going to be a lot of people for whom this is going to mean nothing, but for the few it does impact, it means the world,” stated a transgender software engineer at Facebook who worked on the program and who changed her gender from female to trans woman the day it launched.474 Indeed, a central factor in motivating the change was the recognition that a binary system of gender failed to represent many individuals, including many who worked at Facebook.475

2. Protecting gender expression.

The previous Section outlined ways in which the law could liberalize the “transition” part of gender transition and thus deemphasize the importance of gender confirmation surgery and other tangible markers of transition. Yet, as this Article has suggested, simply lowering the requirements for state-recognized transition is not enough. The law needs to actively embrace those who are gender nonconforming—in short, it has to embrace the concept of gender as a nonrivalrous form of expression, rather than a static formation. What this means, more literally, is that the law must begin to embrace the concept of protection beyond the binary of male and female—and begin protecting those who transgress these boundaries. One simple, doctrinal tool to accomplish this goal is for legislatures to choose to enact protections on the basis of gender expression, rather than focusing on gender identity alone, in order to enable and protect a broader variety of gender nonconforming behavior.

Consider the difference between the two. Scholars describe “gender identity” as referring to “an individual’s emotional and psychological sense of being male or female,” noting that this is not always “the same as an individual’s biological identity,” whereas they define “gender expression” as “how a person represents or expresses one’s gender identity to others, often through behavior, clothing, hairstyles, voice or body characteristics,” something that can more easily change over time.476 Gender identity might be more internal, whereas gender expression is typically considered to be more external477 and, as I have suggested, does not always follow a binary formation.

The difference between the two terms can often result in significant differences in legal treatment, because existing law tends to emphasize protection on the basis of gender identity, instead of the comparably broader category of gender expression. As Dr. Matthew Waites has observed, “‘Gender identity’ tends to privilege notions of a clear, coherent and unitary identity over conceptions of blurred identifications.”478 Again, the focus on a stable, fixed binary can act to exclude those whose self-presentation is less fixed toward the polarities of male and female. Accordingly, because gender expression tends to be a more capacious category than identity, it can offer a more capacious form of protection for gender pluralism. The Yogyakarta Principles on Sexual Orientation and Gender Identity, for example, recognize that “the right to freedom of opinion and expression . . . includes the expression of identity or personhood through speech, deportment, dress, bodily characteristics, choice of name, or any other means.”479

Notably, these values—supporting a diversity of expression, avoiding enforced conformity—are very much at work in the regulation of intellectual property, particularly copyright law, which has long protected fair use rights of commentary, critique, and scholarship with the goal of protecting expressive diversity. Copyright law also places a great deal of emphasis on protecting the sanctity of authorship as an equally expressive part of the author’s personality.480 The law carves out a protective space to ensure that intellectual property retains a nonexclusive, nonsovereign character that comports with basic First Amendment values by enabling the flourishing of many different kinds of expressive freedom.481

By focusing on expression, as opposed to a traditional antidiscrimination model, we can begin to reform—and reimagine—our approach to gender regulation.482 Antidiscrimination models are caught within a tension between equality doctrine, which presupposes sameness, and the law’s treatment of sex, which is premised on differentiating between men and women.483 In traditional gender discrimination cases, the law is well established that government classifications based on sex are held to a standard of intermediate scrutiny, that is, that they must be substantially related to an important government purpose.484 As a result of this standard, which tends to implicitly presuppose the benign necessity for sex discrimination in certain circumstances, challenges to sex segregation have led to mixed results, sometimes upheld, and sometimes not.485

Although the Court has struck down sex segregation in state-run educational institutions because it was based on overbroad stereotypes about men and women, it has also, at other times, permitted segregation when it is tied to physical differences between men and women.486 In either case, however, the law starts from a presumption that sex classifications are sometimes necessary, particularly when the Court perceives an “actual” difference to exist between men and women, whether legislatively, biologically, or socially.487 Even in the absence of facially sex-based classifications, the law requires clear evidence of conscious discriminatory intent when there is some evidence of discriminatory impact, suggesting that gender discrimination is an anomaly.488

As others have observed, transgender activists are caught almost perfectly at the cross section between wanting to protect volitional choices regarding gender and being imprisoned by the unsatisfactory choices that law offers in protecting against discrimination.489 The dominant strategy, thus far, has been to add another category onto the variety of types of gender discrimination: “[T]o ask legislatures to define sex, gender, or even sexual orientation within nondiscrimination laws so as to explicitly include trans people, or to add a new category, usually gender identity.”490 Even in the most inclusive formulation of Title IX, in a case recently pending before the Supreme Court, earlier regulations promulgated by the previous Department of Education initially specified that an individual’s sex should be determined by reference to gender identity.491 Here, gender identity becomes the focus of interpretation, even though gender expression would be a much more inclusive category precisely for its ability to transgress simple categories of identity classification.

As I have argued in this Article, some courts might interpret gender identity narrowly, keeping a rigid binary system in place. This categorization may risk excluding those who demonstrate gender nonconforming behavior or expression, but who do not fall within a binary, identity-based structure. Put more directly, a focus on identity, while understandable, comes at the expense of honoring volitional choices regarding expression and also risks overemphasizing the binary nature of the sexes without paying due regard to those who fail to meet the heightened standards for gender reassignment.

Moreover, taken to its logical conclusion, one could plausibly argue that the standards of what qualifies as a gender identity are set so fundamentally high that they may unwittingly construct a picture of gender that overemphasizes, rather than diminishes, the importance of a binary system—thereby reinscribing the codes of gender, rather than challenging them altogether. The result, again, is an assimilationist bias that almost completely transforms the goals of the antidiscrimination movement altogether, reifying and replicating gender classification with every decision that works in its favor. As Jeffrey Kosbie has pointed out, an antidiscrimination model can (does not always, but can) run the risk of reinforcing the cultural binary.492 But it also, more importantly, overlooks the reality of gender expression altogether: that it can be fundamentally different, and broader, than gender identity alone, and that it encompasses a panoply of behaviors that are—in fact—far more pluralistic regarding expression than identity itself.

Here, a focus on expression starts from a wholly different vantage point. Rather than addressing the state as a benign protector, the state might be viewed through a comparably more suspicious lens.493 The concern about state regulation stems from a desire to protect expression and avoid the coercion of conformity, which is closely linked to traditional First Amendment jurisprudence.494 A more pluralist model would include the term “gender identity and expression,” which broadens its protections beyond gender dysphoric individuals alone.495 For example, “gender identity or expression” has been defined by one municipality as the following:

[A] person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression whether or not that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with a person’s sex at birth.496

Such statutes are drafted so broadly that they effectively eliminate any required relationship between assigned sex, gender identity, and gender expression.497 The result is a conscious delinking of sex from gender, and a conscious effort to integrate autonomy, self-determination, and authorship within both constructs by situating the protection of transgender individuals “as part of a strategy of gradually expanding the courts’ interpretation of gender as a legal category.”498

Of course, a related possibility is to simply interpret gender identity to include gender expression, instead of describing it as a separate category. For example, gender identity, at least in an earlier version of the ENDA federal bill, is defined as “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated sex at birth.”499 Unfortunately, the provisions regarding gender identity garnered the most opposition regarding ENDA’s passage; supporters were told to either drop the transgender-inclusive language or risk losing the passage of the legislation altogether. They opted for the latter, but the law has still not been passed.500

Despite the outcome of ENDA, this language appears extremely significant, because it extends a much fuller set of protections to transgender individuals, as well as everyone else, suggesting a kind of embrace of the pluralities of gender expression and identity.501 At the same time, however, as Professor Mary Anne Case has insightfully noted, ENDA’s inclusion of allowances for dress and grooming codes serves to reify the existing binary at the cost of those who may have the greatest need for inclusive protection.502

Again, the conflict between gender inclusivity and grooming codes may seem insurmountable. Yet Case, drawing on California state law, offers a solution by creating an allowance that enables “an employer to require an employee to adhere to reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an employee to appear or dress consistently with the employee’s gender identity or gender expression.”503 By reaching a compromise that enables an employer to regulate dress, but only insofar as it is consistent with gender identity and expression, it becomes possible to reach a fruitful, inclusive conclusion. “If the gender identity being accommodated is indeed, as suggested by the text of the California statute, nonbinary,” she writes, then it becomes “subject to an almost infinite range of possibly required accommodations.”504

Conclusion

The goal of this Article is to offer a theory of the relationship between sex and gender, not as a social construct, biological reality, or expression alone, but as a theory that focuses on its descriptive similarities to property and intellectual property. As I have suggested, just as the numerus clausus principle has operated to foreclose productive alternative interpretations in property, the same theory holds true in the law’s steadfast commitment to a static, binary system premised on male and female categories. Accordingly, an account of gender as a set of intangible properties can further suggest the need to rethink categories of discrimination and the law as tools for governing and protecting the plurality of gender expression, rather than gender identity. In making these comparisons among property, intellectual property, and gender, I do not expect them to be perfectly seamless or complete, but I do hope that the examination reveals important sets of similarities between the two theoretical constructs and sheds light on the relationship between gender and sex—where it has been and where it can go in the future.

34The categories described by Professors Thomas Merrill and Henry Smith are the following: fees simple, leases, defeasible fees, and life estates. Merrill and Smith, 110 Yale L J at 3 (cited in note 32).
35Id, quoting Keppell v Bailey, 39 Eng Rep 1042, 1049 (Ch 1834).
36Merrill and Smith, 110 Yale L J at 3–4 (cited in note 32). For an excellent discussion of numerus clausus, see generally Nestor M. Davidson, Standardization and Pluralism in Property Law, 61 Vand L Rev 1597 (2008); Bernard Rudden, Economic Theory v. Property Law: The Numerus Clausus Problem, in John Eekelaar and John Bell, eds, Oxford Essays in Jurisprudence: Third Series 239 (Clarendon 1987); Abraham Bell and Gideon Parchomovsky, Of Property and Federalism, 115 Yale L J 72 (2005); Henry Hansmann and Reinier Kraakman, Property, Contract, and Verification: The Numerus Clausus Problem and the Divisibility of Rights, 31 J Legal Stud S373 (2002). See also Michael A. Heller, The Boundaries of Private Property, 108 Yale L J 1163, 1176–78 (1999).
37For an alternative view of the rigidity of property entitlements, see Davidson, 61 Vand L Rev at 1610–16 (cited in note 36) (arguing that there is more dynamism in the numerus clausus system than property scholarship recognizes).
38See generally Harris, 106 Harv L Rev 1707 (cited in note 31). Others have also noted a similar parallel between gender and property. See generally, for example, Davina Cooper and Flora Renz, If the State Decertified Gender, What Might Happen to Its Meaning and Value?, 43 J L & Society 483 (2016).
39Harris, 106 Harv L Rev at 1725 (cited in note 31).
40Id at 1734–36.
41163 US 537 (1896).
42347 US 483 (1954).
43Harris, 106 Harv L Rev at 1745–57 (cited in note 31).
44Id at 1757–91.
45Id at 1734.
46Id.
47See generally Cooper and Renz, 43 J L & Society 483 (cited in note 38) (describing a similar system).
48Abraham Bell and Gideon Parchomovsky, A Theory of Property, 90 Cornell L Rev 531, 554 (2005).
49Id.
50Id.
51See generally Harris, 106 Harv L Rev 1707 (cited in note 31); Cooper and Renz, 43 J L & Society 483 (cited in note 38).
52See Kristen Schilt and Laurel Westbrook, Doing Gender, Doing Heteronormativity: “Gender Normals,” Transgender People, and the Social Maintenance of Heterosexuality, 23 Gender & Society 440, 443–44 (2009). I use the term “cis” and “cisgender,” following the Merriam-Webster dictionary, to refer to “a person whose gender identity corresponds with the sex the person had or was identified as having at birth.” Cisgender (Merriam-Webster), online at http://www.merriam-webster.com/dictionary/cisgender (visited Mar 4, 2017) (Perma archive unavailable).
53For an excellent treatment of the morphological and performative dimension of race, see Camille Gear Rich, Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII, 79 NYU L Rev 1134, 1145–71 (2004).
54See Abrams, 21.2 Colum J Gender & L at 78 (cited in note 29) (“In most legal discourse (indeed probably in most social or cultural conceptions) gender is something you can easily have by yourself: it comes with your biological sex.”).
55See Martine Rothblatt, The Apartheid of Sex: A Manifesto on the Freedom of Gender 13 (Crown 1995) (“Labeling people as male or female, upon birth, exalts biology over sociology.”).
56See Cooper and Renz, 43 J L & Society at 490 (cited in note 38) (reaching similar conclusions).
57See id at 493 (noting that gender’s organizing principles determine “where we belong and who we belong with”) (citation omitted).
58Professor Jessica A. Clarke has made a similar observation regarding sex classifications. See Jessica A. Clarke, Identity and Form, 103 Cal L Rev 747, 757–62 (2015).
59Harris, 106 Harv L Rev at 1761–66 (cited in note 31).
60See Know Your Rights: Transgender People and the Law (ACLU), archived at http://perma.cc/6AMW-DU8X (describing how state requirements for changing the gender designated on a birth certificate vary widely and are often vague).
61See Janell Ross, How Easy Is It to Change the Sex on Your Birth Certificate? (Wash Post, May 18, 2016), archived at http://perma.cc/28RD-25B9 (noting that Idaho, Ohio, and Tennessee “do not allow changes to birth certificates”). See also generally Charles Cohen, Note, Losing Your Children: The Failure to Extend Civil Rights Protections to Transgender Parents, 85 Geo Wash L Rev (forthcoming 2017), archived at http://perma.cc/9XVC-PQ65.
62See Mary C. Dunlap, The Constitutional Rights of Sexual Minorities: A Crisis of the Male/Female Dichotomy, 30 Hastings L J 1131, 1132–39 (1979).
63Chinyere Ezie, Deconstructing the Body: Transgender and Intersex Identities and Sex Discrimination—the Need for Strict Scrutiny, 20.1 Colum J Gender & L 141, 160 (2011) (emphasis added).
64Id at 160–61 (enumerating these and other means of sex classifications).
65See, for example, Michael Boulette, That Kind of Sexe Which Doth Prevaile: Shifting Legal Paradigms on the Ontology and Mutability of Sex, 50 Jurimetrics 329, 336–39 (2010) (listing eight determinants of individual sex: “[g]enetic or chromosomal sex (XX or XY),” “[g]onadal (testes or ovaries),” “[i]nternal morphologic sex (seminal vesicles-prostrate or vagina-uterus-fallopian tubes),” “[e]xternal morphologic (penis-scrotum or clitoris-labia),” “[h]ormonal sex (androgens or estrogen),” “[p]henotypic sex (extensive body hair or breasts),” “[a]ssigned sex and gender of rearing,” and finally “[s]exual identity,” and discussing how legal sex distinctions become unclear when these determinants do not align).
66There is a wealth of commentary critiquing the binary nature of gender and sex. See generally, for example, Taylor Flynn, Instant (Gender) Messaging: Expression-Based Challenges to State Enforcement of Gender Norms, 18 Temple Polit & CR L Rev 465 (2009); Franklin H. Romeo, Note, Beyond a Medical Model: Advocating for a New Conception of Gender Identity in the Law, 36 Colum Hum Rts L Rev 713 (2005); Darren Rosenblum, “Trapped” in Sing Sing: Transgendered Prisoners Caught in the Gender Binarism, 6 Mich J Gender & L 499 (2000); Jillian Todd Weiss, Transgender Identity, Textualism, and the Supreme Court: What Is the “Plain Meaning” of “Sex” in Title VII of the Civil Rights Act of 1964?, 18 Temple Polit & CR L Rev 573 (2009); Andrew Gilden, Toward a More Transformative Approach: The Limits of Trangender Formal Equality, 23 Berkeley J Gender, L & Just 83 (2008); Julie Greenberg, Marybeth Herald, and Mark Strasser, Beyond the Binary: What Can Feminists Learn from Intersex and Transgender Jurisprudence?, 17 Mich J Gender & L 13 (2010).
67Ezie, 20.1 Colum J Gender & L at 142–43 (cited in note 63). See also Julie A. Greenberg, Defining Male and Female: Intersexuality and the Collision between Law and Biology, 41 Ariz L Rev 265, 278–89 (1999); Cheryl Chase, Hermaphrodites with Attitude: Mapping the Emergence of Intersex Political Activism, in Stryker and Whittle, eds, Transgender Studies Reader 300, 305–10 (cited in note 4) (discussing the activism surrounding the intersex movement); Anne Fausto-Sterling, Cynthia Garcia Coll, and Meghan Lamarre, Sexing the Baby: Part 1—What Do We Really Know about Sex Differentiation in the First Three Years of Life?, 74 Soc Sci & Med 1684, 1687–88 (2012) (describing the biological sex differences observable in the first three years of life); Ilana Gelfman, Because of Intersex: Intersexuality, Title VII, and the Reality of Discrimination “Because of . . . [Perceived] Sex”, 34 NYU Rev L & Soc Change 55, 62–69 (2010) (describing the evidence involved in some designations of intersexuality); Mark E. Berghausen, Comment, Intersex Employment Discrimination: Title VII and Anatomical Sex Nonconformity, 105 Nw U L Rev 1281, 1286–94 (2011). See also generally Erin Lloyd, From the Hospital to the Courtroom: A Statutory Proposal for Recognizing and Protecting the Legal Rights of Intersex Children, 12 Cardozo J L & Gender 155 (2005); Sara R. Benson, Hacking the Gender Binary: Recognizing Fundamental Rights for the Intersexed, 12 Cardozo J L & Gender 31 (2005); Noa Ben-Asher, The Necessity of Sex Change: A Struggle for Intersex and Transsex Liberties, 29 Harv J L & Gender 51 (2006).
68Ezie, 20.1 Colum J Gender & L at 146–47 (cited in note 63). If a child is born with a “normal” clitoris (defined as less than three-eighths of an inch), she is designated as a girl; if a child is born with a penis length of one inch or longer and appears to be potentially capable of penetrative sex, he is designated a boy. Id at 147. This is so even though the chromosomal identity of the child may differ from their external organs. Id at 147–48. Chromosomal identity is also quite complex, based on research into the molecular genetics of sex determination. See generally, for example, Vernon A. Rosario, The Biology of Gender and the Construction of Sex?, 10 GLQ: J Lesbian & Gay Stud 280 (2004).
69Pediatric genital surgery is also not always successful. Some infants require three to five surgeries, and others have had many more during the course of a lifetime—twenty-two in one case. Ezie, 20.1 Colum J Gender & L at 150 (cited in note 63). In addition, these surgeries are often performed without the consent of the patient, and parents are not always made fully aware of the range of choices and alternatives to medical surgery. Id at 150–51. Equally troubling is the fact that many intersex patients are not even made aware of their condition, a factor that has caused many intersex patients significant challenges, both physical and psychological. See id at 152 n 34 (detailing the case of David Reimer, who committed suicide due, in part, to issues surrounding his involuntary gender-related treatments).
70Id at 151–54.
71Id at 153 & n 38.
72See Davidson, 61 Vand L Rev at 1623, 1643–44 (cited in note 36) (noting how the standardizing function of numerus clausus engrafts public regulatory goals onto private legal relations and, thus, “instantiates a variety of normative and pragmatic priorities”).
73See Elizabeth M. Glazer and Zachary A. Kramer, Transitional Discrimination, 18 Temple Polit & CR L Rev 651, 663–67 (2009) (describing the reductionist approach courts and antidiscrimination laws have taken to identity); Sue Landsittel, Comment, Strange Bedfellows? Sex, Religion, and Transgender Identity under Title VII, 104 Nw U L Rev 1147, 1174–76 (2010) (recommending a “consistency” test to protect transgender plaintiffs on the grounds that “most people—both transgender and cisgender—seem to experience their gender identity, whether or not it corresponds with their birth-assigned sex, as something fairly fixed”).
74In this Article, I use the term transgender to broadly include individuals who, for one reason or another, do not conform their gender identity or expression to the social expectations that generally accompany the sex assigned at their birth. See Currah, Juang, and Minter, Introduction at xiv (cited in note 1). The term transgender, as Judge Phyllis Frye has noted, is a “political term created to fill the need for self-definition by the transgender community.” Paisley Currah, Gender Pluralisms under the Transgender Umbrella, in Currah, Juang, and Minter, eds, Transgender Rights 3, 4 (cited in note 1). At the same time, however, it is also important to note the proliferation of multiple categories within this umbrella term. As Professor Susan Stryker has noted, the term refers to “all identities or practices that cross over, cut across, move between, or otherwise queer socially constructed sex/gender boundaries,” and is often used to denote a pluralistic variety of differing identities. Susan Stryker, My Words to Victor Frankenstein above the Village of Chamounix: Performing Transgender Rage, in Stryker and Whittle, eds, Transgender Studies Reader 244, 245 n 2 (cited in note 4). For a very eloquent account of transgender identity construction and its varying forms, see Currah, Gender Pluralisms at 4 (cited in note 74). See also Jennifer L. Levi and Bennett H. Klein, Pursuing Protection for Transgender People through Disability Laws, in Currah, Juang, and Minter, eds, Transgender Rights 74, 80 (cited in note 1).
75Dean Spade and Rori Rohlfs, Legal Equality, Gay Numbers and the (After?)Math of Eugenics (Scholar & Feminist Online, Spring 2016), archived at http://perma.cc/JS74-L6X3.
76Id.
77Levi and Klein, Pursuing Protection at 80 (cited in note 74).
78See Dylan Vade, Expanding Gender and Expanding the Law: Toward a Social and Legal Conceptualization of Gender That Is More Inclusive of Transgender People, 11 Mich J Gender & L 253, 273–78 (2005) (identifying and describing a plethora of diverse gender identities). There are also significant racialized dimensions to the terms that individuals adopt. See, for example, Julia C. Oparah, Feminism and the (Trans)Gender Entrapment of Gender Nonconforming Prisoners, 18 UCLA Women’s L J 239, 245 (2012) (noting a proliferation of other terms promulgated by people of color who may not identify as transgender).
79Currah, Juang, and Minter, Introduction at xiv–xv (cited in note 1). This category may include “transsexuals, transvestites, cross-dressers, drag kings and drag queens, butch and femme lesbians, feminine gay men, intersex people, bigendered people,” two-spirited individuals, “and others who ‘challenge the boundaries of sex and gender.’” Shannon Price Minter, Do Transsexuals Dream of Gay Rights? Getting Real about Transgender Inclusion, in Currah, Juang, and Minter, eds, Transgender Rights 141, 141 n 1 (cited in note 1), quoting Leslie Feinberg, Transgender Warriors: Making History from Joan of Arc to RuPaul x (Beacon 1996).
80Currah, Juang, and Minter, Introduction at xvi (cited in note 1).
81See Meerkamper, Note, 12 Dukeminier Awards J at *17–23 (cited in note 6).
82Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U Pa L Rev 1, 39 (1995), quoting Judith Lorber, Paradoxes of Gender 17 (Yale 1994).
83In the Matter of Heilig, 816 A2d 68, 86–87 (Md 2003) (discussing how the courts and agencies have approached “sexing” a transgender individual).
84Ezie, 20.1 Colum J Gender & L at 158–60 (cited in note 63). In the past, private insurers and Medicaid agencies have also denied coverage under broad exclusion policies or because the applicant has failed to demonstrate “medical necessity.” Id. These denials have particular impact on youth, people of color, and individuals who are in the foster system or other institutional structures, like prisons or immigration detention. Id.
85Dean Spade, Resisting Medicine, Re/Modeling Gender, 18 Berkeley Women’s L J 15, 25–26 (2003).
86Merrill and Smith, 110 Yale L J at 10 (cited in note 32) (citation omitted).
87Dunlap, 30 Hastings L J at 1147 (cited in note 62).
88See Dean Spade, Documenting Gender, 59 Hastings L J 731, 733–39 (2008).
89See id at 762. This rule has now changed. For the new policy, see How Do I Change My Gender on Social Security’s Records? (Social Security Administration), archived at http://perma.cc/WM67-TNDZ.
90Spade, 59 Hastings L J at 763 (cited in note 88).
91See Kerry Eleveld, Passport Rules Eased for Transgender People (Advocate, June 10, 2010), archived at http://perma.cc/X7LW-6RCT. For a description of the current policy, see Gender Transition Applicants (Department of State, Bureau of Consular Affairs), archived at http://perma.cc/QLL3-499K.
92Spade, 59 Hastings L J at 775 (cited in note 88). Federal regulations since September 11, 2001, have made this much more difficult. Id at 746, 775. See also Nan D. Hunter, “Public-Private” Health Law: Multiple Directions in Public Health, 10 J Health Care L & Pol 89, 93–99 (2007) (discussing the increase in federal security regulations regarding health).
93Rappole, Comment, 30 Md J Intl L at 196–97 (cited in note 8). See also Spade, 59 Hastings L J at 767–70 (cited in note 88).
94See Spade, 59 Hastings L J at 736 (cited in note 88). Forty-six states plus a handful of other jurisdictions allow people to correct their gender marker, and a handful of states do not have clear policies. See Lisa Mottet, Modernizing State Vital Statistics Statutes and Policies to Ensure Accurate Gender Markers on Birth Certificates: A Good Government Approach to Recognizing the Lives of Transgender People, 19 Mich J Gender & L 373, 381–83 (2013) (noting that “Oklahoma, Texas, and American Samoa do not have clear policies,” and that, while only Tennessee has an explicit ban, “Idaho, Ohio, and Puerto Rico also do not allow individuals to correct gender”).
95California, New York, Oregon, Vermont, Washington, and the District of Columbia require that a doctor certify “appropriate clinical treatment.” Rappole, Comment, 30 Md J Intl L at 197 (cited in note 8).
96See, for example, Birth Certificate: Court Order of Change of Sex (Oregon Health Authority), archived at http://perma.cc/VL89-83AK.
97Spade, 59 Hastings L J at 768 & n 181 (cited in note 88). See also Tenn Code Ann § 68-3-203(d); In re Ladrach, 513 NE2d 828, 831 (Ohio Probate 1987); Idaho Code § 39-250.
98See Spade, 59 Hastings L J at 773 (cited in note 88).
99Id at 772.
100See id at 752–53, 775–76.
101See id at 753, 775–82 (noting that the rules regarding gender classification for purposes of sex segregation significantly injure nonconforming and transgender individuals).
102Dunlap, 30 Hastings L J at 1132 (cited in note 62).
103See Thomas W. Merrill and Henry E. Smith, What Happened to Property in Law and Economics?, 111 Yale L J 357, 387 (2001) (“If in rem rights were freely customizable—in the way in personam contract rights are—then the information-cost burden would quickly become intolerable.”).
104Merrill and Smith, 110 Yale L J at 37–38 (cited in note 32).
105See Rich, 79 NYU L Rev at 1148 (cited in note 53) (making similar observations with respect to race).
106See, for example, United States v Virginia, 518 US 515, 542–45 (1996) (applying intermediate scrutiny to the sex-based prohibitions at bar and drawing parallels between the prohibitions and archaic assumptions about the sexes); City of Los Angeles Department of Water and Power v Manhart, 435 US 702, 704–09 (1978) (“Practices that classify employees in terms of religion, race, or sex tend to preserve traditional assumptions about groups rather than thoughtful scrutiny of individuals.”).
107See Laura E. Kuper, Robin Nussbaum, and Brian Mustanski, Exploring the Diversity of Gender and Sexual Orientation Identities in an Online Sample of Transgender Individuals, 49 J Sex Rsrch 244, 248–50 (2012) (noting that the majority of transgender survey participants either did not desire or were unsure about whether to pursue certain medical interventions, like hormones or gender confirmation surgery). See also Ezie, 20.1 Colum J Gender & L at 156–57 (cited in note 63) (“While intersex persons are figured to have a disorder of the body, transgender people are classified as having a disorder of the mind.”); Rhonda Factor and Esther Rothblum, Exploring Gender Identity and Community among Three Groups of Transgender Individuals in the United States: MTFs, FTMs, and Genderqueers, 17 Health Sociology Rev 235, 237–42 (2008) (noting a multiplicity of identity categories and a substantial reluctance among some populations to pursue medical intervention).
108For a compelling personal account, see generally Eli Clare, Resisting Shame: Making Our Bodies Home, 8 Seattle J Soc Just 455 (2010).
109See, for example, Nancy J. Knauer, Gender Matters: Making the Case for Trans Inclusion, 6 Pierce L Rev 1, 1 & n 2, 23–29 (2007). See also Stryker, (De)Subjugated Knowledges at 9 (cited in note 4) (“Transgender phenomena call into question both the stability of the material referent ‘sex’ and the relationship of that unstable category to the linguistic, social, and psychical categories of ‘gender.’”).
110For excellent writing on transgender identity and related issues involving race, class, and other categories, see the work of Spade. See generally, for example, Spade, 59 Hastings L J 731 (cited in note 88); Dean Spade, Compliance Is Gendered: Struggling for Gender Self-Determination in a Hostile Economy, in Currah, Juang, and Minter, eds, Transgender Rights 217 (cited in note 1); Dean Spade, Mutilating Gender, in Stryker and Whittle, eds, Transgender Studies Reader 315 (cited in note 4); Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (Duke rev ed 2015).
111See Knauer, 6 Pierce L Rev at 44–50 (cited in note 109).
112Andrew N. Sharpe, Transgender Jurisprudence: Dysphoric Bodies of Law 24–25 (Cavendish 2002).
113Id at 26.
114Id at 30–31.
115For a very helpful summary of these developments in the past few years, see Kevin M. Barry, et al, A Bare Desire to Harm: Transgender People and the Equal Protection Clause, 57 BC L Rev 507, 516–26 (2016).
116See Jonathan L. Koenig, Note, Distributive Consequences of the Medical Model, 46 Harv CR–CL L Rev 619, 623–25 (2011). See also Diagnostic and Statistical Manual of Mental Disorders 261–66 (American Psychiatric Association 3d ed 1980).
117Koenig, Note, 46 Harv CR–CL L Rev at 624 (cited in note 116), quoting Diagnostic and Statistical Manual of Mental Disorders 532–33 (American Psychiatric Association 4th ed 1994) (DSM-IV) (quotation marks omitted).
118Diagnostic and Statistical Manual of Mental Disorders 451–59 (American Psychiatric Association 5th ed 2013).
119Whitney Barnes, The Medicalization of Transgenderism (TransHealth, July 18, 2001), archived at http://perma.cc/9D98-XNBE. See also generally Heino F.L. Meyer-Bahlburg, From Mental Disorder to Iatrogenic Hypogonadism: Dilemmas in Conceptualizing Gender Identity Variants as Psychiatric Conditions, 39 Arch Sexual Behav 461 (2010).
120Dallas Denny, Transgender Communities of the United States in the Late Twentieth Century, in Currah, Juang, and Minter, eds, Transgender Rights 171, 174–75 (cited in note 1).
121Id at 175–76.
122Id at 176.
123Id at 177, citing generally Dallas Denny, The Politics of Diagnosis and a Diagnosis of Politics: The University-Affiliated Gender Clinics, and How They Failed to Meet the Needs of Transgender People, 98 Transgender Tapestry 3 (Summer 2002).
124Denny, Transgender Communities of the United States at 177 (cited in note 120).
125Id.
126See Koenig, Note, 46 Harv CR–CL L Rev at 624–25 (cited in note 116).
127Denny, Transgender Communities of the United States at 178–79 (cited in note 120).
128See Koenig, Note, 46 Harv CR–CL L Rev at 625 (cited in note 116).
129To date, “[c]ourts or administrative agencies in at least seven states have found that transgender people are protected under state civil rights statutes that prohibit discrimination on the basis of disability.” Levi and Klein, Pursuing Protection at 74 (cited in note 74). The seven states are: Florida, Illinois, Massachusetts, New Hampshire, New Jersey, New York, and Washington. Id at 74 n 1.
130Koenig, Note, 46 Harv CR–CL L Rev at 625 (cited in note 116).
131Denny, Transgender Communities of the United States at 179 (cited in note 120).
132See Oparah, 18 UCLA Women’s L J at 247 (cited in note 78).
133Id.
134This is particularly an issue given the low rate of insurance coverage for transgender individuals. One 2003 study found that 43 percent of the transgender-identified individuals interviewed lacked health insurance, a rate that was double the proportion in the general population. Id at 247 n 38. For a discussion of steps that can be taken to ensure greater coverage, see Ilona M. Turner, Pioneering Strategies to Win Trans Rights in California, 34 U La Verne L Rev 5, 14–18 (2012).
135Olivia Smith and Justine Quart, Underground: Why This Transgender Woman Used Black Market Drugs to Transition (ABC News, May 10, 2016), archived at http://perma.cc/ZB88-2PNQ; Melissa Dunn and Aisha C. Moodie-Mills, The State of Gay and Transgender Communities of Color in 2012: The Economic, Educational, and Health Insecurities These Communities Are Struggling with and How We Can Help Them (Center for American Progress, Apr 13, 2012), archived at http://perma.cc/H23M-THL6 (noting that transgender women of color “are at risk of serious health complications from taking black market hormone and silicone injections”). Should any of these individuals face arrest or imprisonment, they may be placed in the facility that corresponds to the sex they were assigned at birth and may often be denied certain types of medical treatment. Oparah, 18 UCLA Women’s L J at 247–48 (cited in note 78).
136See Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People *4 (World Professional Association for Transgender Health 2011), archived at http://perma.cc/VA6E-8YLN (discussing the difference between the two classifications).
137See Sharon M. McGowan, Working with Clients to Develop Compatible Visions of What It Means to “Win” a Case: Reflections on Schroer v. Billington, 45 Harv CR–CL L Rev 205, 221 (2010), citing Levi and Klein, Pursuing Protection at 80–83 (cited in note 74) (discussing the influence of the Levi and Klein work).
138Jay Prosser, Second Skins: The Body Narratives of Transsexuality 77–78 (Columbia 1998).
139This discussion of transgender legal history is only a fraction of a much richer and more complex chronology. For an excellent book on the topic, see generally Susan Stryker, Transgender History (Seal 2008).
140Sharpe, Transgender Jurisprudence at 40 (cited in note 112), quoting X—Petitioner, 1957 Scots L Times 61, 62 (Sheriff Ct 1957). The court also noted that, even if a change of sex had taken place, the relevant statute would not have permitted a change to the birth certificate, which was “a record of fact at a fixed time” and “not . . . a narrative of events.” X, 1957 Scots L Times at 62.
141See Corbett v Corbett, 2 All ER 33, 47 (High Probate Divorce and Admiralty 1970).
1422 All ER 33 (High Probate Divorce and Admiralty 1970).
143Sharpe, Transgender Jurisprudence at 40–41 (cited in note 112), citing Corbett, 2 All ER at 48–49.
144Sharpe, Transgender Jurisprudence at 40 (cited in note 112), citing Corbett, 2 All ER at 34.
145Corbett, 2 All ER at 34, 37, 40. A related issue in the case involved allegations that the marriage had never been consummated. See id at 34.
146Id at 41–42.
147Id at 43, 47.
148Id at 43.
149Sharpe, Transgender Jurisprudence at 41–42 (cited in note 112). See also Corbett, 2 All ER at 40–47.
150Ladrach, 513 NE2d at 832.
151Corbett, 2 All ER at 47.
152Id at 49.
153Marybeth Herald, Transgender Theory: Reprogramming Our Automated Settings, 28 Thomas Jefferson L Rev 167, 172–73 (2005).
154Sharpe, Transgender Jurisprudence at 43 (cited in note 112).
155Littleton v Prange, 9 SW3d 223, 224 (Tex App 1999).
156Id at 231.
157In the Matter of the Estate of Gardiner, 42 P3d 120, 136–37 (Kan 2002); Kantaras v Kantaras, 884 S2d 155, 161 (Fla App 2004); In the Matter of a Marriage License for Nash, 2003 WL 23097095, *9 (Ohio App).
158Sharpe, Transgender Jurisprudence at 3 & n 5 (cited in note 112) (emphasis omitted) (listing cases). An Australian court, for example, held that one’s psychological gender identity played a considerably more powerful role than one’s anatomical sex at birth. See Taylor Flynn, The Ties That (Don’t) Bind: Transgender Family Law and the Unmaking of Families, in Currah, Juang, and Minter, eds, Transgender Rights 32, 35 (cited in note 1), citing generally Re Kevin: Validity of Marriage of Transsexual, 28 Fam L 158 (Fam Australia 2001).
15957 Misc 2d 813 (NY City Civ 1968).
160Id at 816–17.
161Id at 817.
162Sharpe, Transgender Jurisprudence at 59–60 (cited in note 112).
163Anonymous, 57 Misc 2d at 815.
164355 A2d 204 (NJ App 1976).
165Sharpe, Transgender Jurisprudence at 60 (cited in note 112), citing M.T., 355 A2d at 211. The sex/gender distinction has intersected with the question of mixed-sex requirements for marriage, which were common before Obergefell v Hodges, 135 S Ct 2584 (2015), at times leading to a variety of approaches that failed to question the justification behind these requirements. See David B. Cruz, Getting Sex “Right”: Heteronormativity and Biologism in Trans and Intersex Marriage Litigation and Scholarship, 18 Duke J Gender L & Pol 203, 210–15 (2010).
166M.T., 355 A2d at 206.
167Id at 206–08. See also Sharpe, Transgender Jurisprudence at 61–62 (cited in note 112).
168Sharpe, Transgender Jurisprudence at 3 (cited in note 112).
169Echoing this view, one scholar, for example, wrote that anatomical sex had to play a determinative role, noting that “[s]ociety would consider a fully anatomical male to be male regardless of a convincing feminine appearance or the individual’s inner beliefs.” Id at 60, quoting Douglas K. Smith, Comment, Transsexualism, Sex Reassignment Surgery, and the Law, 56 Cornell L Rev 963, 969 (1971).
170Sharpe, Transgender Jurisprudence at 60 (cited in note 112), quoting John Dewar, Transsexualism and Marriage, 15 Kingston L Rev 58, 62–63 (1985).
171See, for example, Gardiner, 42 P3d at 133–34; Richards v United States Tennis Association, 400 NYS2d 267, 269 (NY Sup 1977).
172See Flynn, The Ties That (Don’t) Bind at 35–37 (cited in note 158).
173For example, Michael Kantaras, a transgender man who faced a custody battle regarding his children (who were biologically fathered by his brother), faced a three-week trial in which the main object of discussion concerned whether Kantaras had a penis that was sufficient for the purposes of penetration. Id at 38–39. The court failed to recognize that Kantaras’s choice not to undergo surgical construction of a penis is like the choice made by many—indeed, most—trans men. Id at 39. The surgery, known as phalloplasty, is often prohibitively expensive (costs can exceed $100,000) and carries substantial physical risks of loss of orgasmic capability, scarring, or irreversible damage to the urethra. Id.
174Id at 39.
175Cruz, 18 Duke J Gender L & Pol at 222 (cited in note 165).
176Sharpe, Transgender Jurisprudence at 62 (cited in note 112).
177William N. Eskridge Jr and Nan D. Hunter, Sexuality, Gender, and the Law 1425 (Foundation Press 2d ed 2004) (brackets omitted).
178Id.
179Id at 1425–28, citing generally People v Archibald, 296 NYS2d 834 (NY App 1968).
180Joanne Meyerowitz, How Sex Changed: A History of Transsexuality in the United States 136–37, 149–50, 247 (Harvard 2002).
181See, for example, City of Chicago v Wilson, 389 NE2d 522, 522–23 (Ill 1978).
182Id at 525.
183Kylar W. Broadus, The Evolution of Employment Discrimination Protections for Transgender People, in Currah, Juang, and Minter, eds, Transgender Rights 93, 95 (cited in note 1).
184403 F Supp 456 (ND Cal 1975).
185Id at 456–57 & n 1. See also Broadus, The Evolution of Employment Discrimination Protections for Transgender People at 95 (cited in note 183) (discussing this case).
1861975 WL 302 (D NJ).
187Id at *4. See also Broadus, The Evolution of Employment Discrimination Protections for Transgender People at 95 (cited in note 183).
188742 F2d 1081 (7th Cir 1984).
189Id at 1087 (citation omitted).
190See, for example, Holloway v Arthur Andersen and Co, 566 F2d 659, 663–64 (9th Cir 1977) (holding that transgender people are not a suspect class and that discrimination on the basis of transgender identity is not actionable under Title VII, the Fifth Amendment, or the Fourteenth Amendment); Sommers v Budget Marketing, Inc, 667 F2d 748, 750 (8th Cir 1982) (per curiam) (noting that the plain meaning, legislative history, and subsequent debates surrounding Title VII all support the conclusion that Congress did not envision Title VII’s protections extending to transgender individuals).
191See Sharpe, Transgender Jurisprudence at 64 (cited in note 112).
192Currah, Gender Pluralisms at 15 (cited in note 74) (brackets in original).
193Id at 16.
194See, for example, Definitions Related to Sexual Orientation and Gender Diversity in APA Guidelines and Policy Documents *1, archived at http://perma.cc/QRR6-T2E4.
195Butler, Gender Trouble at 34 (cited in note 27).
196Id.
197See Suzanne J. Kessler and Wendy McKenna, Toward a Theory of Gender, in Stryker and Whittle, eds, Transgender Studies Reader 165, 174–76 (cited in note 4) (noting that gender attribution is a function of genitals, secondary sex characteristics, dress, accessories, and paralinguistic behavior).
198 value="198">490 US 228 (1989).
199Id at 258 (Brennan) (plurality).
200Diana Taylor, The Archive and the Repertoire: Performing Cultural Memory in the Americas 5–6 (Duke 2003).
201Butler, Gender Trouble at 8–10 (cited in note 27).
202Id at 10–47.
203Katyal, 14 Yale J L & Feminism at 118 (cited in note 4). See also Butler, Gender Trouble at 33 (cited in note 27). For a longer discussion of Butler and performativity, see Sonia K. Katyal, Performance, Property, and the Slashing of Gender in Fan Fiction, 14 J Gender, Soc Pol & L 461, 489–92 (2006).
204Butler, Gender Trouble at 2–8 (cited in note 27).
205Id at 7–8. See also Katyal, 14 Yale J L & Feminism at 118 (cited in note 4) (discussing Butler’s performative theory and subsequent divisions between civil rights activists and queer theorists); Katyal, 14 J Gender, Soc Pol & L at 489–92 (cited in note 203).
206Butler, Gender Trouble at 186 (cited in note 27).
207Kath Weston, Gender in Real Time: Power and Transience in a Visual Age 58 (Routledge 2002).
208Butler, Gender Trouble at 34 (cited in note 27).
209Id at 185–86.
210Other prominent legal scholars have taken similar approaches. See, for example, Franke, 144 U Pa L Rev at 39 (cited in note 82); Russell K. Robinson, Masculinity as Prison: Sexual Identity, Race, and Incarceration, 99 Cal L Rev 1309, 1331–35 (2011).
211Butler, Gender Trouble at 8–9 (cited in note 27).
212Judith Butler, Bodies That Matter: On the Discursive Limits of “Sex” 1–4 (Routledge 1993).
213Id.
214See Rich, 79 NYU L Rev at 1178 (cited in note 53).
215See Butler, Gender Trouble at 186–90 (cited in note 27).
216See id at 191–92.
217Weston, Gender in Real Time at 40 (cited in note 207).
218Butler, Bodies That Matter at 2 (cited in note 212).
219R. Polk Wagner, Information Wants to Be Free: Intellectual Property and the Mythologies of Control, 103 Colum L Rev 995, 1001 (2003) (“In intellectual property, of course, we deal in intangible, nonrivalrous goods.”) (citation omitted).
220Marc R. Poirier, The Virtue of Vagueness in Takings Doctrine, 24 Cardozo L Rev 93, 153–55 (2002). See also generally Cooper and Renz, 43 J L & Society 483 (cited in note 38) (reaching similar observations).
221Butler, Gender Trouble at 184–86 (cited in note 27).
222Id at 186–88.
223Id at 9–10. She writes: “If gender consists of the social meanings that sex assumes, then . . . sex is relinquished[,] . . . and gender emerges, not as a term in a continued relationship of opposition to sex, but as the term which absorbs and displaces ‘sex.’” Butler, Bodies That Matter at 5 (cited in note 212).
224Butler, Gender Trouble at xxv (cited in note 27).
225Id at 24.
226Id at 201.
227Id at 188–89, 200.
228See Butler, Gender Trouble at 200 (cited in note 27); Gail L. Hawkes, Dressing-Up—Cross-Dressing and Sexual Dissonance, 4 J Gender Stud 261, 266–70 (1995).
229Butler, Gender Trouble at 9–10 (cited in note 27).
230Id at 9 (emphasis omitted).
231Note that I am suggesting, as Butler has, that “[t]he critical promise of drag does not have to do with the proliferation of genders, as if a sheer increase in numbers would do the job, but rather with the exposure of the failure of heterosexual regimes ever fully to legislate or contain their own ideals.” Judith Butler, Critically Queer, 1 GLQ: J Lesbian & Gay Stud 17, 26 (1993). See also Sheila “Dragon Fly” Koenig, Walk like a Man: Enactments and Embodiments of Masculinity and the Potential for Multiple Genders, in Donna Troka, Kathleen LeBesco, and Jean Bobby Noble, eds, The Drag King Anthology 145, 152 (Harrington Park 2002) (“Butler’s discussion of drag focuses only on the enactment of heterosexual gender categories, ignoring the ways that drag can expose ‘Gender’ to consist of many genders.”).
232Indeed, Butler’s influence on legal scholarship has been substantial. A recent Westlaw search (conducted on February 15, 2016) revealed that her work has been cited well over a thousand times in the law review literature.
233Judith Butler, Undoing Gender 6 (Routledge 2004).
234For excellent discussions of the history of sex discrimination and Title VII, including the role of Price Waterhouse, see generally Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv L Rev 1307 (2012); Zachary R. Herz, Note, Price’s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L J 396 (2014); Mary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan L Rev 1333 (2014).
23542 USC § 2000e(k) (“The terms ‘because of sex’ . . . include . . . because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons.”).
236See Holning Lau, Identity Scripts & Democratic Deliberation, 94 Minn L Rev 897, 902–10 (2010) (describing “identity scripts” as the aggregation of distinct stereotypes, which collectively form a script to which individuals are expected to conform).
237Id at 904.
238For example, Professors Devon W. Carbado and Mitu Gulati have suggested that, due to scripts that associate African American males with laziness, some African American males work longer hours than necessary. Id at 905 & n 29, citing Devon W. Carbado and Mitu Gulati, Working Identity, 85 Cornell L Rev 1259, 1292–93 (2000).
239For the most part, “federal courts have narrowly construed the meaning of ‘sex’ under Title VII, restricting it to the plain meaning of the word.” Meredith R. Palmer, Note, Finding Common Ground: How Inclusive Language Can Account for the Diversity of Sexual Minority Populations in the Employment Non-discrimination Act, 37 Hofstra L Rev 873, 879 (2009), quoting Tiffany L. King, Comment, Working Out: Conflicting Title VII Approaches to Sex Discrimination and Sexual Orientation, 35 UC Davis L Rev 1005, 1020 (2002).
240See Price Waterhouse, 490 US at 239–42 (Brennan) (plurality).
241Id at 234–36 (Brennan) (plurality).
242Id at 235 (Brennan) (plurality).
243Id (Brennan) (plurality).
244Price Waterhouse, 490 US at 256 (Brennan) (plurality).
245Id at 251 (Brennan) (plurality).
246Id (Brennan) (plurality) (brackets omitted).
247Palmer, Note, 37 Hofstra L Rev at 881 (cited in note 239). See also Montgomery v Independent School District No 709, 109 F Supp 2d 1081, 1090–93 (D Minn 2000).
248See, for example, Montgomery, 109 F Supp 2d at 1090; Fitzpatrick v Winn–Dixie Montgomery, Inc, 153 F Supp 2d 1303, 1306 (MD Ala 2001). See also Case, 66 Stan L Rev at 1342–43 (cited in note 234).
249Palmer, Note, 37 Hofstra L Rev at 881–82 (cited in note 239).
250Id at 882, quoting Dawson v Bumble & Bumble, 398 F3d 211, 218 (2d Cir 2005). Another court went so far as to observe that recognizing such claims “would have the effect of de facto amending Title VII” to include sexual orientation, fearing that “any discrimination based on sexual orientation would be actionable under a sex stereotyping theory . . . as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” Palmer, Note, 37 Hofstra L Rev at 882 (cited in note 239) (ellipsis in original), quoting Vickers v Fairfield Medical Center, 453 F3d 757, 764 (6th Cir 2006).
251See, for example, Dobre v National Railroad Passenger Corp (“Amtrak”), 850 F Supp 284, 285 n 1 (ED Pa 1993).
252See, for example, id at 286–87.
253Id at 286.
254Id at 287. See also Grossman, 1975 WL 302 at *4 (rejecting a Title VII claim because the termination was based on the plaintiff’s identity as a transgender individual and not on sex).
255214 F3d 213 (1st Cir 2000).
256Pub L No 94-239, 90 Stat 251 (1974), codified in various sections of Title 15.
257Rosa, 214 F3d at 215–16.
258I do not adopt the court’s use of pronouns and instead conform with the plaintiff’s self-identification.
259Rosa, 214 F3d at 214.
260Id at 214–15.
261Id at 214.
262Id at 215–16.
263204 F3d 1187 (9th Cir 2000).
264See generally id.
265Civil Rights Remedies for Gender-Motivated Violence Act, Pub L No 103-322, 108 Stat 1941 (1994), codified in various sections of Title 42.
266Schwenk, 204 F3d at 1193–94.
267Id at 1202.
268Id at 1201, 1205.
269See Kimberly A. Yuracko, Soul of a Woman: The Sex Stereotyping Prohibition at Work, 161 U Pa L Rev 757, 785 (2013) (“When, however, is a male-to-female transsexual expressing a feminine gender identity in the same way as a biological woman, and when is she occupying some third gender category?”). See also generally Kimberly A. Yuracko, Gender Nonconformity and the Law (Yale 2016).
270Stevie V. Tran and Elizabeth M. Glazer, Transgenderless, 35 Harv J L & Gender 399, 400 (2012).
271378 F3d 566 (6th Cir 2004).
272Id at 568–69.
273Id at 569–70, 573.
274Id at 575.
275Smith, 378 F3d at 575.
276Id at 572. See also Barnes v City of Cincinnati, 401 F3d 729, 733–38 (6th Cir 2005) (upholding a jury award in favor of a transgender plaintiff’s sex discrimination claim under Title VII).
277See Jason Lee, Note, Lost in Transition: The Challenges of Remedying Transgender Employment Discrimination under Title VII, 35 Harv J L & Gender 423, 444–46 (2012).
278Id at 439–41.
279See Sweet v Mulberry Lutheran Home, 2003 WL 21525058, *2–3 (SD Ind). The opinion uses the pronoun “he” and does not include any information regarding the plaintiff’s activities regarding gender transition, see generally id, but I have changed the pronoun to accord with the plaintiff’s apparent self-identity in my discussion.
280See Lee, Note, 35 Harv J L & Gender at 444–45 (cited in note 277). See also Flynn, 18 Temple Polit & CR L Rev at 472–73 (cited in note 66) (noting that, for transgender plaintiffs whose identities fall outside binary categories, “making a claim as only ‘male’ or ‘female’ could require a plaintiff to undergo an injury similar to the one she is attempting to redress”).
281Lee, Note, 35 Harv J L & Gender at 444–45 (cited in note 277).
282See Smith, 378 F3d at 570. See also Lee, Note, 35 Harv J L & Gender at 446 (cited in note 277), citing Anna Kirkland, What’s at Stake in Transgender Discrimination as Sex Discrimination?, 32 Signs: J Women Culture & Society 83, 94–95 (2006).
283For a longer discussion of this approach, see Lee, Note, 35 Harv J L & Gender at 447–55 (cited in note 277).
284577 F Supp 2d 293 (DDC 2008).
285Id at 296–99.
286Id.
287Id at 305.
288Schroer, 577 F Supp 2d at 306–08. See also Lee, Note, 35 Harv J L & Gender at 447–49 (cited in note 277). Schroer’s lawyer, Sharon McGowan, has also written an excellent article on this topic. See generally McGowan, 45 Harv CR–CL L Rev 205 (cited in note 137).
289Schroer, 577 F Supp 2d at 306.
290See Macy v Holder, EEOC Doc No 0120120821, 2012 WL 1435995, *4–11.
291Id at *7, quoting Schwenk, 204 F3d at 1202.
292Macy, 2012 WL 1435995 at *7–8.
293Glenn v Brumby, 663 F3d 1312, 1314 (11th Cir 2011).
294Id at 1321.
295Id at 1314.
296Glenn v Brumby, 724 F Supp 2d 1284, 1292 (ND Ga 2010) (brackets omitted).
297See Lee, Note, 35 Harv J L & Gender at 449–50 (cited in note 277), citing Glenn, 724 F Supp 2d at 1292.
298Glenn, 663 F3d at 1316.
299See Lee, Note, 35 Harv J L & Gender at 449–50 (cited in note 277), quoting Glenn, 663 F3d at 1319. Interestingly, the Smith court initially reached the same conclusion but then retreated from this approach in an amended decision, eventually adopting a narrower, gender-stereotyping approach. Lee, Note, 35 Harv J L & Gender at 450 (cited in note 277) (quoting the original opinion as stating, “Even if Smith had alleged discrimination based only on her self-identification as a transsexual her claim is actionable pursuant to Title VII”) (brackets and ellipsis omitted).
300See Ulane, 742 F2d at 1086–87.
301Lee, Note, 35 Harv J L & Gender at 451–52 (cited in note 277).
302See, for example, Creed v Family Express Corp, 2009 WL 35237, *8–10 (ND Ind).
303See Lee, Note, 35 Harv J L & Gender at 454 (cited in note 277) (citing a discrimination survey that showed 18 percent of transgender individuals “do not wish to live full time in a gender other than the one assigned at birth”).
304Id at 455 (reporting that 72 percent of transgender men report no interest in phalloplasty, and 14 percent of transgender women express no desire for vaginoplasty).
305Romeo, Note, 36 Colum Hum Rts L Rev at 742–43 (cited in note 66).
306635 NW2d 717 (Minn 2001).
307Romeo, Note, 36 Colum Hum Rts L Rev at 743 n 109 (cited in note 66), citing generally Goins, 635 NW2d 717.
308Goins, 635 NW2d at 723. See also id at 726 (Page concurring specially).
309See Harper Jean Tobin and Jennifer Levi, Securing Equal Access to Sex-Segregated Facilities for Transgender Students, 28 Wis J L, Gender & Society 301, 319 (2013), citing Hispanic AIDS Forum v Estate of Bruno, 792 NYS2d 43, 46–48 (NY App 2005).
310Romeo, Note, 36 Colum Hum Rts L Rev at 743 n 110 (cited in note 66) (noting Alaska, Massachusetts, New York, and several others).
311Gilden, 23 Berkeley J Gender, L & Just at 96 (cited in note 66). See also Vade, 11 Mich J Gender & L at 262–63 (cited in note 78) (making similar observations).
312See Mara Shulman Ryan, Note, Fields v. Smith: For Transgender Rights, a Battle Won; For Gender Equality, an Opportunity Lost, 34 U La Verne L Rev 113, 131–32 (2012).
313Katherine M. Franke, Introduction: Rosa v. Park West Bank; Do Clothes Really Make the Man?, 7 Mich J Gender & L 143, 144 (2001).
314McGowan, 45 Harv CR–CL L Rev at 205 (cited in note 137).
315Id at 212.
316Id.
317Id at 218.
318See generally Glazer and Kramer, 18 Temple Polit & CR L Rev 651 (cited in note 73).
319Id at 663–66.
320Id at 664.
321Id.
322Glazer and Kramer, 18 Temple Polit & CR L Rev at 664 (cited in note 73).
323Currah, Gender Pluralisms at 18 (cited in note 74). For further proof, consider the treatment employed by transgender advocates in a recent case: “While individuals can alter the way they dress and can change their appearance to some degree through the use of make-up and other accessories, there is a core aspect of gender identity and gender expression that is deeply rooted and that cannot be changed.” Jennifer L. Levi, Clothes Don’t Make the Man (or Woman), but Gender Identity Might, 15 Colum J Gender & L 90, 111 (2006), quoting Brief of Amici Curiae the National Center for Lesbian Rights and Transgender Law Center in Support of Plaintiff-Appellant, Jespersen v Harrah’s Operating Co, Case No 03-15045, *5 (9th Cir filed June 8, 2005) (available on Westlaw at 2005 WL 1501598) (“NCLR-TLC Brief”) (emphasis omitted). See also Levi, 15 Colum J Gender & L at 111 n 104 (cited in note 323), citing NCLR-TLC Brief at *5 n 13 (cited in note 323).
324See generally Jack Harrison, Jaime Grant, and Jody L. Herman, A Gender Not Listed Here: Genderqueers, Gender Rebels, and OtherWise in the National Transgender Discrimination Survey, 2 LGBTQ Pol J 13 (2012); The Report of the 2015 U.S. Transgender Survey (National Center for Transgender Equality, Dec 2016), archived at http://perma.cc/N33V-9UPC.
325Harrison, Grant, and Herman, 2 LGBTQ Pol J at 13–14 (cited in note 324).
326Meerkamper, Note, 12 Dukeminier Awards J at *7 (cited in note 6), citing Harrison, Grant, and Herman, 2 LGBTQ Pol J at 20 (cited in note 324) (noting these observations). Genderqueer respondents, despite the fact that they had completed college or obtained graduate degrees at rates that were higher than other survey respondents, were much more likely to live on less income. See Meerkamper, Note, 12 Dukeminier Awards J at *8 (cited in note 6), citing Harrison, Grant, and Herman, 2 LGBTQ Pol J at 19–20 (cited in note 324) (noting these observations).
327Report of the 2015 U.S. Transgender Survey at *44 (cited in note 324).
328Id (noting also that, in addition to a list of twenty-six terms, respondents wrote in more than five hundred other unique gender terms to describe themselves). For particular discussions of identity variance among trans-identified people of color, see generally Z Nicolazzo, ‘It’s a Hard Line to Walk’: Black Non-binary Trans* Collegians’ Perspectives on Passing, Realness, and Trans*-Normativity, 29 Intl J Qualitative Stud Educ 1173 (2016); Hugh Ryan, Ballroom Culture’s Rich Alternative to the Trans/Cis Model of Gender (Slate, Aug 12, 2016), archived at http://perma.cc/K8T4-W8BW.
329Weston, Gender in Real Time at 82 (cited in note 207).
330Henry Rubin, Self-Made Men: Identity and Embodiment among Transsexual Men 150–52 (Vanderbilt 2003).
331Id. For Rubin, as well as Rubin’s subjects of analysis, “[b]odies are far more important to (gender) identity than are other factors, such as behaviors, personal styles, and sexual preferences.” Id at 11. He continues:

Bodies matter for subjects who are routinely misrecognized by others and whose bodies cause them great emotional and physical discomfort. One would do well to remember this when theorizing about the body. To get our heads around “the body,” we must come to terms with the experiences that subjects have of their bodies. Simply stated, subjectivity matters.

Id.
332Id at 150–51.
333See Henry S. Rubin, Trans Studies: Between a Metaphysics of Presence and Absence, in Kate More and Stephen Whittle, eds, Reclaiming Genders: Transsexual Grammars at the Fin de Siècle 173, 189 (Cassell 1999). Others, like Professor Cressida J. Heyes, have noted that “so much academic literature over-determines and erases the agency of the trans subject in favor of the grasp of technology, medical discourses, history qua regimes of power, or false consciousness. On the other hand,” Heyes also notes that “much popular literature” on transgender experiences is also “naively essentialist,” relying on “tropes of wrong body [and] being ‘born that way’” and thus “feed[ing] into essentializing” approaches to sex and gender itself. Heather Love, Book Review, ‘The Right to Change My Mind’: New Work in Trans Studies, 5 Feminist Theory 91, 94 (2004) (emphasis omitted), quoting Cressida J. Heyes, Book Review, Reading Transgender, Rethinking Women’s Studies, 12 Natl Women’s Stud Assoc J 170, 178–79 (Summer 2000).
334Rubin’s focus on the invisibility of transgender men is echoed by other scholars working in the field. See generally, for example, Jason Cromwell, Transmen and FTMs: Identities, Bodies, Genders, and Sexualities (Illinois 1999). See also Jamison Green, Look! No, Don’t!: The Visibility Dilemma for Transsexual Men, in Stryker and Whittle, eds, Transgender Studies Reader 499, 505–06 (cited in note 4):

Now I feel as if I’m being told by Gender Studies theorists that biology is not destiny unless you are transsexual. I cannot say that I was a man trapped in a female body. I can only say that I was a male spirit alive in a female body, and I chose to bring that body in line with my spirit, and to live the rest of my life as a man. Socially and legally I am a man. And still, I am a different kind of man.
335Butler, Bodies That Matter at 9–10 (cited in note 212).
336Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Cal L Rev 561, 592 (2007), quoting Levi, 15 Colum J Gender & L at 108 (cited in note 323).
337Levi, 15 Colum J Gender & L at 108 (cited in note 323):

[T]his perspective implies that if people could fully embrace their masculinity (from the female-to-male (“FTM”) perspective) or femininity (from the male-to-female perspective), despite the social construction of biologically female traits as feminine or biologically male traits as masculine, no one would ever need to take hormones or have surgery to fully express their gender identity.

Instead, Levi favors a disability approach, although she notes some of its dominant criticisms, namely, that it stigmatizes transgender plaintiffs, that it is underinclusive and overly medicalized, and finally that it essentializes gender. Id at 104–08.
338Trish Salah, Book Review, Undoing Trans Studies, 17 Topia 150, 153 (2007), reviewing Viviane Namaste, Sex Change, Social Change: Reflections on Identity, Institutions and Imperialism (Women’s Press 2005).
3392002 WL 31098541 (ED La).
340Id at *1.
341See id at *1 & nn 11–12.
342Id at *1.
3432002 WL 31098541 at *2. They explained that they were concerned that, if their clients recognized Oiler in his female attire as a Winn-Dixie employee, “they would shop elsewhere and Winn–Dixie would lose business.” Id.
344Id at *5–6, 8.
345Id at *4 n 51, quoting Voyles v Ralph K. Davis Medical Center, 402 F Supp 456, 457 (ND Cal 1975). The court further bolstered its conclusions based on the fact that, despite many attempts to amend, Congress had failed to include protections for gender or sexual identity in Title VII. Oiler, 2002 WL 31098541 at *4–5.
346Oiler, 2002 WL 31098541 at *5.
347Id.
348Id at *6.
349See, for example, Jespersen v Harrah’s Operating Co, 392 F3d 1076, 1077–78, 1083 (9th Cir 2004). See also Rich, 79 NYU L Rev at 1140–41 (cited in note 53) (arguing that employers are able “to discriminate against workers by proxy [by] disproportionately screening out or penalizing workers from disfavored racial/ethnic groups based on aesthetics”).
350See Brian P. McCarthy, Note, Trans Employees and Personal Appearance Standards under Title VII, 50 Ariz L Rev 939, 956–59 (2008).
351Creed v Family Express Corp, 2009 WL 35237, *1 (ND Ind).
352Id.
353Id at *2–3. The codes were sex specific, requiring males to maintain neat and conservative hair and not to wear any jewelry. Id at *2.
354Id at *4.
355Creed, 2009 WL 35237 at *3.
356Id at *4.
357Id at *9. Other cases have reached similar determinations in nontransgender contexts. See, for example, Jespersen, 392 F3d at 1082–83; Harper v Blockbuster Entertainment Corp, 139 F3d 1385, 1387 (11th Cir 1998); Tavora v New York Mercantile Exchange, 101 F3d 907, 908–09 (2d Cir 1996) (per curiam).
358Creed, 2009 WL 35237 at *9.
359Etsitty v Utah Transit Authority, 2005 WL 1505610, *1 (D Utah).
360Id at *1–2.
361Id at *4–6.
362Id at *5. The court then went on to cite “[a]n authoritative treatise” on GID that asserted the following:

Gender Identity Disorder can be distinguished from simple nonconformity to stereotypical sex role behavior by the extent and pervasiveness of the cross-gender wishes, interests and activities. This disorder is not meant to describe a child’s nonconformity to stereotypic sex-role behavior. . . . Rather, it represents a profound disturbance of the individual’s sense of identity with regard to maleness or femaleness.

Id (reflecting the APA diagnostic criteria from DSM-IV).
363Etsitty, 2005 WL 1505610 at *6. On appeal, the Tenth Circuit affirmed the lower court, holding that Ulane was still good law and finding that the employer had provided a nondiscriminatory reason for its actions: that it feared liability from allowing someone with anatomically male genitalia to use a female restroom. Etsitty v Utah Transit Authority, 502 F3d 1215, 1221–27 (10th Cir 2007).
364See Kastl v Maricopa County Community College District, 325 Fed Appx 492, 494 (9th Cir 2009) (finding, like the Etsitty court, that banning the plaintiff from the women’s restroom was motivated by safety reasons and not by her gender).
365Tobias Barrington Wolff, Civil Rights Reform and the Body, 6 Harv L & Pol Rev 201, 201–02 (2012). There are a number of excellent articles on restroom access, noting, of course, that bathroom issues also disproportionately affect particular groups based on class, age, and race, among other characteristics. See generally, for example, Jennifer Levi and Daniel Redman, The Cross-Dressing Case for Bathroom Equality, 34 Seattle U L Rev 133 (2010); Transgender Youth and Access to Gendered Spaces in Education, 127 Harv L Rev 1722 (2014).
366Wolff, 6 Harv L & Pol Rev at 202 (cited in note 365).
367Id.
368National Defense Authorization Act for Fiscal Year 1994, Pub L No 103-160, 107 Stat 1671, repealed by Don’t Ask Don’t Tell Repeal Act of 2010, Pub L No 111-321, 124 Stat 3515, codified at 10 USC § 654.
369Wolff, 6 Harv L & Pol Rev at 203 (cited in note 365).
370Employment Non-discrimination Act of 2013 § 8(a), S 815, 113th Cong, 1st Sess (Apr 25, 2013), in 159 Cong Rec S7907, S7908 (daily ed Nov 7, 2013):

Nothing in this Act shall prohibit an employer from requiring an employee, during the employee’s hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of Federal, State, or local law, provided that the employer permits any employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that the employee has undergone or is undergoing gender transition . . . to adhere to the same dress or grooming standards as apply for the gender to which the employee has transitioned or is transitioning.

See also Gilden, 23 Berkeley J Gender, L & Just at 108 (cited in note 66) (discussing comments made by Representative Barney Frank, one of ENDA’s sponsors, who noted that employers would not be forced to hire a person “with a beard wearing a dress”).
371Wolff, 6 Harv L & Pol Rev at 201–02 (cited in note 365). See also the commentary of Andrew Beckwith, president of the Massachusetts Family Institute, who observed, in reference to proposed legislation protecting transgender access to restrooms:

[T]hat’s why you see individuals who claim to be transfemale–if that’s the proper terminology–but they’re biological men going into women’s dressing rooms and exploiting these laws whether they’re just doing it as folks with gender identity issues or abusing them. It’s unclear because it’s hard to nail down what exactly someone’s gender identity is because it all boils doing to what their internal feelings are. But what’s black and white is if you take a guy like Bruce Jenner–I know he calls himself Caitlyn now but as far as I understand he is still an intact male. If he walks into a locker room at the local Y where my wife and her daughter are changing, they’re going to be exposed to his male genitalia. Regardless of what he looks like on the cover of Vanity Fair or what he calls himself on his TV show, he is still an intact biological male with an XY chromosome.

North Carolina’s HB2 Controversy, Transgender Legislation, and Litigation (Legal Talk Network, Apr 25, 2016), archived at http://perma.cc/RT75-NLE9.
372Wolff, 6 Harv L & Pol Rev at 205–06 (cited in note 365) (alteration in original), quoting STOP the CT “Bathroom Bill” (Gives Cross-Dressing Men Access to Women’s Restrooms, Locker Rooms) (Free Republic, May 10, 2011), archived at http://perma.cc/PT9M-4BV3.
373Wolff, 6 Harv L & Pol Rev at 207 (cited in note 365).
374Id at 207–08.
375Steve Harrison, On HB2, Attention Shifts from Bathrooms to Showers. How Would Charlotte Ordinance Have Handled That? (Charlotte Observer, May 26, 2016), archived at http://perma.cc/Z5BB-CMAQ, quoting Complaint for Declaratory and Injunctive Relief, Texas v United States, Case No 7:16-cv-00054-O, *3 (ND Tex filed May 25, 2016).
376HB2 § 1.2, codified at NC Gen Stat § 115C-521.2.
377See Vanita Gupta, Principal Deputy Assistant Attorney General, Letter to Pat McCrory, Governor of the State of North Carolina *1 (May 4, 2016), archived at http://perma.cc/RNB8-3V97.
378Scott Skinner-Thompson, North Carolina’s Catch-22 (Slate, May 16, 2016), archived at http://perma.cc/M6ET-T92F.
379See, for example, Schroer, 577 F Supp 2d at 306–08.
380Texas v United States, 2016 WL 4426495, *14 (ND Tex).
381Id at *15.
382Id at *6.
383Id at *15, quoting G.G. v Gloucester County School Board, 822 F3d 709, 736–37 (4th Cir 2016) (Niemeyer concurring in part and dissenting in part), vacd and remd, 2017 WL 855755 (US).
384See David S. Cohen, The Stubborn Persistence of Sex Segregation, 20.1 Colum J Gender & L 51, 60–101 (2011) (discussing many forms of institutional sex segregation).
385See Dean Spade, The Only Way to End Racialized Gender Violence in Prisons Is to End Prisons: A Response to Russell Robinson’s “Masculinity as Prison”, 3 Cal L Rev Cir 184, 186–90 (2012). See also Pooja Gehi, Gendered (In)Security: Migration and Criminalization in the Security State, 35 Harv J L & Gender 357, 374–76, 385–87 (2012).
386See Gabriel Arkles, Correcting Race and Gender: Prison Regulation of Social Hierarchy through Dress, 87 NYU L Rev 859, 896–905 (2012).
387Robinson, 99 Cal L Rev at 1356–61 (cited in note 210). Robinson has explored the significance of the K6G unit of the Los Angeles County Jail, which is ostensibly designed to protect individuals who might face abuse or harassment based on their self-identified gay sexual orientation or gender nonconforming appearance. Id at 1311. Yet as Robinson points out, the standards for determining who belongs in K6G are not only stereotypically constructed, but are also significantly underinclusive of other individuals who may be just as deserving of protection (as they exclude, for example, some men who have had sex with men, or gay-identified men who lead private lives), and also overlook the racialized dimensions of identity. Id at 1345–49. See also Rosenblum, 6 Mich J Gender & L at 522–36 (cited in note 66) (describing the problems faced by transgender prisoners, who are often placed in facilities according to the sex assigned to them at birth); Oparah, 18 UCLA Women’s L J at 242 (cited in note 78) (“By assuming, erroneously, that all people incarcerated in women’s prisons are women, and that all imprisoned women are in women’s prisons, we have overlooked and misrepresented the gender fluidity and multiplicity that exists in men’s and women’s prisons, jails and detention centers.”); Elizabeth F. Emens, Inside Out, 2 Cal L Rev Cir 95, 96–99 (2011) (commenting on Robinson’s discussion of K6G); Gabriel Arkles, Safety and Solidarity across Gender Lines: Rethinking Segregation of Transgender People in Detention, 18 Temple Polit & CR L Rev 515, 537–60 (2009) (questioning the utility of segregated facilities for transgender inmates and making alternative suggestions for preventing violence). For a different, more positive view of K6G, see generally Sharon Dolovich, Two Models of the Prison: Accidental Humanity and Hypermasculinity in the L.A. County Jail, 102 J Crim L & Crimin 965 (2012). It bears noting, however, that many of these policies have now changed. In both 2012 and 2016, the Department of Justice issued guidelines stating that policies that segregate “based solely on [the inmates’] external genital anatomy” violate a federal standard that “mandates that prisons consider both inmates’ gender identity and personal concerns about safety.” Brandon Ellington Patterson, Justice Department Takes Steps to Protect Transgender Prisoners (Mother Jones, Mar 25, 2016), archived at http://perma.cc/MZM4-DNBB. See also generally Thomas R. Kane, Transgender Offender Manual (Department of Justice, Federal Bureau of Prisons, Jan 18, 2017), archived at http://perma.cc/6C2J-6YTY; Know Your Rights: Laws, Court Decisions, and Advocacy Tips to Protect Transgender Prisoners (ACLU and National Center for Lesbian Rights, Dec 1, 2014), archived at http://perma.cc/V5YV-YUNW.
388See De’Lonta v Johnson, 708 F3d 520, 526–27 (4th Cir 2013).
389Id at 522.
390Id at 523–24. At the time of litigation, the standards of care adopted by the World Professional Association for Transgender Health advised a “triadic treatment sequence compris[ing] [ ] (1) hormone therapy; (2) a real-life experience of living as a member of the opposite sex; and (3) sex reassignment surgery.” Id at 522–23 (quotation marks omitted). According to these recommendations, “after at least one year of hormone therapy and living in the patient’s identified gender role, sex reassignment surgery may be necessary” for those who have persistent symptoms of GID. Id at 523.
391Id at 525–26.
392In 2010, for example, the US Tax Court decided that expenses related to medical treatments for transgender individuals were tax deductible. See O’Donnabhain v Commissioner of Internal Revenue, 134 Tax Ct 34, 74–77 (2010). See also Travis Wright Colopy, Note, Setting Gender Identity Free: Expanding Treatment for Transsexual Inmates, 22 Health Matrix 227, 239–44 (2012).
393Colopy, Note, 22 Health Matrix at 250 & n 170 (cited in note 392) (listing cases).
394Id at 251. Note that in 2014, the Federal Bureau of Prisons provided that “inmates in the custody of the Bureau with a possible diagnosis of GID will receive a current individualized assessment and evaluation” and that “[t]reatment options will not be precluded solely due to level of services received, or lack of services, prior to incarceration.” See Charles E. Samuels Jr, Patient Care *42 (Department of Justice, Federal Bureau of Prisons, June 3, 2014), archived at http://perma.cc/WN77-E938.
395Colopy, Note, 22 Health Matrix at 255 (cited in note 392).
396Id at 255, 264–65. At least one state, California, now funds gender confirmation surgery for prisoners. See California Is First to Pay for Prisoner’s Sex-Reassignment Surgery (NY Times, Jan 7, 2017), online at http://www.nytimes.com/2017/01/07/us/california-is-first-to-pay-for-prisoners-sex-reassignment-surgery.html (visited Mar 5, 2017) (Perma archive unavailable).
3972005 Wis Laws 105.
398Wis Stat § 302.386(5m), held unconstitutional by Fields v Smith, 653 F3d 550, 559 (7th Cir 2011). The legislation was designed to prevent

[t]he department [from] authoriz[ing] the payment of any funds or the use of any resources of this state or the payment of any federal funds passing through the state treasury to provide or to facilitate the provision of hormonal therapy . . . for a resident or patient . . . [who would use the] hormones to stimulate the development or alteration of [his or her] sexual characteristics in order to alter [his or her] physical appearance so that [he or she] appears more like the opposite gender.

Ryan, Note, 34 U La Verne L Rev at 125–26 (cited in note 312) (brackets and ellipses in original).
399Fields v Smith, 712 F Supp 2d 830, 855–69 (ED Wis 2010), affd, 653 F3d 550 (7th Cir 2011).
400Ryan, Note, 34 U La Verne L Rev at 127–29 (cited in note 312), quoting Fields, 712 F Supp 2d at 841–43.
401See Ryan, Note, 34 U La Verne L Rev at 120–25 (cited in note 312).
402Vade, 11 Mich J Gender & L at 265–66 (cited in note 78).
403Dunlap, 30 Hastings L J at 1147–48 (cited in note 62).
404Paisley Currah, Defending Genders: Sex and Gender Non-conformity in the Civil Rights Strategies of Sexual Minorities, 48 Hastings L J 1363, 1364 (1997).
405Id.
406See Gayle Rubin, Of Catamites and Kings: Reflections on Butch, Gender, and Boundaries, in Stryker and Whittle, eds, Transgender Studies Reader 471, 479 (cited in note 4) (“Instead of fighting for immaculate classifications and impenetrable boundaries, let us strive to maintain a community that understands diversity as a gift [and] sees anomalies as precious.”).
407See Davidson, 61 Vand L Rev at 1610–16 (cited in note 36) (noting the dynamism present in the numerus clausus system of property).
408Id at 1637–44.
409See Avihay Dorfman, Property and Collective Undertaking: The Principle of Numerus Clausus, 61 U Toronto L J 467, 510–14 (2011).
410See Hanoch Dagan, Property: Values and Institutions 33–35 (Oxford 2011) (defending the virtue of common-law alternatives).
411Hansmann and Kraakman, 31 J Legal Stud at S395–S402 (cited in note 36).
412Cooper and Renz, 43 J L & Society at 493 (cited in note 38).
413Davidson, 61 Vand L Rev at 1648 (cited in note 36).
414See Dagan, Property at 34 (cited in note 410).
415Id.
416Id.
417Hanoch Dagan, Private Law Pluralism and the Rule of Law, in Lisa M. Austin and Dennis Klimchuk, eds, Private Law and the Rule of Law 158, 158–59 (Oxford 2014). See also generally Jedediah Purdy, Some Pluralism about Pluralism: A Comment on Hanoch Dagan’s “Pluralism and Perfectionism in Private Law”, 113 Colum L Rev Sidebar 9 (2013).
418Ian Ayres, Menus Matter, 73 U Chi L Rev 3, 9 (2006) (noting the value in having “menus” when default rules are nonmajoritarian or impose penalties).
419See Currah, Gender Pluralisms at 18 (cited in note 74) (proposing a similar conclusion based on the language of the International Bill of Gender Rights, which declares that “all human beings have the right to define their own gender identity regardless of chromosomal sex, genitalia, assigned birth sex, or initial gender role”).
420See text accompanying notes 324–26. Note, of course, that there are also broader issues with empirical data collection as well. See Spade, 59 Hastings L J at 749–50 (cited in note 88).
421See Denny, Transgender Communities of the United States at 180 (cited in note 120).
422See generally Sandy Stone, The Empire Strikes Back: A Posttranssexual Manifesto (1987), archived at http://perma.cc/89TC-BEPD.
423Id at *12–13. See also Denny, Transgender Communities of the United States at 178–79 (cited in note 120).
424Denny, Transgender Communities of the United States at 178–81 (cited in note 120).
425Id at 182.
426Vade, 11 Mich J Gender & L at 268–70 (cited in note 78).
427Id at 267–68.
428William N. Eskridge Jr, Family Law Pluralism: The Guided-Choice Regime of Menus, Default Rules, and Override Rules, 100 Georgetown L J 1881, 1892–1901 (2012). Note Eskridge’s definition: “[m]andatory rules” are “rules or directives that parties . . . must accept as binding”; “[d]efault rules” are directives that can be changed “by contracting around the default”; and “[o]verride rules” are “the legal steps or requirements that . . . must [be] follow[ed] . . . to contract around” the default rule regime. Id at 1902. Note that override rules are also called “altering rules” by Professor Ian Ayres. See Ian Ayres, Regulating Opt-Out: An Economic Theory of Altering Rules, 121 Yale L J 2032, 2036 (2012); Ayres, 73 U Chi L Rev at 6 (cited in note 418).
429See Eskridge, 100 Georgetown L J at 1889–91 (cited in note 428).
430See Cooper and Renz, 43 J L & Society at 503 (cited in note 38) (reaching similar observations).
431See id at 496 (noting the utility of an “official” gender status, but observing that “just because states withdraw from determining and assigning gender does not mean they cannot recognize gender determinations by others”) (emphasis omitted).
432See generally David B. Cruz, Disestablishing Sex and Gender, 90 Cal L Rev 997 (2002). See also Laura K. Langley, Note, Self-Determination in a Gender Fundamentalist State: Toward Legal Liberation of Transgender Identities, 12 Tex J CL & CR 101, 117 (2006) (“Asserting a right to gender self-determination disestablishes the state’s power to define the categories of male and female.”). Others have adopted a similar disestablishment approach in family law. See generally, for example, Alice Ristroph and Melissa Murray, Disestablishing the Family, 119 Yale L J 1236 (2010).
433Cruz, 18 Duke J Gender L & Pol at 215 (cited in note 165).
434Cruz, 90 Cal L Rev at 1054–84 (cited in note 432).
435Id at 1056.
436Id at 1042.
437Id at 1048–50.
438Cruz, 90 Cal L Rev at 1050 (cited in note 432).
439Id at 1050–54.
440Id at 1052.
441See Spade, 59 Hastings L J at 806 (cited in note 88).
442For more on the concept of gender autonomy, see generally Weiss, 5 J Race, Gender & Ethnicity 2 (cited in note 33).
443EEOC Doc No 0120120821, 2012 WL 1435995.
444See Part II.C.
445See Langley, Note, 12 Tex J CL & CR at 103–05 (cited in note 432) (commenting on the complexity of individual self-identification in the areas of race, nationality, class, sexual orientation, and religion, among other categories). See also text accompanying notes 324–26.
446See note 91 and accompanying text. The Veterans Health Administration has also implemented a similar policy, as did the Social Security Administration. See Veterans Administration Makes Important Clarification on Records Policy (National Center for Transgender Equality), archived at http://perma.cc/Z6CX-X49X; Transgender People and the Social Security Administration (National Center for Transgender Equality, June 2013), archived at http://perma.cc/3PGC-6BEZ.
447See notes 94–99 and accompanying text.
448See Meerkamper, Note, 12 Dukeminier Awards J at *9 (cited in note 6). For an excellent treatment of the privacy arguments, see Mottet, 19 Mich J Gender & L at 437–47 (cited in note 94). Some argue that the state should cease collecting birth marker information entirely. See Elizabeth Reilly, Radical Tweak—Relocating the Power to Assign Sex: From Enforcer of Differentiation to Facilitator of Inclusiveness; Revising the Response to Intersexuality, 12 Cardozo J L & Gender 297, 318–28 (2005).
449See Michael Bochenek and Kyle Knight, Establishing a Third Gender Category in Nepal: Process and Prognosis, 26 Emory Intl L Rev 11, 12–13 (2012), citing Controlling Bodies, Denying Identities: Human Rights Violations against Trans People in the Netherlands *80 (Human Rights Watch 2011), archived at http://perma.cc/2ZDL-43SU (emphasizing the importance, for human rights, of establishing a recognized third gender category).
450See Bochenek and Knight, 26 Emory Intl L Rev at 26–27 (cited in note 449), quoting Doc 9303: Machine Readable Travel Documents; Part 4: Specifications for Machine Readable Passports (MRPs) and Other TD3 Size MRTDs *14 (International Civil Aviation Organization 7th ed 2015), archived at http://perma.cc/QFC9-XU6P. Similar options are available in Nepal, India, and Pakistan. Bochenek and Knight, 26 Emory Intl L Rev at 29–30 (cited in note 449).
451Bochenek and Knight, 26 Emory Intl L Rev at 28 (cited in note 449).
452Id.
453Id at 28–29. See also Information about Changing Sex/Gender Identity (New Zealand Department of Internal Affairs), archived at http://perma.cc/HG67-QLQC.
454Bochenek and Knight, 26 Emory Intl L Rev at 28–29 (cited in note 449). See also Information about Changing Sex/Gender Identity (cited in note 453).
455See Evan B. Towle and Lynn M. Morgan, Romancing the Transgender Native: Rethinking the Use of the “Third Gender” Concept, in Stryker and Whittle, eds, Transgender Studies Reader 666, 666–67, 676 (cited in note 4) (noting that the concept of a third gender is itself “flawed because it subsumes all non-Western, nonbinary identities, practices, terminologies, and histories” into a single term, a “junk drawer into which a great non-Western gender miscellany is carelessly dumped”).
456Id at 667, 674–76 (noting Kate Bornstein and Leslie Feinberg as examples of popular writers who have referred to third genders in their work).
457Id at 671, citing Marjorie Garber, Vested Interests: Cross-Dressing and Cultural Anxiety 11 (HarperPerennial 1993).
458Katrina Roen, “Either/or” and “Both/Neither”: Discursive Tensions in Transgender Politics, 27 Signs: J Women Culture & Society 501, 510 (2002) (ellipses in original), quoting Zachary I. Nataf, Lesbians Talk Transgender 57–58 (Scarlet 1996).
459Terry S. Kogan, Transsexuals and Critical Gender Theory: The Possibility of a Restroom Labeled “Other”, 48 Hastings L J 1223, 1245–47 (1997).
460Id at 1247.
461Some intersex activists question whether a third gender would be helpful. See, for example, Alice D. Dreger and April M. Herndon, Progress and Politics in the Intersex Rights Movement, 15 GLQ: J Lesbian & Gay Stud 199, 217 (2009) (noting that some intersex activists argue that, because intersex is not a discrete category, “someone would always be deciding who to raise as male, female, or intersex: three categories don’t solve the problem any more than two or five or ten do”).
462Towle and Morgan, Romancing the Transgender Native at 677 (cited in note 455).
463Id.
464Id, quoting Anuja Agrawal, Gendered Bodies: The Case of the “Third Gender” in India, 31 Contributions Indian Sociology 273, 294 (1997).
465See Clarke, 103 Cal L Rev at 764 (cited in note 58).
466Id (brackets and ellipsis omitted).
467S. Elizabeth Malloy, What Best to Protect Transsexuals from Discrimination: Using Current Legislation or Adopting a New Judicial Framework, 32 Women’s Rts L Rptr 283, 318 (2011).
468See Argentina Gender Identity Law (Transgender Europe, Sept 12, 2013), archived at http://perma.cc/LN9G-FWPG.
469Id at Art 11. See also Emily Schmall, Transgender Advocates Hail Law Easing Rules in Argentina (NY Times, May 24, 2012), online at http://www.nytimes.com/2012/05/25/world/americas/transgender-advocates-hail-argentina-law.html (visited Nov 10, 2016) (Perma archive unavailable).
470Mexico: Mexico City Amends Civil Code to Include Transgender Rights (OutRight Action International, June 15, 2004), archived at http://perma.cc/4A3A-PVWK.
471Rappole, Comment, 30 Md J Intl L at 206–10 (cited in note 8).
472For example, California is considering a law that would allow individuals to change their designation to “nonbinary” on official documentation. See California Senate SB-179 (cited in note 3). In addition, Uruguay, Spain, South Africa, and the United Kingdom all have relaxed their standards for transition. See Uruguay Approves Historic Transgender Law (On Top Magazine, Oct 14, 2009), archived at http://perma.cc/6VKD-NQ3K; Thamar Klein, Querying Medical and Legal Discourses of Queer Sexes and Genders in South Africa, 10 Anthro Matters J 1, 8–10 (2008); Harper Jean Tobin, Note, Against the Surgical Requirement for Change of Legal Sex, 38 Case W Res J Intl L 393, 429–34 (2006–2007).
473See Facebook Expands Gender Options: Transgender Activists Hail “Big Advance” (The Guardian, Feb 14, 2014), archived at http://perma.cc/9MGJ-87R9.
474Id.
475Id. At the same time that the decision was hailed by the trans community and its allies, however, it was disparaged by others. Consider this statement from an analyst for Focus on the Family, a religious organization:

Of course Facebook is entitled to manage its wildly popular site as it sees fit, but . . . it’s impossible to deny the biological reality that humanity is divided into two halves–male and female. . . .

Those petitioning for the change insist that there are an infinite number of genders, but just saying it doesn’t make it so.

Id.
476Palmer, Note, 37 Hofstra L Rev at 898–99 (cited in note 239) (brackets omitted) (providing definitions of the terms as used by other scholars). See also Diagram of Sex and Gender (Center for Gender Sanity), archived at http://perma.cc/59UW-TH4R (using similar definitions of gender expression and gender identity).
477See Stryker, (De)Subjugated Knowledges at 9 (cited in note 4) (making this distinction).
478Matthew Waites, Critique of “Sexual Orientation” and “Gender Identity” in Human Rights Discourse: Global Queer Politics beyond the Yogyakarta Principles, 15 Contemp Polit 137, 147 (2009).
479See The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity *24 (Mar 2007), archived at http://perma.cc/2QEG-N7MK.
480See generally Mark A. Lemley, Book Review, Romantic Authorship and the Rhetoric of Property, 75 Tex L Rev 873 (1997), reviewing James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Harvard 1996) (discussing the notion of the romantic author).
481See Campbell v Acuff-Rose Music, Inc, 510 US 569, 580–81 (1994).
482Others have made similar arguments. See, for example, Jeffrey Kosbie, (No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech, 19 Wm & Mary J Women & L 187, 203–21 (2013).
483See Cohen, 20.1 Colum J Gender & L at 106 & n 238 (cited in note 384). See also id at 123 n 323, quoting Catharine A. MacKinnon, Sex Equality 5 (Foundation Press 2d ed 2007) (“[I]f one is the same, one is to be treated the same; if one is different, one is to be treated differently.”).
484Cohen, 20.1 Colum J Gender & L at 102 (cited in note 384), citing Craig v Boren, 429 US 190, 197 (1976).
485Cohen, 20.1 Colum J Gender & L at 103 (cited in note 384).
486See id at 103–04, citing generally Mississippi University for Women v Hogan, 458 US 718 (1982), United States v Virginia, 518 US 515 (1996), and Rostker v Goldberg, 453 US 57 (1981).
487See Cohen, 20.1 Colum J Gender & L at 106 (cited in note 384).
488Flynn, 18 Temple Polit & CR L Rev at 474–75 (cited in note 66) (criticizing this approach as ignoring the ongoing threat of gender discrimination).
489Currah, Juang, and Minter, Introduction at xvii–xix (cited in note 1).
490Id at xvii.
491See G.G., 822 F3d at 720, vacd and remd, 2017 WL 855755 (US).
492See Kosbie, 19 Wm & Mary J Women & L at 218 (cited in note 482).
493Flynn, 18 Temple Polit & CR L Rev at 475 (cited in note 66).
494Id.
495Currah, Gender Pluralisms at 22 (cited in note 74).
496Id at 23 (quoting a 2003 Boston nondiscrimination law).
497Id.
498Id.
499Palmer, Note, 37 Hofstra L Rev at 889 (cited in note 239) (quoting from a 2007 version of ENDA). Although the bill would have required employers to provide adequate shower or dressing facilities to transitioning employees, it did not prohibit them from enacting reasonable dress or grooming standards. Id.
500Id at 890–91.
501Currah, Gender Pluralisms at 6 (cited in note 74) (observing that legislation tends “to place gender nonconforming identities and practices on a continuum of gender, rather than create a new category of a protected class”).
502See Case, 66 Stan L Rev at 1368 (cited in note 234) (noting that ENDA carries these risks).
503Id (emphasis added), quoting Cal Gov Code § 12949.
504Case, 66 Stan L Rev at 1368 (cited in note 234).

Article

Civil Rights Gender Studies Intellectual Property Property Law

84.1

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.

Balancing Implied Fundamental Rights and Reliance Interests: A Framework for Limiting the Retroactive Effects of Obergefell in Property Cases

ksmith — Thu, 23 Feb 2017 01:22:00 +0000

Balancing Implied Fundamental Rights and Reliance Interests: A Framework for Limiting the Retroactive Effects of Obergefell in Property Cases

Huiyi Chen

LLB 2011, Tsinghua University; MA 2013, Harvard University; JD Candidate 2017, The University of Chicago Law School.

ksmith Wed, 02/22/2017 - 19:22

February 22, 2017

PDF

I. Four Retroactivity Modes: A Summary of Current Law

This Part summarizes both the development of the Supreme Court’s retroactivity precedents and the current state of the law. Part I.A begins with an introduction to the jurisprudential underpinnings of retroactivity and delineates four possible modes as reference points for a later discussion of actual cases. Part I.B then discusses the Court’s retroactivity precedents in criminal law, foreshadowing a discussion of the development of retroactivity in civil litigation in Part I.C.

A. Jurisprudential Underpinnings and the Four Potential Modes of Retroactivity

There are two opposing jurisprudential theories of retroactivity. One is the Blackstonian or declaratory theory: A judge’s role is to discover and not to make law. It is impossible for the law to change at the hands of a judge. If a judge “discovers” a new rule, it is understood to have been the law from time immemorial, and there is technically no retroactivity problem.30 In line with this theory, the Supreme Court once announced––in the context of overruling unconstitutional precedents––that “[a]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”31 In effect, it is a complete retroactive application of the “new” constitutional rule to all underlying facts that happened before the announcement of the new rule.

The other jurisprudential theory is the Austinian or positive law theory: Judicial opinions, just like legislation, are the command of the sovereign.32 When the court announces a rule that differs from a past rule, the law changes accordingly. Under this model, one must answer the “thorny” question whether the new rule is applicable to underlying facts occurring in the past.33

On a less abstract level, there are four relevant temporal points in defining retroactivity: (1) when the events or facts giving rise to the legal claim occur (“Transaction Time”); (2) when a party files a lawsuit (“Filing Time”); (3) when a new constitutional rule is rendered, often by a Supreme Court decision (“New Rule Time”); and (4) when the lawsuit closes (“Closing Time”). As shown in Table 1, there are four possible sequences for these events, the only difference being the relative position of the New Rule Time.

Table 1

Mode 1 refers to a scenario in which the underlying facts happen after the New Rule Time. There is no retroactivity problem because, strictly speaking, there is no “new rule” for the litigants. Instead, there is simply an application of the rule that existed at the Transaction Time. A retroactivity rule that requires application of the new rule only to cases under Mode 1 is called “pure prospectivity.”34

Mode 4 is another extreme scenario: the New Rule Time occurs after a case has reached finality, when res judicata and issue preclusion are applicable. Mode 4 also includes cases on collateral attack, such as federal habeas corpus cases.35 A rule that requires retroactivity even under Mode 4 is called “pure retroactivity.”36 In contrast, a rule that requires retroactivity for all cases except those under Mode 4 is called “full retroactivity.”37

Modes 2 and 3 are the hard cases. Retroactivity under Mode 3 requires the new rule be applied either (1) to all cases pending before courts at the New Rule Time or (2) only to the case in which the new rule is announced, but not to any other case pending at the New Rule Time. This second possibility is called “selective prospectivity.”38 Mode 3 is the scenario of Hard, the wrongful death case recently decided by the Eleventh Circuit. Mode 2 differs from Mode 3 in only one respect: the litigant already knows about the new rule when she files the suit in Mode 2, but the transaction underlying the suit occurred when the old rule was still in effect in both modes. Mode 2, in the Obergefell context, refers to the scenario involving Amy, Margaret, and Mark—the marriage and property transaction happened before Obergefell, and Margaret has not yet filed her case. It is here that future litigation about the retroactivity of Obergefell will likely arise.

Table 2 provides a summary of the link between the different retroactivity rules and the four modes.

Table 2

B. The Warren Court and Retroactivity in Criminal Law

The Supreme Court’s retroactivity jurisprudence has experienced significant shifts beginning in the 1960s, when changes occurred against the backdrop of the Warren Court’s expansion of criminal procedural rights through the overruling of constitutional precedents.39 One scholar remarked that “[b]y 1959, the number of instances in which the Court had reversals involving constitutional issues had grown to sixty; in the two decades which followed, the Court overruled constitutional cases on no less than forty-seven occasions.”40

The expansion of procedural rights might give prisoners an opportunity to challenge convictions that no longer appear constitutional. But motivated by the liberal justices’ need to avoid a legal prison break (a retroactive application of the new rules that might acquit many prisoners) and the conservative justices’ desire to engage in “damage control” for new rules they disliked,41 the Court broke from the norm42 of Blackstonian retroactivity.43 In Linkletter v Walker,44 the Court held that an exclusionary rule did not apply retroactively to a habeas petitioner who was convicted before the rule was announced.45 The Court reasoned that “the Constitution neither prohibits nor requires retrospective effect,”46 but reached in dictum a general rule of retroactivity for all cases on direct review.47 As for habeas cases (Mode 4), the Court held that there was “no set principle of absolute retroactive invalidity.”48 The retroactivity of the new rule depended on the consideration of three factors: “the purpose of the [new] rule; the reliance placed upon the [old rule]; and the effect on the administration of justice.”49

In the aftermath of Linkletter, some scholars severely criticized the factor-balancing approach to habeas cases. These scholars reasoned that the new rule should be retroactively applied in all cases to free prisoners whose convictions were contaminated by violations of the rule.50 This argument was based on the fact that these “constitutional rights” reflected “fundamental norms”51 and the idea that the unreasonable reliance of state governments on the old rule should not be protected.52

Two years after Linkletter, in Stovall v Denno,53 the Court affirmed the three-factor discretionary approach in Linkletter but recognized that the different treatment of cases on direct and collateral review could not be justified.54 It rejected retroactive application of any new rule in all cases on direct or collateral review, except in the case in which the new rule was announced to avoid transforming the rule into a “mere dictum.”55 This is a rule of selective prospectivity.56 Justice John Marshall Harlan II criticized the selective prospectivity rule in several dissenting and concurring opinions 57 and characterized the rule as “[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.”58

Harlan lost the battle, but won the war. In Griffith v Kentucky,59 a criminal case on direct review, the Court abandoned the discretionary approach to retroactivity and held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.”60 In Teague v Lane,61 a case almost identical to Griffith except for its habeas status, the Court clarified that the Griffith rule of general retroactivity does not apply to habeas cases.62 With some refinement to the Teague rule,63 the controlling rule in criminal law is full retroactivity: a new constitutional rule applies retroactively to all pending and future cases on direct review, but generally not to habeas cases (that is, Mode 4 cases). Although not directly relevant to the Obergefell problem, the development of the Supreme Court’s retroactivity jurisprudence in criminal law foreshadows the development of the Court’s retroactivity jurisprudence in the civil context.

C. Retroactivity in Civil Litigation: From Chevron Oil to Reynoldsville Casket

The Supreme Court’s civil retroactivity precedents have gone through a similar retroactivity—prospectivity—retroactivity pendulum. But they also present three unique questions: (1) Do differences between civil and criminal cases suggest that a different treatment of retroactivity is necessary? (2) If so, is pure prospectivity still a possibility in the civil arena? (3) What is the difference between the issue of retroactivity and the issue of remedy? The following distillation of Supreme Court precedents aims to answer those three questions.

Chevron Oil Co v Huson64 is the civil counterpart of Linkletter. The plaintiff was injured “while working on [the defendant’s] artificial island drilling rig,” located off the Louisiana coast.65 The plaintiff brought a suit that was timely under the laches doctrine that had historically been thought to govern such actions.66 The Supreme Court, however, rendered a decision while the case was pending, holding that Louisiana’s one-year statute of limitations, rather than the laches doctrine, governed actions for personal injuries occurring on artificial structures at sea.67 The new rule would bar the plaintiff’s claim if applied retroactively. In Chevron Oil, the Court proposed a three-factor discretionary approach: (1) whether the decision “establish[ed] a new principle of law”; (2) whether retroactive application would “further or retard [the new rule’s] operation”; and (3) whether retroactive application would “produce substantial inequitable results.”68 After analyzing the three factors, especially considering the plaintiff’s hardship in light of his justifiable reliance on the laches doctrine, the Court concluded that the new statute of limitations did not apply retroactively.69

The soundness of the Chevron Oil test was challenged in American Trucking Associations, Inc v Smith,70 in which only a plurality of the justices applied Chevron Oil’s retroactivity test.71 At issue was whether an intervening Supreme Court decision holding unconstitutional a state’s flat tax scheme on highway trucks applied retroactively to a case involving a similar tax scheme.72 The plurality insisted on applying the Chevron Oil test and held that the new constitutional decision did not apply retroactively, despite the fact that the litigants in the intervening decision obtained a tax refund as a remedy.73 Justice Sandra Day O’Connor, writing for the plurality, emphasized the government’s justifiable reliance on the old rule and the severe administrative burden if a refund was granted in the current case.74

The dissenting opinion, endorsed by four justices, explicitly rejected Chevron Oil’s discretionary framework, reasoning that unequal treatment of similarly situated litigants (such as those in the intervening decision and in the case at bar) was not acceptable.75 The dissenters urged the Court to instead follow Griffith’s abandonment of selective prospectivity.76 Interestingly, the dissenting opinion distinguished between “remedy” and “retroactivity,” and reasoned that Chevron Oil was about the former, not the latter.77 In the words of Justice John Paul Stevens:

A decision may be denied “retroactive effect” in the sense that conduct occurring prior to the date of decision is not judged under current law, or it may be denied “retroactive effect” in the sense that independent principles of law limit the relief that a court may provide under current law.78

While retroactivity is a question of federal law that is binding on state courts, remedy is “a mixed question of state and federal law” upon which state courts may exercise some discretion.79 Essentially, the dissenters rejected selective prospectivity—if the new rule is retroactively applied in the intervening case, it must also be applied to all other pending cases. However, they also acknowledged that the retroactive application of the new rule may not be outcome determinative—some independent principle of law, such as statutes of limitations or res judicata, may bar relief or retroactive effect to the parties.80

Justice Antonin Scalia was the swing vote in American Trucking, yet his reasons for concurring in the judgment were very different from those of the plurality. He agreed with the dissenting opinion that prospective overruling was inconsistent with federal judges’ Article III role.81 But, because he dissented in the intervening decision, he thought it “necessary” for him, “at least where his vote is necessary to the disposition of the case,” to resist the retroactive application of the new rule he had previously opposed.82

O’Connor fought against the dissent’s demand to follow Griffith because of the differences she perceived in civil and criminal law. First, retroactive application of new procedural rules in criminal cases inevitably benefits defendants, while in civil cases both plaintiffs and defendants may be benefited or harmed. In civil cases, therefore, there is no special reason for retroactive application.83 Second, a prospectivity rule does not preclude the relying party in civil cases from enjoying all of the new rule’s benefits. In the context of a tax, for example, the plaintiff could at least expect a future tax exemption. But in criminal cases, the only relief the defendant cares about is acquittal, which can be obtained only by retroactive application of the new procedural rule.84

A year after American Trucking, the Court again tried to clarify the thorny issue of retroactivity in James B. Beam Distilling Co v Georgia,85 producing five opinions, none controlling.86 The plaintiff wanted to take advantage of a newly announced rule invalidating discriminatory excise taxes imposed on alcoholic beverages to obtain a tax refund under a similar tax scheme.87 This time, a majority of the justices permitted retroactive application of the new rule, but remanded the case to state court to determine the remedy.88 A majority of the justices rejected selective prospectivity (applying the new rule only to the case in which it is announced but not to any other pending case) because it treated litigants in similar situations unequally.89 Yet only three of them explicitly overruled Chevron Oil and the possibility of pure prospectivity (applying the new rule only to future facts).90 The other three either implicity91 or explicitly92 preserved pure prospectivity for future cases, as did the three dissenting justices.93 Therefore, although a majority of justices rejected selective prospectivity, an equal number of justices preserved the possibility of pure prospectivity.

Importantly, Justice David Souter’s opinion in Beam, which delivered the judgment of the Court, made a new point by emphasizing the importance of treating pending (Mode 3) and future (Mode 2) cases equally.94 His opinion held that drawing a line between the two modes would only encourage duplicative filing “when this or any other appellate court created the possibility of a new rule by taking a case for review.”95 Souter also pointed out that nothing in the decision “deprive[d] respondents of their opportunity to raise procedural bars to recovery under state law or demonstrate reliance interests entitled to consideration in determining the nature of the remedy that must be provided.”96 Thus, Souter’s opinion recognized the retroactivity-remedy distinction from the plurality opinion of American Trucking.

Harper is the most important case in the retroactivity jurisprudence, as it summarizes the previous cases and clarifies the current law.97 Harper was again a tax refund case filed after a new rule invalidated a state tax scheme that discriminated against federal employees.98 Justice Clarence Thomas delivered the opinion of the Court, holding that, based on Griffith and Beam,

[w]hen this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.99

The Court also held that “when [it] does not reserve the question whether its holding should be applied to the parties before it,” the presumption is to apply the holding retroactively to them.100 This rule “prevail[s] over any claim based on [ ] Chevron Oil,”101 and the Supremacy Clause makes federal retroactivity doctrine supersede any “contrary approach to retroactivity under state law . . . [in the] interpretation[ ] of federal law.”102 This decision clearly abolished selective prospectivity for federal law.103

Scalia endorsed the Court’s approach and observed that “[p]rospective decisionmaking is the handmaid of judicial activism, and the born enemy of stare decisis,”104 while four other justices preserved the possibility of pure prospectivity.105 As a result, even after Harper, it is not entirely clear whether a full retroactivity rule absolutely excludes the possibility of pure prospectivity.

Reynoldsville Casket, the most recent Supreme Court decision on civil retroactivity, explicitly limits the full retroactivity rule established in Harper.106 At issue was the retroactivity of a new rule invalidating a state tolling provision that discriminated against out-of-state defendants in tort suits.107 The Court applied Harper and held that the new rule barred the plaintiff’s case,108 in total contrast to the result in Chevron Oil. Importantly, the Court rejected a “remedial exception”109 to the retroactive application in this case because the question of remedy was not a ground for the state supreme court’s dismissal,110 and because the reliance was the Chevron Oil-type “simple reliance.”111 Nevertheless, the Court recognized potential remedial exceptions, in instances in which retroactive application of the new rule might not determine the outcome of the case:

[A] court may find (1) an alternative way of curing the constitutional violation, or (2) a previously existing, independent legal basis (having nothing to do with retroactivity) for denying relief, or (3) as in the law of qualified immunity, a well-established general legal rule that trumps the new rule of law, which general rule reflects both reliance interests and other significant policy justifications, or (4) a principle of law, such as that of “finality” present in the Teague context, that limits the principle of retroactivity itself.112

The Court acknowledged the existence of these remedial exceptions,113 but Scalia and Thomas concurred separately to reject any “remedial discretion” in the application of full retroactivity.114

Since Reynoldsville Casket, various state supreme courts have tried to interpret the Supreme Court’s new retroactivity jurisprudence. When interpreting the retroactivity of state laws, which is not controlled by Harper and Reynoldsville Casket, some state supreme courts have adopted the full retroactivity approach,115 while others remain loyal to the Chevron Oil test.116 When hearing federal constitutional cases, at least one state supreme court has followed the remedial exception rule articulated in Reynoldsville Casket.117

* * *

II. Placing Obergefell within the Supreme Court’s Retroactivity Jurisprudence

In sum, the Supreme Court’s jurisprudence mandates a full retroactivity rule when overruling precedents on constitutional grounds in both the civil and criminal contexts. The Court, however, has preserved the possibility of pure prospectivity, as well as a number of remedial exceptions to the retroactive effect of new constitutional rules. The next Part discusses how these rules apply to the Obergefell problem.

This Part applies the retroactivity rules to the Obergefell problem. It suggests that, as a general principle, Obergefell applies retroactively to all four modes of cases under Harper, but also acknowledges three theories for limiting the Harper rule in the Obergefell context.

A. An Obergefell Problem: Applying the Retroactivity Rules to the Four Modes

It is time to take a fresh look at the retroactivity jurisprudence in the context of same-sex marriage and property protection. What do Harper and Reynoldsville Casket mean for same-sex couples legally married in recognition states before Obergefell? In addition, what do these cases mean for third parties that transacted with one of the spouses before June 26, 2015, and might have relied on the old rule that they were not legally married? The answer is clear in some cases, but still muddy in others.

The answers are clear for Mode 1 and Mode 4 cases. First, if the underlying transaction happened after Obergefell, or if the couple asks for government welfare or tax benefits for the period after the decision has been rendered (Mode 1 cases), there is no doubt that Obergefell applies. Second, for all cases that have already reached finality (Mode 4 cases), there is no retroactive application of Obergefell. Harper’s rule is limited to “all cases still open on direct review.”118 For example, returning to the Amy and Margaret hypothetical from the Introduction, if, before Obergefell, Margaret challenges the transaction and loses after exhausting all levels of direct review, courts will not reopen her case post-Obergefell and give back her share of the house. Here, pure retroactivity would be out of the question.

Next are the pending (Mode 3) and future (Mode 2) cases. The underlying facts of these cases occurred before the new rule was issued, but they differ in whether the suit is filed before (Mode 3 cases) or after (Mode 2 cases) the new rule is announced.119 After Harper, selective prospectivity is no longer available, but pure prospectivity remains a possibility.120

To determine whether pure prospectivity is applicable here, it is important to determine whether the Court applied Obergefell to the parties in that case. In Obergefell, the Supreme Court held that same-sex couples have a “fundamental [constitutional] right to marry” and that each state must recognize same-sex marriages approved by other states.121 Importantly, the Court reversed the Sixth Circuit’s holding to the contrary and did not reserve the question whether its holding applied to the litigants before it.122 Under these circumstances, the normal presumption is that the new rule applies retroactively to all pending cases.123 Harper commands a full retroactive application to all cases pending and yet to be filed, “regardless of whether [the underlying] events predate or postdate [the Court’s] announcement of the rule.”124 Pure prospectivity is thus not an option under the Obergefell regime.

Does that mean that Mark (the buyer of Amy and Margaret’s home), Pat (David’s mother and the beneficiary of his estate’s wrongful death action), and all those similarly situated have no protection for their property interests? Specifically, is there any limit, constitutional or otherwise, to the general rule of full retroactivity? The next Section proposes three theories for limiting the retroactivity of Obergefell and protecting reliance interests.

B. Three Theories for Limiting the Retroactivity of Obergefell

It is worth emphasizing that the stakes are high and the disruptive effects great if there is no limitation to the full retroactivity rule. It would mean that (1) the otherwise-settled validity of numerous past transactions would be open to question (Mark’s case), (2) the otherwise-clear property distribution by the operation of law would become uncertain (Pat’s case), and (3) welfare and tax programs would expect extra burdens and costs that are not already allocated in government fiscal plans.

The issue of retroactivity requires a balancing of several policy considerations. Fairness requires, on the one hand, protecting good-faith reliance (counseling in favor of nonretroactivity) and, on the other, providing equal treatment of similarly situated individuals (suggesting the rejection of selective prospectivity).125 Stare decisis demands, on the one hand, retroactivity to increase the cost of judicial activism and, on the other, nonretroactivity to protect reliance on precedents.126 Finality and efficiency (administrative burden concerns) militate against opening closed cases, and thus suggest that pure retroactivity should be rejected.127 The conflicting nature of these considerations makes it impossible to have a straightforward retroactivity or nonretroactivity rule without exception, as demonstrated by Reynoldsville Casket’s careful carving out of specific remedial exceptions. The difficult question is how to strike the balance.

There are three theories for limiting the Harper rule in the Obergefell context. First, Reynoldsville Casket itself provides four categories for limiting the retroactive effect of a constitutional overruling (the “Remedial Exceptions Theory”). Second, viewed against the backdrop of the Supreme Court’s vacillating retroactivity jurisprudence, Obergefell can be distinguished from Harper and Reynoldsville Casket and analogized to Linkletter and the Warren Court’s nonretroactivity norm, because Obergefell created (or discovered)128 an implied fundamental right (the “Warren Court Theory”). Third, the constitutional protection of property rights also provides some limits to the general rule of full retroactivity when vested property rights and legitimate third-party reliance interests are at risk (the “Constitutional Limits Theory”).

The Warren Court Theory gives the strongest protection to third-party reliance because it argues that the Harper line of cases is not applicable at all to Obergefell’s implied-fundamental-rights context. The Constitutional Limits Theory recognizes the applicability of Harper to the Obergefell context in general, but would argue for refusing to apply the full retroactivity rule to Obergefell problems involving constitutionally protected property interests. The Remedial Exceptions Theory provides the weakest limit to the Harper rule, because it argues that there is no constitutional limit to full retroactivity and that the retroactive effects of Obergefell should be barred only in certain particularized situations.

This Comment argues that only the Remedial Exceptions Theory, which provides the narrowest protection for the reliance interests in property cases, is viable under current Supreme Court jurisprudence. Part III proposes a framework for limiting the retroactive effects of Obergefell in property cases based on the four nonconstitutional remedial exceptions in Reynoldsville Casket. It then rebuts the Warren Court Theory and the Constitutional Limits Theory.

The Comment concludes that Obergefell retroactively applies to all pending and future property cases, even if the relevant transaction took place before Obergefell, with three exceptions: (1) when government agencies refuse to give the requested benefits to all married couples, whether opposite-sex or same-sex, (2) when such application is barred by the operation of a preexisting, independent law that is itself constitutional and has nothing to do with retroactivity, and (3) when there is a disruption of important reliance interests coupled with significant policy justifications.

III. A Framework for Limiting the Retroactive Effects of Obergefell in Property Cases: Nonconstitutional Remedial Exceptions

The Remedial Exceptions Theory is based on the four exceptions in Reynoldsville Casket. These exceptions provide a framework to balance the interests protected by the full retroactivity rule and the reliance interests of numerous third parties, public and private. To reiterate, Reynoldsville Casket’s four explicit exceptions to the full retroactive effect of a new rule are as follows: (1) when the cure for unconstitutionality does not require retroactive application of the new rule; (2) when there is “a previously existing, independent legal basis” for denying retroactive effect that is not itself unconstitutional; (3) when there is a “well-established general legal rule that trumps the new rule of law, . . . reflect[ing] both reliance interests and other significant policy justifications”; or (4) when “a principle of law, such as that of ‘finality’ present in the Teague context, [ ] limits the principle of retroactivity itself.”129

This Part focuses on the difficult pending and future cases (Mode 2 and 3 cases, respectively). The fourth exception is concerned only with closed cases (Mode 4 cases), which are clearly barred from being reopened by the retroactive application of Obergefell. As such, the rest of Part III establishes a framework based on the first three exceptions under the Remedial Exceptions Theory, and then rejects the Warren Court Theory and the Constitutional Limits Theory.

A. Alternative Cures for Unconstitutionality

One remedial exception to the full retroactivity rule applies when there is an alternative way to remedy the unconstitutionality of the old rule. This exception might save government agencies from the unexpected extra fiscal burdens caused by the retroactive application of Obergefell. In Reynoldsville Casket, the plaintiff pointed out some “tax cases in which the Court applied retroactively new rules holding certain state tax laws unconstitutional, but nonetheless permitted the state courts a degree of leeway in designing a remedy,” including remedies that would deny refunds.130 The majority distinguished Reynoldsville Casket from the previous tax cases: the cited cases involved “a particular kind of constitutional violation” that “depends, in critical part, upon differential treatment of two similar classes of individuals.”131 Under such circumstances, the court “might cure the problem either by similarly burdening, or by similarly unburdening, both groups.”132 In Reynoldsville Casket, however, the Ohio Supreme Court’s remedy under review did not cure the constitutional problem by equalizing the treatment of in-state and out-of-state defendants and thus did not fall under this exception.133

In Swisher International, Inc v United States,134 the United States Court of International Trade135 used the flexibility of the remedy for unconstitutional tax statutes recognized in Reynoldsville Casket to find that “an unconstitutional tax is [not] an ipso facto taking.”136 The Court of International Trade reasoned that if it were, “the remedy would be limited to just compensation, and [the problem] could not . . . be cured by the levy of additional taxes.”137 This attests to the point that retroactive application of a new rule does not necessarily result in a single type of remedy.

The flexibility of the remedy even in the presence of retroactivity is not limited to tax cases. In Reynoldsville Casket, the Court extended the principle to the statute of limitations context. Suppose a state statute of limitations discriminates against out-of-state defendants by allowing a longer period for plaintiffs to bring a tort suit against them. The unequal treatment can be cured either by requiring the same longer period for both out-of-state and in-state defendants or by requiring the same shorter period for both groups.138

Applying the alternative-cures exception to the Obergefell scenarios, there is an argument for curing the unconstitutionality of same-sex marriage bans and nonrecognition without applying Obergefell retroactively. The alternative-cures exception is especially applicable to cases concerning property interests related to marital status (rather than the right to marry itself). It is true that the bulk of the Obergefell majority opinion relied on the implied fundamental rights of individuals under the Fourteenth Amendment’s Due Process Clause,139 but the opinion also rested on the Equal Protection Clause.140 Violating one does not necessarily violate the other. Imagine that a state recognizes the right of same-sex couples to marry, while also discriminating against same-sex married couples by refusing to grant them certain tax exemptions available to opposite-sex married couples. The state action does not violate the implied fundamental right to marry, but may very well be unconstitutional under the Equal Protection Clause.141

In cases in which property interests alone (and not the right to marry) are involved, the retroactive application of Obergefell does not necessarily mean that same-sex couples who are now in court or intend to file cases will obtain their desired remedy, namely, the benefits that opposite-sex couples currently enjoy. Applying the alternative-cures exception to the Obergefell context, one can argue that the unconstitutionality of any discriminatory statute or state action can be cured by equalizing the treatment given to same-sex couples and opposite-sex ones. For example, the IRS could decide that married couples, of the opposite or same sex, cannot get certain benefits anymore, even for the period that has already started, or Congress could pass a statute to the same effect.142 Given the Court’s permissive attitude toward legislative retroactivity over economic matters,143 rectification of rights will probably come through the democratic process and not through the judiciary. In other words, there is probably no constitutional or legal duty for welfare or benefits agencies to give full retroactive effect to Obergefell to the satisfaction of same-sex couples legally married in recognition states prior to Obergefell.

The cases of Mark and Pat may be different from welfare or benefits cases. The property interests of Mark and Pat rest directly on whether the same-sex couple in each case was married at the time of the relevant event (Mark’s purchase of Amy’s house or David’s death), that is, whether Obergefell is retroactively applied or not. There seems to be no cure other than acknowledging their marital status at the time of the relevant transaction. In other words, there is no alternative cure for unconstitutionality in situations that involve only private parties and no state actors.

The asymmetry here is worrisome. For one thing, nonexpert individuals may be less capable of anticipating judicial changes than government agencies are and may have fewer obligations to do so. It is thus more reasonable for private parties to rely on old rules. The analysis above, however, shows that it is possible for the government to avoid the retroactive effect of Obergefell, but the same is not true of private third parties. The result is ironic: the exception helps the types of parties who are best able to anticipate changes in law, and burdens those who are not.

It is also worrisome for another reason: if a government agency decides not to give certain benefits to same-sex married couples based on their past marital status, it must deny opposite-sex couples’ past benefits as well. Withdrawing previously given benefits may create great political pressure, making it a less likely outcome. In contrast, if the agency decides to give benefits in the future to all married couples, including those married before Obergefell, the previously married same-sex couples can still enjoy the benefits as a result of their now-recognized marital status. In other words, same-sex couples face very few realistic possibilities of harm whichever way the government agency tries to cure the unconstitutionality. By contrast, private third parties may be unfairly deprived of otherwise vested property interests simply because of reasonable reliance on the old rule of nonrecognition, and may have no remedy whatsoever, if Obergefell applies with retroactive effect.144

In sum, the alternative-cures remedial exception is available only to relieve government agencies’ fiscal burden when there is a prior violation of the Equal Protection Clause, and only at the cost of great political pressure. It cannot be used to protect private third parties who relied on the old nonrecognition rule. The asymmetry is troublesome because the reliance of private third parties is more reasonable than the reliance of government agencies and because, unlike the same-sex couples, the private third parties will inevitably be hurt.

B. Preexisting and Independent State Law Grounds

There is a second exception to the general rule of full retroactivity established in Reynoldsville Casket. If there is “a [constitutional,] previously existing, independent legal basis (having nothing to do with retroactivity) for denying relief,” that independent legal rule deprives the new rule of retroactive effect.145 For example, the DC Court of Appeals held that a new rule for Title VII equal pay cases established by the Supreme Court was effectively not retroactively applicable (that is, it was not outcome determinative) because the statute of limitations barred the claim.146

In a case concerning the retroactive effect of Windsor on Employee Retirement Income Security Act of 1974147 (ERISA) claims, the defendant-employer tried to avoid the retroactive application of Windsor.148 The employer argued that “a previously existing independent legal basis for denying relief” existed because the same-sex couple’s marriage was not legally valid in any jurisdiction at the time of the plaintiff’s wife’s death.149 The district court found that, although California did not recognize same-sex marriages at the time the couple married, the couple was legally married under California law as it existed at the time the case came before the court.150 The district court still found the marriage valid because, while it would have been impossible for them to acquire a marriage license, the couple had “complied with every other requirement imposed by California law.”151 The court simply noted that an inability to obtain a marriage license was a “curable defect” given the development of California law regarding same-sex marriage.152 In other words, the court left open the possibility that if the defect was not “curable” under a nonrecognition state law that was still constitutional at the time of the case, this could be “a previously existing, independent legal basis (having nothing to do with retroactivity) for denying relief.”153

The private third parties who have no remedies under the alternative-cures remedial exception might have an argument under the preexisting and independent law remedial exception. For example, Pat could argue that, at the time of her son’s death, he and Paul were not legally married under Alabama law and that the Alabama nonrecognition rule fits the independent state law exception. As a result, Obergefell cannot be effectively applied retroactively. Mark could advance a similar argument: at the time of the sale of the house, Amy and Margaret were not legally married under Texas law, and that operates as a preexisting, independent state law ground barring the retroactive effect of Obergefell. The problem for both Pat and Mark is that the independent state law itself has to be constitutional, and the nonrecognition rule is not—the plaintiff in Reynoldsville Casket was denied relief because her claim to an exception was based on a statute of limitations that was itself unconstitutional.154

In her brief, Pat emphasized the Alabama early vesting rule: “There exists a profound demonstration of precedent from Alabama courts illistrating [sic] the principle that the law in effect at the time of decedent’s death controls the distribution of his property in Alabama.”155 This rule, she argued, “serve[s] as ‘a previously existing, independent legal basis . . . for denying relief.’”156 Paul’s appellate brief emphasized instead the aspect of Alabama intestacy law (which governed distribution in the case) that defined David’s heirs as including both the surviving spouse and the mother, without further definition of either term.157 The retroactive application of Obergefell clarified only that David had a surviving spouse when he died, without disturbing the state intestacy rule effective at his death.158 According to Paul, then, the state intestacy rule did not operate as a previously existing, independent legal basis for denying relief.159 The briefs’ arguments seemed to suggest that the outcome of the case would eventually rest on the interpretation of the relevant Alabama state law, over which the Supreme Court of Alabama has the ultimate authority.160

There was a possibility, however, that even if Pat’s interpretation was correct, the Alabama early vesting rule would not have qualified under this exception. The early vesting rule essentially dictates a temporal choice of law and, therefore, is not a rule “having nothing to do with retroactivity.”161 In other words, even if the Eleventh Circuit had decided the case on retroactivity grounds, rather than on mootness grounds,162 Pat might still have lost. In terms of protecting reliance interests and reasonable expectations, this might not have been an entirely unfair result. After all, David’s death was a sudden and tragic accident, and Pat had little reliance interest in the proceeds of the wrongful death action.163

Arguably, Mark, the buyer of a same-sex couple’s homestead, would have a more significant reliance interest than Pat had. Yet it is unclear that the preexisting state legal ground exception would fare any better for him than for Pat. The Court hinted in Reynoldsville Casket that a qualified rule under this exception could be “a rule containing certain procedural requirements for any [similar] suit.”164 As illustrated above, a potential rule also has to be constitutional, and therefore cannot be the marriage nonrecognition rule. And it has to be independent, that is, “having nothing to do with retroactivity,”165 and therefore cannot be any rule that freezes parties’ property rights under state law at a particular moment. Apart from a statute of limitations, which is explicitly listed as a qualified rule under this exception in Reynoldsville Casket,166 it is difficult to imagine another rule that would be generally applicable to a typical property transaction like Mark’s.

In sum, although the preexisting legal ground exception looks promising at first as a means of protecting private parties’ varying degrees of reliance interests,167 its scope turns out to be extremely narrow. It only clearly embraces statutes of limitations and other generally applicable procedural barriers to bringing a suit. Besides, a qualified rule under this exception must be both constitutional and independent in the sense that it does not implicate retroactivity, therefore disqualifying any nonrecognition rule for same-sex marriages and any temporal choice-of-law rules in state law. Lastly, even when such a rule exists, the ultimate success of an argument relying on the rule will likely depend on the state supreme court’s interpretation of state law.

C. Well-Established General Legal Rules Reflecting Reliance Interests and Significant Policy Justifications

In an oft-quoted 168 paragraph from his concurring opinion in Reynoldsville Casket, Justice Anthony Kennedy noted that he and Justice O’Connor “[did] not read [Reynoldsville Casket] to surrender in advance [the] authority to decide that in some exceptional cases, courts may shape relief in light of disruption of important reliance interests or the unfairness caused by unexpected judicial decisions.”169 The Second Circuit,170 a dissenting opinion in the Ninth Circuit,171 the Supreme Court of Alabama,172 and the DC Court of Appeals173 have all suggested that Reynoldsville Casket leaves open this possibility.

On the other hand, Reynoldsville Casket itself emphasized that the Chevron Oil type of “simple reliance” is never enough.174 A later Supreme Court case additionally affirmed that only “grave disruption or inequity” can justify invoking the reliance exception.175 One example of a well-established general legal rule that qualifies under the reliance and policy justification exception is the qualified immunity rule.176 In civil suits against government officials, the qualified immunity rule bars the retroactive application of a new rule holding a type of police action unconstitutional when “the new rule of law was not clearly established at the time of the [action].”177 It does so to protect the police from civil liability for violating individuals’ constitutional rights. The qualified immunity rule is justified on two significant policy grounds. First, it is necessary “lest threat of liability dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.”178 Second, “it reflects the concern that society as a whole, without that immunity, would have to bear the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.”179

It is clear that the kind of reliance sufficient for qualified immunity is not the same kind of reliance sufficient for invoking the Reynoldsville Casket reliance exception. The reliance sufficient for qualified immunity is simpler than the Chevron Oil type, in the sense that proving the former is much easier than proving the latter: the former does not require more than a circuit split on a particular legal issue in a § 1983 action,180 while the latter involves reliance on a well-established rule.181 The example of qualified immunity instead indicates that in order to qualify for the Reynoldsville Casket exception, there must be some “significant policy justifications” beyond “reliance interests” (meaning the Chevron Oil type of “simple reliance”).182 Additionally, those justifications must affect the “society as a whole” in important aspects, such as by affecting the incentives to become responsible public officials.183

Apart from qualified immunity doctrine, the Supreme Court in Reynoldsville Casket did not give another example under this exception,184 leaving one to wonder what else qualifies as “a well-established general legal rule that . . . reflects both reliance interests and other significant policy justifications.”185 In a closely analogous area, retroactive zoning regulation, there is one such candidate, the vested rights doctrine.186 “In its most general form, the vested rights doctrine defines when, and under what circumstances, an incomplete project can count as an existing use.”187 The doctrine “assumes that if a right has vested . . . it is entitled to protection from the subsequently enacted land use regulations.”188 The majority rule in the states is a late vesting rule, whereby courts use a multifactor test to determine whether “the owner has made substantial expenditures in good faith reliance on the issuance of a building permit or other approval.”189 Some states use a minority “per se rule”190 that “the [development] right vests when the party . . . applies for [a] building permit, if that permit is thereafter issued.”191

Whichever vesting rule states have chosen in their common law, the same significant policy consideration underlies them: protecting reasonable expectations backed by some degree of quantifiable investment. Obviously, such a rule will protect the incentives for land and property development and transactions, which have a significant impact on the “society as a whole.”192 Even in an area such as zoning, in which balancing “the need for certainty [and] the need for change” is essential,193 “[t]here is . . . a strong background rule running throughout the law of property that existing uses are entitled to protection from the government.”194 In the context of pre-Obergefell property transactions, the policy argument is even stronger. After all, a title to land based on a covenant valid at the time of transaction is the archetypal vested right; there are simply no further application steps or “substantial expenditures” to engage in.195 Besides, the need for flexibility in land planning is nonexistent in the Obergefell context. The vested rights doctrine qualifies as “a well-established general legal rule that . . . reflects both reliance interests and other significant policy justifications.”196

Given the inapplicability of the former two remedial exceptions to the typical property transaction scenario, this final remedial exception seems to be Mark’s last hope for protecting his reliance interest.197 Granted, if Mark’s argument is only that he relied on the then-valid state law of nonrecognition when entering the purchase contract and, as a result, did not ask for consent from Margaret, he will not succeed. This is so even if he will be evicted from his home! Reasonable reliance on existing law plus grave individual suffering without resort to any remedy is exactly the kind of simple reliance Reynoldsville Casket rejected.

The vested rights doctrine, however, strongly supports protecting Mark’s vested title. Apart from the reasons illustrated above, the vested rights doctrine applies even more forcefully here than in the land use context because of two other strong policy arguments beyond simple reliance. These policy arguments further justify applying the reliance exception to good-faith third parties like Mark in private property transactions before Obergefell. For one thing, depriving Mark of his title may increase transaction costs in real estate deals, especially those involving same-sex couples. That is, interested buyers may need to research the gender and marital status of the past owners. Arguably, the bona fide real-estate purchaser rule in force in some states198 may accelerate the title-cleansing process, but there still may be more transaction costs. It is simply incorrect to argue that Obergefell settles the same-sex marriage issue once and for all and that future buyers will no longer have to exert more caution when dealing with same-sex couples living together.

Perhaps an even more significant policy concern in the long run is that transacting parties will constantly remain alert that the deal may be subject to voidance in the future by a new Supreme Court opinion. Disturbing past reliance interests in real property through retroactive application of a new rule will forever put society as a whole on alert. The creation or discovery of implied fundamental rights is still ongoing,199 and the risk of future forfeiture of acquired property is greater given the lack of constitutional protection against retroactive judicial lawmaking affecting property interests.200

In conclusion, the third parties in pre-Obergefell property transactions who relied on the old nonrecognition rule should not be subject to the retroactive effect of Obergefell. They are protected by the vested rights doctrine under the reliance and policy justification remedial exception.

D. The Unavailability of Greater Protection: Refuting Two Theories

The analysis above shows that while the Remedial Exceptions Theory succeeds in providing a framework for limiting the retroactive effects of Obergefell in each of the three types of property cases, the limitation provided is quite narrow. The implied-fundamental-rights nature of Obergefell and the perceived notion of property protection at a constitutional level may naturally lead one instead toward the Warren Court Theory and the Constitutional Limits Theory. These two theories both provide greater protection for reliance interests than the Remedial Exceptions Theory. The rest of this Section shows that neither is viable under current Supreme Court jurisprudence, making the Remedial Exceptions Theory the only option for limiting the retroactive effect of Obergefell in property cases.

1. Implied fundamental rights and the Warren Court Theory.

The development of the retroactivity doctrine from Linkletter to Reynoldsville Casket tempts one to hypothesize that, in eras of explicit judicial activism and progressive expansion of rights, judges may be more willing to acknowledge that they are actually making laws.201 During these periods, the technique of nonretroactivity is useful to protect reliance interests and to avoid administrative costs that may prove to be overwhelmingly burdensome. Once the dust settles, however, courts may revert to the tradition of retroactivity, which promotes fairness and consistency, especially in constitutional law. After all, if a previous violation is of a constitutional nature, it seems unfair and inconsistent to deny relief to some of those harmed by the violation, while vindicating others.

Obergefell can be distinguished from the Court’s retroactivity jurisprudence of the past five decades in one important respect: it is a case based primarily on implied fundamental rights of individuals under the Fourteenth Amendment’s Due Process Clause,202 while the previous civil cases concerned either statutes of limitations (Chevron Oil and Reynoldsville Casket) or tax refunds (American Trucking, Beam, and Harper).203 Marriage is a status to which a great variety of rights and obligations are attached,204 and the examples in the Introduction showcase several of the “myriad circumstances in which the question [of retroactivity] might arise.”205

As O’Connor observed in Beam, “the broader the potential reach of a new rule, the greater the potential disruption of settled expectations.”206 While retroactive application to tax refund and statute of limitations cases may have a defined scope of disruptive effects (generally limited to the parties in the cases), retroactive application of Obergefell may disturb justified expectations of countless third parties. Such a great disruption caused by announcing new individual rights is familiar—the Warren Court era of expansion of criminal procedural rights, with the ensuing anxiety over the possibility of numerous legal prison breaks, is quite similar.207 The Court in Linkletter resorted to nonretroactivity techniques to avoid such a significant disruption.

From the perspective of legal realism, it is not unfathomable that the justices today would repeat their predecessors’ choices. Liberal justices have an incentive to keep a low-key attitude toward the application of such a groundbreaking decision to avoid strengthening its divisive effect, while conservative justices desire to do damage control for a decision that they do not like.208 If one looks at the voting split in the previous retroactivity cases and the composition of the Court today, this possibility may seem even more plausible: at least three justices (Kennedy, Justice Stephen Breyer, and Justice Ruth Bader Ginsburg) would likely be in favor of some leeway in the full retroactivity rule, as shown in the majority opinion of Reynoldsville Casket.209 The situation is complicated in the wake of Justice Scalia’s death, but arguably with one or two more votes, the silent return of Linkletter and Chevron Oil may be possible, even if the return is limited to Obergefell and future cases that involve the announcement of an implied fundamental right.

The analogy to the Warren Court era, however, is ultimately not viable. First of all, in Loving v Virginia,210 a scenario very similar to the Obergefell problem, the new rule of allowing interracial marriage was applied retroactively to set aside convictions under miscegenation laws even on collateral attack.211 This is significant given that this case was decided in the Warren Court era and after Linkletter was newly minted—in other words, when the Court was embracing the possibility of nonretroactivity. As Justice Harlan argued in his Mackey v United States212 opinion, it is precisely because a new rule announces substantive due process rights that it should be given full retroactive effect to redress previous grave deprivations of fundamental constitutional rights.213

Second, analogizing the current situation to the Warren Court era blurs the line between criminal and civil cases and may in fact support retroactivity. Griffith reversed Linkletter because the policy considerations leaned toward individual liberty and away from governmental reliance interests.214 A similar respect for fundamental individual liberty should therefore favor retroactive application of Obergefell. Moreover, in many cases, the remedy that the same-sex spouse seeks (such as being listed on the deceased partner’s death certificate, like in Obergefell itself) can be fulfilled only by retroactive acknowledgement of the same-sex marriage. It is analogous to the criminal context, in which the only remedies the defendant or petitioner seeks are release from prison and retroactive nullification of the conviction.215

Finally, even from the perspective of legal realism, this situation is not entirely analogous to the Warren Court dynamic. The current Court is not looking forward to creating a series of fundamental rights in the same area,216 and thus the incentive either to remain low-key or to control damage may not be as strong as in the Warren Court era. The Warren Court Theory, which may provide the most limits to the retroactivity of Obergefell, is not viable.

2. The Constitutional Limits Theory: Constitutional limits to retroactive judicial deprivation of property interests.

Even if the Harper rule applies to implied-fundamental-rights cases in general, there may still be constitutional barriers to its application in cases that disturb established property rights. The Constitution, as interpreted by the Supreme Court, makes it almost impossible to strike down retroactive civil, economic legislation using rational basis review.217 It is not entirely clear whether the usual constitutional weapons to protect property interests, such as the Contract Clause,218 the Due Process Clause,219 and the Takings Clause,220 may operate to withhold adjudicative retroactivity in property cases. These provisions are perhaps not very effective.

First of all, the Contract Clause “received a near-fatal blow” in Home Building & Loan Association v Blaisdell,221 “a controversial decision which upheld a temporary moratorium on the foreclosure of mortgages.”222 One scholar described that case as having “the effect of virtually gutting the Contract Clause.”223 The Clause has not been revived since, against the background of “the triumph of New Deal constitutionalism and the emergence of the regulatory state,” which symbolized the Supreme Court’s retreat from being a rigid guardian of private property against government regulation.224 In any event, “[t]he Supreme Court has . . . consistently refus[ed] to [read the Clause to] constrain judicial decisions undermining contractual expectations.”225

The Takings Clause of the Fifth Amendment seems a bit more promising. In Stop the Beach Renourishment, Inc v Florida Department of Environmental Protection,226 Scalia, writing the plurality opinion, recognized the possibility of a judicial taking (that is, “a judicial decision that eliminates or substantially changes established property rights”227 ): “[T]he Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking.”228 Chief Justice John Roberts, Justice Thomas, and Justice Samuel Alito joined the part of the opinion recognizing a judicial taking.229 Justice Stevens took no part in the decision, and the other four justices would have held that it was not necessary to decide the viability of judicial takings in this case,230 with Kennedy, joined by Justice Sonia Sotomayor, strongly objecting to the possibility.231 The legal status of judicial takings is thus unclear. At least one academic, cited by Kennedy in his concurring opinion,232 observes that “courts [ ] view themselves as radically different from the other branches of government,” and that “the Supreme Court is unlikely to apply the takings protections eagerly to judicial changes in property law.”233

Even if judicial takings are possible, it is unclear what remedy can be rendered in the Obergefell context. In response to Kennedy’s view that the only remedy in a takings case, judicial or otherwise, is “just compensation,”234 Scalia replied that “[i]f [the Court] were to hold that the [lower court decision] had effected an uncompensated taking in the present case, . . . [the Court] would simply reverse the . . . judgment.”235 It seems unlikely that the Court would repeal either Obergefell or Harper to render a remedy for judicial takings, and it is unclear what judgment is left to be reversed.

The difficulty lies in an important distinction between the Obergefell-Harper regime and the judicial takings discussed in both Scalia’s plurality and Kennedy’s concurrence: neither Obergefell nor Harper is a direct change of property law, while the cases discussed in the Stop the Beach opinions are. Disturbing third-party property interests is a side effect, rather than a direct result, of the Obergefell-Harper regime.236

The distinction is vital. For instance, a prerequisite for applying the Takings Clause is that the complainant lawfully owns the property in the first place, which is also a prerequisite for the application of the Due Process Clause.237 In the Amy and Margaret scenario described in the Introduction, if the retroactivity rule applies (which is not itself a change in the property rule), the transaction is invalid under previously existing state property law, and Mark never lawfully owned the house in the first place—there is no taking, and, for that matter, no due process violation.

Kennedy suggested in Stop the Beach that the Due Process Clause is a sufficient safeguard against judicial change of property law greater than the “the type of incremental modification under state common law that does not violate due process.”238 He pointed out that “[t]he Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is ‘arbitrary or irrational’ under the Due Process Clause.”239 As illustrated above, however, the distinction between the Obergefell-Harper regime and the cases cited in Stop the Beach—and the difficulty that distinction creates—is equally applicable to the Due Process Clause argument.

Scalia pointed out that it is not clear whether, according to Kennedy, the procedural or the substantive facet of the Due Process Clause functions as a replacement for the Takings Clause.240 If it is substantive due process, after Lochner v New York,241 the Court has long held that “the ‘liberties’ protected by substantive due process do not include economic liberties.”242 The procedural due process case may be stronger, and may indeed be quite obvious. The difficulty here, however, is that the Court has never identified a due process limitation on adjudicative retroactivity, even when it could have in the Chevron Oil era of nonretroactivity.243 In fact, as one scholar points out, “[t]hose Justices who defended adjudicative nonretroactivity based on considerations of fairness, notice, and reliance never argued that these factors were of constitutional magnitude.”244

Besides, as discussed in Part III.D.1, the role of implied fundamental rights in Obergefell, a role which is of constitutional magnitude, actually supports a strong retroactivity rule. This, in turn, affects property interests. It is unclear that the procedural due process argument necessarily preempts the retroactivity rule in the Obergefell context, even if it does preempt the rule in other contexts in which a property interest would be deprived without prior notice.

It seems that the Constitution does not provide any clear limit to retroactive applications of Obergefell that might lead to property deprivation. In fact, according to several Supreme Court justices, a failure to apply the new rule retroactively contravenes the Constitution, specifically Article III.245 The Constitutional Limits Theory thus does not provide a satisfactory basis for limiting the retroactivity of Obergefell.

* * *

In sum, the only limitation to the retroactive effect of Obergefell is provided by the Remedial Exceptions Theory under certain particularized situations. It offers the most restricted legal protection of reliance and property interests of the three theories, and does not reach the level of constitutional protection. There is neither any viable constitutional limit to the retroactivity of Obergefell nor the possibility of a general revival of the Warren Court technique of nonretroactivity.

Conclusion

The release of the groundbreaking Obergefell decision calls for a reexamination of the Supreme Court’s long-dormant retroactivity jurisprudence. The creation or declaration of an implied fundamental right to marry may have significant disruptive effects on third parties’ reliance interests. This Comment concludes that Obergefell retroactively applies to all pending and future property cases even if the relevant transaction took place before Obergefell, except (1) when government agencies refuse to give the claimed benefits to both same-sex and opposite-sex married couples, (2) when such application is barred by the operation of a preexisting, independent state law that is itself constitutional and has nothing to do with retroactivity, or (3) when there is a disruption of important reliance interests coupled with significant policy justifications.

The first exception is available only to governments and inapplicable to situations involving private parties’ reliance. The second is extremely narrow and most likely includes only general procedural bars to bringing suit, such as statutes of limitations. The third is available to protect private parties who entered into pre-Obergefell property transactions with a same-sex spouse, in reliance on the nonrecognition rule. None of the protections, however, is of constitutional magnitude, and they afford only narrow restrictions to the general rule of retroactivity under current Supreme Court jurisprudence.

30See Frederic Bloom, The Law’s Clock, 104 Georgetown L J 1, 19–20 (2015) (“Judges are not ‘delegated to pronounce a new law,’ in Blackstone’s famous adage, ‘but [simply] to maintain and expound the old one.’”) (brackets in original); Alison L. LaCroix, Temporal Imperialism, 158 U Pa L Rev 1329, 1349–53 (2010) (“The [Blackstonian] theory forms one of the central justifications for adjudicative retroactivity: if the Court is declaring what the law is and has always been, then that declaration must have been the case at all earlier times, even if contemporary case law suggests otherwise.”).
31Norton v Shelby County, 118 US 425, 442 (1886). But see Paul Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U Pa L Rev 650, 650–53 (1962) (documenting the Supreme Court’s qualifications of the absolute rule of retroactivity from Norton).
32See LaCroix, 158 U Pa L Rev at 1349–53 (cited in note 30) (“The Austinian theory . . . posits . . . that when the Court changes its mind, the law changes with it.”) (quotation marks omitted).
33Id.
34For a summary of courts’ definitions of “pure retroactivity,” “full retroactivity,” “selective prospectivity,” and “pure prospectivity,” see Paul E. McGreal, A Tale of Two Courts: The Alaska Supreme Court, the United States Supreme Court, and Retroactivity, 9 Alaska L Rev 305, 307 (1992).
35When this Comment refers to “closing” a case or a case reaching “finality,” it refers to the end of the direct review proceedings. That is why it classifies habeas corpus proceedings under Mode 4, as habeas cases are collateral attacks that are usually not bound by issue preclusion and res judicata and are, in that sense, not “final.” As shown below, for the purpose of this Comment, the Supreme Court’s treatment of habeas cases and its treatment of cases reaching finality in the usual sense of the word are not in principle different—the governing rule of full retroactivity does not, in general, apply to either type of final cases. The same finality concern is present in both types of cases.
36See McGreal, 9 Alaska L Rev at 307 (cited in note 34).
37See id.
38See id. Under “selective prospectivity,” retroactivity may apply to “selected cases filed before” the New Rule Time, but it does not automatically apply. See id.
39See generally A. Kenneth Pye, The Warren Court and Criminal Procedure, 67 Mich L Rev 249 (1968). See also Mapp v Ohio, 367 US 643, 655–57 (1961) (establishing that the exclusionary rule of the Fourth Amendment applies to the states via the Fourteenth Amendment); Gideon v Wainwright, 372 US 335, 343–45 (1963) (establishing the right to free counsel for indigent defendants in state criminal prosecutions); Miranda v Arizona, 384 US 436, 444–45 (1966) (establishing that individuals must be informed of their rights before they are put under “custodial interrogation”).
40Earl M. Maltz, Some Thoughts on the Death of Stare Decisis in Constitutional Law, 1980 Wis L Rev 467, 467 (citation omitted). See also Harper, 509 US at 109 (Scalia concurring) (listing as examples six constitutional cases the Supreme Court overruled between 1961 and 1967).
41See Richard H. Fallon Jr and Daniel J. Meltzer, New Law, Non-retroactivity, and Constitutional Remedies, 104 Harv L Rev 1731, 1739–40, 1745 (1991).
42Harper, 509 US at 94 (quoting Justice Oliver Wendell Holmes’s words that “‘retrospective operation’ [ ] has governed ‘[j]udicial decisions . . . for near a thousand years’”) (brackets and ellipsis in original).
43Fallon and Meltzer, 104 Harv L Rev at 1739–40 (cited in note 41).
44381 US 618 (1965).
45Id at 619–20, 639–40.
46Id at 629 (quoting in addition Justice Benjamin Cardozo as stating that “[w]e think the federal constitution has no voice upon the subject”).
47See id at 627.
48Linkletter, 381 US at 627, citing Chicot County Drainage District v Baxter State Bank, 308 US 371, 374 (1940) (quotation marks omitted).
49Linkletter, 381 US at 636.
50See, for example, Herman Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U Chi L Rev 719, 747–50 (1966) (arguing that the newly announced rules were really not new and that the unconstitutional nature of the violation did not change based on when the defendant was convicted).
51Id at 747–48.
52Id. For a critique of the Court’s announcement of the judicial power to limit retroactivity, but not the result in Linkletter, see generally Paul J. Mishkin, The Supreme Court, 1964 Term—Foreword: The High Court, the Great Writ and the Due Process of Time and Law, 79 Harv L Rev 56 (1965).
53388 US 293 (1967).
54Id at 297, 300–01.
55Id at 300–01.
56See text accompanying note 38.
57See, for example, Desist v United States, 394 US 244, 258–59 (1969) (Harlan dissenting); Mackey v United States, 401 US 667, 676–81 (1971) (Harlan concurring in the judgment in part and dissenting in part).
58Mackey, 401 US at 679 (Harlan concurring in the judgment in part and dissenting in part).
59479 US 314 (1987).
60Id at 328.
61489 US 288 (1989).
62Id at 306–07, 309–10 (holding that “new constitutional rules of criminal procedure will not be applicable to [collateral attack] cases” unless (1) the new rule “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” or (2) “it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty”) (quotation marks omitted and ellipsis in original).
63See, for example, Danforth v Minnesota, 552 US 264, 266 (2008) (holding that Teague does not preclude state courts from giving “broader [retroactive] effect to new rules of criminal procedure than is required by [Teague]”); Montgomery v Louisiana, No 14-280, slip op at 8 (US Jan 25, 2016) (holding that the substantive rule exception of Teague “rest[s] upon constitutional premises” and is “binding on state courts”).
64404 US 97 (1971).
65Id at 98.
66Id at 98–99. The laches doctrine provides a flexible statute of limitations for admiralty cases, under which the length of the statute of limitations is based on equitable factors. See Uisdean R. Vass and Xia Chen, The Admiralty Doctrine of Laches, 53 La L Rev 495, 495 (1992).
67Rodrigue v Aetna Casualty & Surety Co, 395 US 352, 355 (1969).
68Chevron Oil, 404 US at 106–07.
69Id at 107–08.
70496 US 167 (1990).
71Id at 168, 179–86 (O’Connor) (plurality).
72Id at 171–74 (O’Connor) (plurality).
73Id at 182–83 (O’Connor) (plurality).
74American Trucking, 496 US at 182–83 (O’Connor) (plurality) (“[I]t is clear that the invalidation of the State’s [Highway Use Equalization] tax would have potentially disruptive consequences for the State and its citizens. A refund, if required by state or federal law, could deplete the state treasury, thus threatening the State’s current operations and future plans.”).
75Id at 212 (Stevens dissenting).
76Id at 212–16 (Stevens dissenting).
77Id at 221–24 (Stevens dissenting) (“[T]he problem of the appropriate scope of federal equitable remedies [at issue in Chevron Oil] is distinct from the choice-of-law issue [of retroactivity] implicated by this case.”) (emphasis and quotation marks omitted).
78American Trucking, 496 US at 209 (Stevens dissenting).
79Id at 209–12 (Stevens dissenting).
80See id at 212–18 (Stevens dissenting).
81Id at 201 (Scalia concurring in the judgment).
82American Trucking, 496 US at 205 (Scalia concurring in the judgment).
83Id at 197–99 (O’Connor) (plurality).
84Id (O’Connor) (plurality).
85501 US 529 (1991).
86See id at 531.
87Id at 532–34 (Souter, joined by Stevens).
88See id at 544 (Souter).
89Beam, 501 US at 540–44 (Souter); id at 545 (White concurring in the judgment); id at 548 (Blackmun concurring in the judgment, joined by Marshall and Scalia); id at 548 (Scalia concurring in the judgment, joined by Marshall and Blackmun). Scalia also rejected selective prospectivity because he believed it violated the Court’s Article III powers. See id at 548–49 (Scalia concurring in the judgment).
90Id at 548 (Blackmun concurring in the judgment) (“Like Justice Scalia, I conclude that prospectivity, whether ‘selective’ or ‘pure,’ breaches our obligation to discharge our constitutional function.”).
91Id at 545 (White concurring in the judgment) (“Nothing in the above, however, is meant to suggest that I retreat from . . . recognizing that in proper cases a new rule announced by the Court will not be applied retroactively, even to the parties before the Court.”).
92Id at 544 (Souter) (“The grounds for our decision today are narrow. . . . We do not speculate as to the bounds or propriety of pure prospectivity.”).
93See Beam, 501 US at 550 (O’Connor dissenting, joined by Rehnquist and Kennedy) (“If the Court decides, in the context of a civil case or controversy, to change the law, it must make the subsequent determination whether the new law or the old is to apply to conduct occurring before the law-changing decision.”).
94Id at 542–43 (Souter).
95Id (Souter).
96Id at 544 (Souter).
97See generally Harper, 509 US 86. See also Landgraf v USI Film Products, 511 US 244, 278 n 32 (1994) (“[Harper and Griffith] established a firm rule of retroactivity.”).
98Harper, 509 US at 89–91.
99Id at 89, 97.
100Id at 97–98 (quotation marks omitted).
101Id at 98 (brackets omitted).
102Harper, 509 US at 100.
103See id at 97–98. See also id at 115 (O’Connor dissenting, joined by Rehnquist) (using the phrase “selective prospectivity” to describe what the majority abolished).
104Id at 105 (Scalia concurring).
105See id at 110 (Kennedy concurring in part and concurring in the judgment, joined by White) (“I remain of the view that it is sometimes appropriate in the civil context to give only prospective application to a judicial decision. Prospective overruling allows courts to respect the principle of stare decisis even when they are impelled to change the law in light of new understanding.”) (quotation marks and brackets omitted). O’Connor in her dissent cited the American Trucking plurality to support different treatments in civil and criminal cases and Souter’s opinion in Beam to support a distinction between retroactivity and remedy. See id at 121, 131–32 (O’Connor dissenting). The combination of these propositions leaves open the possibility of at least prospective effect of a new constitutional rule.
106Reynoldsville Casket, 514 US at 758–59.
107Id at 750–51.
108Id at 759.
109Id at 754 (quotation marks omitted).
110Reynoldsville Casket, 514 US at 753.
111Id at 759.
112Id.
113Id at 758–59; id at 762 (Kennedy concurring in the judgment).
114See Reynoldsville Casket, 514 US at 759–61 (Scalia concurring).
115See, for example, MacCormack v Boston Edison Co, 672 NE2d 1, 5 (Mass 1996) (“A constitutional decision is not a legislative act but a determination of rights enacted by the Constitution, so that all persons with live claims are entitled to have those claims judged according to what we conclude the Constitution demands.”).
116See, for example, DiCenzo v A–Best Products Co, 897 NE2d 132, 140–43 (Ohio 2008) (applying the Chevron Oil test and holding that prospective application was required).
117See Quantum Resources Management, LLC v Pirate Lake Oil Corp, 112 S3d 209, 216–18 (La 2013) (holding that a constitutional state statute of limitations barred recovery from an unconstitutional tax sale, despite the fact that a new rule rendering such a sale unconstitutional applied retroactively to the case).
118Harper, 509 US at 97.
119Justice Souter’s opinion in Beam declined to draw a line between pending cases and cases yet to be filed, rendering the treatment of both types of cases the same in terms of retroactivity. See text accompanying notes 94–96.
120See notes 99–105 and accompanying text.
121Obergefell, 135 S Ct at 2604–05, 2607–08.
122See id at 2608.
123See Harper, 509 US at 97–98.
124Id at 97.
125See Pamela J. Stephens, The New Retroactivity Doctrine: Equality, Reliance and Stare Decisis, 48 Syracuse L Rev 1515, 1560–61 (1998).
126See id at 1565–67.
127See id at 1567–68.
128Whether “created” or “discovered” is the appropriate term depends on whether one is an Austinian or a Blackstonian.
129Reynoldsville Casket, 514 US at 759 (emphasis omitted).
130Id at 755, citing generally Harper, 509 US 86, and Beam, 501 US 529.
131Reynoldsville Casket, 514 US at 755.
132Id.
133See id at 756.
134178 F Supp 2d 1354 (Intl Trade 2001).
135The Court of International Trade is an Article III court that primarily hears cases on imports and federal transactions that impact international trade. The court’s decisions can be appealed to the Federal Circuit. See About the Court (United States Court of International Trade, Dec 4, 2015), archived at http://perma.cc/3CGE-5JEP.
136Swisher International, 178 F Supp 2d at 1363.
137Id.
138See Reynoldsville Casket, 514 US at 756.
139See Obergefell, 135 S Ct at 2604–05.
140Id at 2604 (“These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”).
141See Allegheny Pittsburgh Coal Co v County Commission of Webster County, West Virginia, 488 US 336, 345–46 (1989) (noting that the Equal Protection Clause “protects the individual from state action which selects him out for discriminatory treatment by subjecting him to taxes not imposed on others of the same class”).
142In this hypothetical, there are no exit options for opposite-sex couples if they are denied benefits just as same-sex couples; there is no de facto segregation in treatment because the deprivation of benefits would be uniform across the nation. This situation is distinguishable from Griffin v County School Board of Prince Edward County, 377 US 218 (1964). In Griffin, the Court held that it was unconstitutional under the Equal Protection Clause for one county in a state to close all public schools, depriving both white and black students of the opportunity to attend the schools. Id at 225. The Court acknowledged that, as a matter of state law, the county could close all public schools, but found that there was still a violation of the Equal Protection Clause. This was because the de facto private school segregation in the county would force children there to choose between segregated private school or no school at all, while children in other counties did not have to face such a choice. Id at 229–31.
143See Jeffrey Omar Usman, Constitutional Constraints on Retroactive Civil Legislation: The Hollow Promises of the Federal Constitution and Unrealized Potential of State Constitutions, 14 Nev L J 63, 66–78 (2013).
144For Justice O’Connor’s analogous reasoning in American Trucking, see text accompanying notes 83–84 (arguing for a rule of retroactivity only for criminal cases, because criminal convictions can be remedied only through retroactivity, while civil defendants can obtain some remedy even under a prospective rule).
145Reynoldsville Casket, 514 US at 756–57, 759.
146George Washington University v Violand, 932 A2d 1109, 1118–19 (DC 2007), citing Reynoldsville Casket, 514 US at 752, 758–59.
147Pub L No 93-406, 88 Stat 829, codified at 29 USC § 1001 et seq.
148Schuett v FedEx Corp, 119 F Supp 3d 1155, 1163–64 (ND Cal 2016).
149Id at 1164–65.
150Id at 1160–61, 1166.
151Id at 1161.
152Schuett, 119 F Supp 3d at 1161.
153Reynoldsville Casket, 514 US at 759.
154See id at 757 (“[T]he Ohio Supreme Court did not rest its holding upon a pre-existing, separate rule of state law. . . . Rather, the maintenance of [the] action critically depends upon the continued application of the Ohio statute’s ‘tolling’ principle—a principle that this Court has held unconstitutional.”).
155Fancher Brief at *24 (cited in note 19).
156Id at *27–28, citing Reynoldsville Casket, 514 US at 759.
157Brief of Appellee, Hard v Fancher, No 15-13836, *30, 33 (11th Cir filed Nov 5, 2015) (available on Westlaw at 2015 WL 6854333) (“Hard Brief”).
158Id at *30–32.
159Id at *33, citing Reynoldsville Casket, 514 US at 759.
160See Pacific Gas & Electric Co v Police Court of City of Sacramento, California, 251 US 22, 24–25 (1919) (“[This] is a question of purely state law which we may not review.”).
161Reynoldsville Casket, 514 US at 757.
162Hard, 2016 WL 1579015 at *3–4.
163See Hard Brief at *32–33 (cited in note 157).
164See Reynoldsville Casket, 514 US at 756 (emphasis added).
165Id at 757.
166Id at 756–57.
167Compare Mark’s case (a private transaction) with Pat’s (a property distribution resulting from the operation of state law).
168See, for example, Meir Katz, Note, Plainly Not “Error”: Adjudicative Retroactivity on Direct Review, 25 Cardozo L Rev 1979, 1993 n 79 (2004); Brooke J. Egan, Deffenbaugh-Williams v. Wal-Mart Stores, Inc.: Title VII Punitive Damages after the Retroactivity Doctrine, 74 Tulane L Rev 1557, 1559 (2000); Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium Approach, 110 Harv L Rev 1055, 1094 n 225 (1997).
169Reynoldsville Casket, 514 US at 761 (Kennedy concurring in the judgment).
170Margo v Weiss, 213 F3d 55, 60 n 2 (2d Cir 2000).
171United States v City of Tacoma, Washington, 332 F3d 574, 583 (9th Cir 2003) (Ferguson dissenting) (“In particular, I believe that the presence of the following factors prohibits full retroactive application . . . in this case: (1) the presence of a novel decision regarding the statute, such that the City of Tacoma can claim ‘justifiable reliance’ on its earlier interpretation of the statute . . . .”).
172South Central Bell Telephone Co v State, 789 S2d 147, 151 n 10 (Ala 2000).
173Davis v Moore, 772 A2d 204, 232 (DC 2001) (“Appellants are correct that the Supreme Court has left the door open to the possibility that it might declare a new rule of law to be purely prospective in effect even if it is not required by the Constitution to do so.”).
174Reynoldsville Casket, 514 US at 759.
175Ryder v United States, 515 US 177, 184–85 (1995).
176Reynoldsville Casket, 514 US at 757–58. For a general discussion of qualified immunity in the context of gun control and § 1983 claims against municipalities and state officials, see Lewis M. Wasserman, Gun Control on College and University Campuses in the Wake of District of Columbia v. Heller and McDonald v. City of Chicago, 19 Va J Soc Pol & L 1, 48–55 (2011).
177Reynoldsville Casket, 514 US at 757 (quotation marks omitted).
178Id at 757–58 (quotation marks omitted and brackets in original).
179Id at 758 (quotation marks omitted and emphasis added). See also South Central Bell Telephone, 789 S2d at 151 (noting Reynoldsville Casket’s requirement of “‘significant policy justifications’ . . . where burdens would fall on ‘society as a whole’ if the rule were otherwise”).
180Wilson v Layne, 526 US 603, 618 (1999) (“If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.”).
181In Chevron Oil, the plaintiff relied on the well-established admiralty laches doctrine, and did not invoke any significant policy justification beyond that. See note 66 and accompanying text. This is the kind of “simple reliance” to which Reynoldsville Casket referred.
182Reynoldsville Casket, 514 US at 759.
183Id at 758.
184See id at 757–58.
185Id at 759 (emphasis omitted).
186For a comparison of the vested rights doctrine and the estoppel doctrine in zoning, see Simon J. Elkharrat, Note, But It Wasn’t My Fault! The Scope of the Zoning Estoppel Doctrine, 34 Cardozo L Rev 1999, 2004–16 (2013).
187Christopher Serkin, Existing Uses and the Limits of Land Use Regulations, 84 NYU L Rev 1222, 1238 (2009).
188Id.
189Robert C. Ellickson, et al, Land Use Controls: Cases and Materials 216 (Aspen 4th ed 2013) (citations omitted).
190Id at 216–17.
191Hull v Hunt, 331 P2d 856, 859 (Wash 1958) (en banc).
192Reynoldsville Casket, 514 US at 758. See also, for example, Gershon Feder and David Feeny, Land Tenure and Property Rights: Theory and Implications for Development Policy, 5 World Bank Econ Rev 135, 135–36 (1991) (arguing that “land rights systems [have great impact] on incentives, uncertainty, and the operation of credit markets” and “property rights in land affect resource allocation in agriculture in developing countries”).
193Ellickson, et al, Land Use Controls at 216 (cited in note 189).
194Serkin, 84 NYU L Rev at 1224 (cited in note 187) (observing that there is such a rule in current law, but arguing that there is no constitutional support for the rule and that existing uses in the land regulation context are overprotected). For an argument supporting the position that there is no constitutional protection for existing property rights in the context of retroactive application of Obergefell, see Part III.D.2.
195Ellickson, et al, Land Use Controls at 216 (cited in note 189).
196Reynoldsville Casket, 514 US at 759 (emphasis omitted).
197The reliance and policy justification exception seems inapplicable to Pat’s case, because she had barely any reliance interest. See text accompanying note 163. But it is possible that in other intestacy cases, in which property distributions result from the automatic operation of well-established state laws, there are sufficient reliance interests and significant policy justifications to qualify under this exception.
198See, for example, 765 ILCS 5/30:

All deeds, mortgages and other instruments of writing which are authorized to be recorded, shall take effect and be in force from and after the time of filing the same for record, and not before, as to all creditors and subsequent purchasers, without notice; and all such deeds and title papers shall be adjudged void as to all such creditors and subsequent purchasers, without notice, until the same shall be filed for record.
199For examples of two opposite views of the possible future development of “fundamental rights” in marriage, compare William Baude, Is Polygamy Next? (NY Times, July 21, 2015), online at http://www.nytimes.com/2015/07/21/opinion/is-polygamy-next.html (visited Jan 15, 2016) (Perma archive unavailable) (arguing that the logic of Obergefell suggests that there may be a fundamental right to polygamy, just like same-sex marriage), with Michael Cobb, The Supreme Court’s Lonely Hearts Club (NY Times, June 30, 2015), online at http://www.nytimes.com/2015/06/30/opinion/the-supreme-courts-lonely-hearts-club.html (visited May 2, 2016) (Perma archive unavailable) (questioning why single people’s “dignity” does not justify their enjoyment of the same benefits—in health care, taxes, and estate planning—that married people enjoy).
200For further discussion of this point, see Part III.D.2.
201See, for example, Obergefell, 135 S Ct at 2595–98 (documenting the changing definition of marriage in society and arguing that the law should keep up with social and cultural change).
202See id at 2604–05.
203See Part I.C.
204See, for example, Windsor, 133 S Ct at 2683 (observing that the marriage definition in DOMA “control[led] over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law”).
205Reynoldsville Casket, 514 US at 761 (Kennedy concurring in the judgment).
206Beam, 501 US at 552 (O’Connor dissenting).
207See Part I.B.
208See text accompanying note 41.
209See text accompanying notes 106–12.
210388 US 1 (1967). This Comment’s discussion of Loving is limited to the context of retroactivity of newly created implied fundamental rights in general. It does not touch on Loving’s reliance interest scenario, which is closely analogous to the Obergefell problem discussed in this Comment, for lack of relevant documented case law.
211See Loving, 388 US at 12 (vacating the Lovings’ convictions); Mackey v United States, 401 US 667, 692 & n 7 (1971) (Harlan concurring in the judgment in part and dissenting in part).
212401 US 667 (1971).
213See id at 692 (Harlan concurring in the judgment in part and dissenting in part) (“New ‘substantive due process’ rules, that is, those that place, as a matter of constitutional interpretation, certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, must, in my view, be placed on a different footing.”) (citation omitted).
214See text accompanying notes 83–84.
215See text accompanying notes 83–84.
216Arguably, the next step might be the right to marry, for example, between first cousins or among more than two people. See, for example, Baude, Is Polygamy Next? (cited in note 199). But it is certainly different from the Warren Court’s expansion of a series of rights that were of parallel importance and controversy. The barrier to expansion here is obviously much higher: gay marriage is perceived as considerably more different from polygamy than the right to free counsel is relative to the right to be informed of rights before custodial interrogation.
217See generally Usman, 14 Nev L J at 63 (cited in note 143) (examining and rejecting the federal constitutional clauses as a possible restriction on retroactive civil legislation and proposing restrictions based on state constitutions).
218US Const Art I, § 10, cl 1.
219US Const Amend V; US Const Amend XIV, § 1.
220US Const Amend V.
221290 US 398 (1934).
222James W. Ely Jr, The Protection of Contractual Rights: A Tale of Two Constitutional Provisions, 1 NYU J L & Liberty 370, 381 (2005).
223Id at 382.
224Id.
225Barton H. Thompson Jr, The History of the Judicial Impairment “Doctrine” and Its Lessons for the Contract Clause, 44 Stan L Rev 1373, 1375 (1992) (emphasis added).
226560 US 702 (2010).
227Id at 737 (Kennedy concurring in part and concurring in the judgment).
228Id at 715 (Scalia) (plurality).
229Id at 707 (Scalia) (plurality).
230Stop the Beach, 560 US at 742 (Breyer concurring in part and concurring in the judgment) (“[T]he plurality unnecessarily addresses questions of constitutional law that are better left for another day.”).
231Id at 733–34 (Kennedy concurring in part and concurring in the judgment).
232Id at 740 (Kennedy concurring in part and concurring in the judgment), citing Barton H. Thompson Jr, Judicial Takings, 76 Va L Rev 1449, 1515 (1990).
233Thompson, 76 Va L Rev at 1541–42 (cited in note 232).
234Stop the Beach, 560 US at 740–41 (Kennedy concurring in part and concurring in the judgment).
235Id at 723 (Scalia) (plurality).
236Stop the Beach itself involved a state supreme court’s decision to recharacterize certain littoral rights. See id at 712. Kennedy also highlighted the importance of “incremental modification under state [property] law”:

Consider the instance of litigation between two property owners to determine which one bears the liability and costs when a tree that stands on one property extends its roots in a way that damages adjacent property. If a court deems that, in light of increasing urbanization, the former rule for allocation of these costs should be changed, thus shifting the rights of the owners, it may well increase the value of one property and decrease the value of the other.

Id at 738 (Kennedy concurring in part and concurring in the judgment) (citation omitted).
237See Thomas W. Merrill, The Landscape of Constitutional Property, 86 Va L Rev 885, 886–87 (2000) (“Starting in 1972 with its landmark decision in Board of Regents v. Roth, [ ] the Court has become increasingly insistent that persons seeking protection for economic interests under either the Due Process or Takings Clauses must establish they have ‘property’ if they are to avoid dismissal of their lawsuit.”) (citation omitted).
238Stop the Beach, 560 US at 738 (Kennedy concurring in part and concurring in the judgment).
239Id at 737 (Kennedy concurring in part and concurring in the judgment).
240Id at 719 (Scalia) (plurality).
241198 US 45 (1905).
242Stop the Beach, 560 US at 721 (Scalia) (plurality).
243Fisch, 110 Harv L Rev at 1075 (cited in note 168) (“Even when the experiment with prospective adjudication under the Chevron Oil test presented the opportunity for the Justices to use due process arguments in support of nonretroactivity, none did so.”).
244Id.
245See, for example, text accompanying notes 81–82 (discussing Scalia’s opinion in American Trucking).

Comment

Children and Families Civil Rights Gender Studies Property Law

83.3