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Topic: Law. Religion and Same Sex Marriage (U.S) 

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Citations:

Bluebook 21st ed.

Andrea Battiston, The Legal History of Same-Sex Marriage in Canada, 39 CAN. L. LIBR.
REV. 8 (2014).

ALWD 6th ed.
Battiston, A. ., The legal history of same-sex marriage in canada, 39(1) Can. L.
Libr. Rev. 8 (2014).

APA 7th ed.
Battiston, A. (2014). The legal history of same-sex marriage in canada. Canadian Law
Library Review, 39(1), 8-12.

Chicago 7th ed.
Andrea Battiston, “The Legal History of Same-Sex Marriage in Canada,” Canadian Law
Library Review 39, no. 1 (2014): 8-12

McGill Guide 9th ed.
Andrea Battiston, “The Legal History of Same-Sex Marriage in Canada” (2014) 39:1 Can
L Libr Rev 8.

AGLC 4th ed.
Andrea Battiston, ‘The Legal History of Same-Sex Marriage in Canada’ (2014) 39(1)
Canadian Law Library Review 8.

MLA 8th ed.
Battiston, Andrea. “The Legal History of Same-Sex Marriage in Canada.” Canadian Law
Library Review, vol. 39, no. 1, 2014, p. 8-12. HeinOnline.

OSCOLA 4th ed.
Andrea Battiston, ‘The Legal History of Same-Sex Marriage in Canada’ (2014) 39 Can L
Libr Rev 8

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The Legal History of Same-Sex Marriage in
Canada *

By Andrea Battiston**

Abstract
This annotated bibliography traces the struggle for
legalization of same-sex marriage in Canada, highlighting
key cases and legislation from across Canada as well as
selected foreign influences.

Cette bibliographie annotee fournit un portrait des etapes
ayant mene a la legalisation du mariage de mime sexe au
Canada, en soulignant les decisions cles et la legislation
pertinente a travers le Canada et en mettant en evidence
certaines influences juridiques etrangeres sur ce debat.

Introduction

On July 20, 2005, Canada became only the fourth
country in the world to legalize same-sex marriage nationally
(following the Netherlands, Belgium, and Spain).’ By this
point, same-sex marriages were already being performed
across the country, with the exception of Alberta, Prince
Edward Island, and the Yukon, as a result of a series of court
challenges. The first same-sex marriages occurred on June
10, 2003, following an Ontario Court of Appeal decision that
declared such marriages legal, effective immediately.2

The lengthy legal history of same-sex marriage
in Canada begins in 1974, when Richard North and Chris
Vogel were refused a marriage license and subsequently
took Manitoba’s Vital Statistics Agency to court.3 Over the
following decades, the ongoing debate produced a great
deal of legislation and jurisprudence, the most significant of
which are highlighted below.

The Early Stages

Jurisprudence

North v Manitoba (Recorder of Vital Statistics) (1974), 52
DLR (3d) 280, 20 RFL 112 (Man Co Ct).

In 1974, with the Canadian Charter of Rights and
Freedoms4 still almost a decade in the future, Richard North
and Chris Vogel applied for a marriage license, pointing
out that no law specified that marriages must be between
individuals of the opposite sex. They were denied, and took

the Vital Statistics Agency to court. This judgment upheld
the denial of their right to marry, relying on dictionary
definitions and an English case from 1866, Hyde v Hyde
and Woodmansee,5 to support the limitation of marriage to
opposite-sex couples.

Layland v Ontario (Minister of Consumer & Commercial
Relations) (1993), 14 OR (3d) 658, 104 DLR (4th) 214 (Gen
Div).

In 1992, after the Charter and its equality provisions
were enshrined in the constitution, Todd Layland and
Pierre Beaulne claimed the right to marry. This judgment of
the Ontario Divisional Court, released in 1993, found that
marriage was limited to individuals of the opposite sex, and
that such a limitation is not discriminatory under section 15
of the Charter:

One of the principal purposes of the institution
of marriage is the founding and maintaining of
families in which children will be produced and
cared for, a procedure which is necessary for the
continuance of the species. … That principal purpose
of marriage cannot, as a general rule, be achieved
in a homosexual union because of the biological
limitations of such a union. It is this reality that is
recognized in the limitation of marriage to persons of
opposite sex. 6

The couple did not choose to appeal this ruling, but
groups such as EGALE (Equality for Gays and Lesbians
Everywhere) were determined to continue challenging the
marriage restriction in court. 7

Egan v Canada, [1995] 2 SCR 513, 124 DLR (4th) 609.

James Egan and John Norris Nesbit, who had been
living together for over 40 years, had applied for Nesbit to
receive a spousal allowance under the provisions of Egan’s
old age pension. Their claim was rejected because the
couple did not meet the definition of “spouses” because
they were of the same sex. They began an action claiming
that the definition contravened section 15(1) of the Charter,
which they subsequently took all the way to the Supreme
Court of Canada.

*cAndrea Battiston 2013.
* Andrea Battiston is a recent graduate of the University ofToronto’s Faculty of Information. Working with Susan Barker on a research guides project for the Bora Laskin Law Library confirmed her strong

interest in law librarianship.
1 Sylvain Larocque, Gay Marriage: The Story of a Canadian Social Revolution, translated by Robert Chodos, Louisa Blair & Benjamin Waterhouse (Toronto: James Lorimer & Company Ltd, 2006) at 269.
2 Ibid at 119.
3 /bid at 15.
4 Canadian Charterof Rights and Freedoms, Part lof the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
5 [1866] LR 1 P & D 130.
6 Layland vOntario (Minister of Consumer& Commercial Relations) (1993), 14 OR (3d) 658,104 DLR (4th) 214 (Gen Div) at paral7-18.
7 Larocque, supra note 1 at 21.

2014 Canadian Law Library Review/Revue canadienne des biliothbques de droit, Volume/Tome 39, No. 18

In this judgment, the Supreme Court upheld the
decision and declared the definition of “spouse” constitutional,
claiming that it was justified by the fact that “marriage is by
nature heterosexual” because opposite-couples are able to
produce children.” However, this judgment also recognized
that “[s]exual orientation is a deeply personal characteristic”
that “falls within the ambit of section 15 protection,” 9 thereby
establishing sexual orientation as a protected ground under
the Charter’s equality provisions.

Rosenberg v Canada (Attorney General) (1998), 38 OR (3d)
577, 98 DTC 6286 (CA).

This judgment by the Ontario Court of Appeal,
in response to a claim involving private pension survivor
benefits for individuals in same-sex relationships, struck
down the definition of “spouse” in the Income Tax Act. The
court found that the Act’s exclusion of same-sex couples
violated section 15 of the Charter in a way that was not
justified by section 1. This and other related decisions led
Parliament to introduce the Modernization of Benefits and
Obligations Act 0 to avoid the expense and contentious
debate of future court challenges.”1

M vH, [1999] 2 SCR 3,171 DLR (4th) 577.

This case involved two women, M and H, who lived
together as a couple for ten years but had since separated.
M sued for alimony under the provisions of Ontario’s Family
Law Act, which required her to contest the law’s opposite-
sex definition of the word “spouse.” The case eventually
reached the Supreme Court of Canada.

The Supreme Court found the definition to be
unconstitutional and gave the Ontario government six
months to amend the relevant act. The court made clear its
interpretation that protection from discrimination on
the basis of sexual orientation meant protecting same-sex
relationships as well:

The exclusion of same-sex partners … promotes
the view that M., and individuals in same-sex
relationships generally, are less worthy of recognition
and protection. It implies that they are judged to
be incapable of forming intimate relationships
of economic interdependence as compared to
opposite-sex couples, without regard to their actual
circumstances. … [S]uch exclusion perpetuates the
disadvantages suffered by individuals in same-sex
relationships and contributes to the erasure of their
existence. 12

The lawyers involved in the case hoped that same-
sex couples showing a willingness to accept legal obligations
would lead to rights in due course.13

Legislation

Modernization of Benefits and Obligations Act, SC 2000, c
12.

In response to court judgments such as Rosenberg
and M v H, the government brought in this act to extend
federal spousal benefits and obligations to all common-
law couples, whether of the same or opposite sex. The Act
amended 68 existing federal statutes, from the Agricultural
Marketing Programs Act to the War Veterans Allowance Act,
and included the Criminal Code, the Income Tax Act, and
the Pension Act. To appease its opponents, the government
included section 1.1, an interpretation provision stating, “For
greater certainty, the amendments made by this Act do not
affect the meaning of the word ‘marriage’, that is, the lawful
union of one man and one woman to the exclusion of all
others.”

Litigation in the Provinces

Jurisprudence

EGALE Canada Inc v Canada (Attorney General), 2001
BCSC 1365, [2001] 11 WWR 685.

In this case, EGALE and a group of same-sex
couples petitioned the Attorney General of British Columbia
for a declaration either that same-sex marriages were not
prohibited by statute or common law or that the prohibition
violated their Charter rights. The Attorney General referred
the question to the Supreme Court of British Columbia.

The resulting judgment found that same-sex
marriages were prohibited in Canadian law, but that this
prohibition was discriminatory: “There is now sufficient
practical similarity between the economic and social
consequences of opposite-sex and same-sex relationships
that affording one but not the other the opportunity to acquire
a legal and formal status discriminates in the substantive
sense of the word.” 14 However, the judgment continued, such
discrimination was justifiable under section 1 of the Charter:
“Because of the importance of marriage in the Canadian
context, past and present, the salutary effect associated
with the preservation of its opposite-sex core far outweighs
the deleterious effect resulting from the refusal to provide
legal status to same-sex relationships under the rubric of
marriage.”15

EGALE Canada Inc v Canada (Attorney General), 2003
BCCA 251, [2003] 7 WWR 22.

In this judgment, the British Columbia Court of
Appeal overturned the lower court’s decision. The court
agreed that limiting marriage to opposite-sex couples is

8 Egan v Canada, [1995] 2 SCR 513, 124 DLR (4th) 609 at 22.
9 lbid at para5. SC 2000, c 12.
10 Larocque, supra note 1 at 29.
11 M vH, [1999] 2
12 SCR 3, 171 DLR (4th) 577 at para73.
13 Larocque, supra note 1 at 22.
14 2001 BCSC 1365 at paral 78, [2001] 11 WWR 685.
15 lbidat para 214.

2014 Canadian Law Library Review/Revue canadienne des biliothbques de droit, Volume/Tome 39, No. 1 9

discriminatory and rejected the idea that this discrimination
could be justified:

Civil marriage should adapt to contemporary notions
of marriage as an institution in a society which
recognizes the rights of homosexual persons to
non-discriminatory treatment. … I do not think that
the judgment under appeal can be supported on the
ground that marriage … is so essentially heterosexual
as to be constitutionally incapable of extension to
same-sex couples and in that respect immune from
Charter scrutiny.16

In order to give the federal and provincial governments
time to bring legislation into accord with the decision, the
court suspended the application of the judgment until July
12, 2004, at which point same-sex couples would be able to
marry in British Columbia.

EGALE Canada Inc v Canada (Attorney General), 2003
BCCA 406, 228 DLR (4th) 416.

In this judgment released on July 8, 2003, and
following the Ontario Court of Appeal’s decision in Halpern
v Canada (Attorney General),17 the British Columbia Court
of Appeal lifted the suspension of the application from its
judgment from two months earlier, above. This meant that
same-sex couples could marry in British Columbia, effective
immediately.

Halpern v Canada (Attorney General) (2002), 60 OR (3d)
321, 215 DLR (4th) 223 (Sup Ct).

In this decision regarding the right of eight same-
sex couples to marry, the Ontario Divisional Court refuted
the key argument made by the other side of the case; that
procreation was limited to opposite-sex couples and was
essential to marriage:

There is much more to marriage as a societal
institution, in my view, than the act of heterosexual
intercourse leading to the birth of children. … If
heterosexual procreation is not essential to the
nature of the institution, then the same-sex couples’
sexual orientation is the only distinction differentiating
heterosexual couples from homosexual couples in
terms of access to the institution of marriage. … [T]
his differentiation is discriminatory of the same-sex
couples’ equality rights … and cannot stand.’

In the court’s view, the discrimination could not be
justified; for example, there was no reason to believe that
opening marriage to same-sex couples would be damaging
to heterosexual marriages. The existing definition of marriage

was declared invalid, and the government was given two
years to amend the law. In the event that it did not do so,
same-sex couples would be able to marry as of July 12,
2004.

Halpern v Canada (Attorney General) (2003), 65 OR (3d)
161, 225 DLR (4th) 529 (CA).

The federal government appealed the Ontario
Divisional Court’s decision in Halpern v Canada (Attorney
General) to the Ontario Court of Appeal, which upheld
the decision that denying marriage to same-sex couples
was discriminatory. The appellate court also went further,
declaring that same-sex couples were eligible to marry
effective immediately:

There is no evidence before this court that a
declaration of invalidity without a period of suspension
will pose any harm to the public, threaten the rule of
law, or deny anyone the benefit of legal recognition
of their marriage. … In our view, an immediate
declaration will simply ensure that opposite-sex
couples and same-sex couples immediately receive
equal treatment in law.19

The Toronto City Clerk was ordered to deliver
marriage licenses to the applicant couples. Twenty-one
same-sex couples were married that very day.20

Hendricks c Qu6bec (Procureur g6n6ral), [2002] RJQ 2506,
[2002] RDF 1022 (CS). 2 1

In this judgment, the Quebec Superior Court
responded to Michael Hendricks and Rene Leboeuf’s
petition requesting the right to marry. The court declared
that excluding same-sex couples from marriage was
discriminatory, and that civil unions (available under
Quebec’s An Act instituting civil unions and establishing new
rules of filiation)22 were not an acceptable substitute because
they “only serve to perpetuate [same-sex couples’] special
status.” 23 The court also rejected the idea that procreation
is the sole reason for marriage and pointed out that the
historic involvement of religion in marriage did not mean that
religious groups should continue to define it: “The state must
ensure respect for each citizen, but no group has the right
to impose its values on others or define a civil institution.” 24

The application of the ruling was suspended for two years,
to allow legislators to revise the law.

Catholic Civil Rights League v Hendricks, [2004] RJQ 851,
238 DLR (4th) 577 (CA).

16 EGALE Canada Inc, 2003 BCCA 251 at paras 178-179, [2003] 7 WWR 22.
17 (2003), 65 OR (3d) 161, 225 DLR (4th) 529 (CA).
18 Halpern v Canada (Attorney General) (2002), 60 OR (3d) 321, 215 DLR (4th) 223 (Sup Ct) at paras70, 81.
19 Halpern, supra note 17 at 153.
20 Larocque, supra note 1 at 127.
21 This decision was not reported in English. However, it is discussed and quoted from in English in Larocque, supra note 1 at 87-89.
22 SO 2002, c 6.
23 Hendricks c Quebec (Procureurg6neral), [2002] RJO 2506, [2002] RDF 1022 (CS) at paral 41, as translated in Laroque, supra note 1 at 87-89.
24 Hendricks, ibid at paral 64, as translated in Laroque, ibid at 87-89.

2014 Canadian Law Library Review/Revue canadienne des biliothbques de droit, Volume/Tome 39, No. 110

The Attorney General of Quebec declined to appeal
the decision in Hendricks c Qu6bec (Procureur g6n6ral).
However, the Catholic Civil Rights League (CCRL), which
had been an intervener in the preceding case, did choose
to appeal. In this judgment, the Quebec Court of Appeal
rejected the CCRL’s interest in the case and declared the
earlier judgment to be effective immediately, meaning that
same-sex couples in Quebec were now free to marry.

Federal Involvement

Jurisprudence

Re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698.

On June 16, 2003, the federal government asked the
Supreme Court of Canada to answer three questions about
its proposed same-sex marriage legislation. On January
26 of the following year, the government added a fourth
question. The Supreme Court held hearings in October 2004
and released its reference on December 9, 2004.

The first question was whether the proposed
legislation was in keeping with the federal government’s
legislative authority, and the court answered that it was. 25
The second question asked, “[I]s section 1 of the proposal,
which extends capacity to marry to persons of the same
sex, consistent with the Canadian Charter of Rights and
Freedoms?” 26 The court answered in the affirmative, saying
that the legislation “points unequivocally to a purpose which,
far from violating the Charter, flows from it.”27 The court also
specifically mentioned that “[c]ivil unions are a relationship
short of marriage,” 28 although it had not been asked to
comment on this point. The third question asked whether
the freedom of religion provisions found in the Charterwould
protect religious officials from being forced to perform same-
sex marriages if such marriages violated their beliefs, and
the court responded that they would do So. 29 The court had
also been asked a fourth question, whether limiting marriage
to partners of the opposite sex violated the Charter, but they
refused to comment on this matter, since to do so would
involve commenting on decisions of lower courts that had
not been appealed and should therefore be considered
settled .30

Legislation

Civil Marriage Act, SC 2005, c 33.

As Bill C-38, the federal government’s same-sex
marriage legislation received first reading in the House of

Commons on February 1, 2005.1 This bill was extensively
debated at second reading and by a legislative committee,
and eventually passed third reading on June 28. The Senate
and its Standing Committee on Legal and Constitutional
Affairs further debated the bill before passing it on July 19. It
received royal assent the following day.

The act declares that “Marriage, for civil purposes,
is the lawful union of two persons to the exclusion of all
others.”32 It goes on to specify that “officials of religious
groups are free to refuse to perform marriages that are not
in accordance with their religious beliefs” without danger
of losing any benefit or facing any sanction.3 3 The act also
includes amendments to eight other acts, including the
Divorce Act, the Income Tax Act, and the Modernization of
Benefits and Obligations Act.

Influences

Jurisprudence

Hyde v Hyde and Woodmansee (1866), [1866] LR 1 P & D
130.

This English polygamy case from 1866 contains the
common law definition of marriage that was still standing over
a century later when the fight for same-sex marriage began:
“Marriage as understood in Christendom is the voluntary
union for life of one man and one woman, to the exclusion
of all others.” 34 The British Columbia Supreme Court upheld
the definition in EGALE, 35 and the Ontario Court of Appeal
debated creating a new common law definition in Halpern, 36
but ultimately left redefining marriage to the legislature.

Brown v Board of Education, 347 US 483 (1954).

This United States Supreme Court case from 1954
dealt with school segregation and introduced the principle
that “separate but equal” is inherently discriminatory. This
argument was used in the campaign for same-sex marriage
to support the idea that civil unions were an unacceptable
substitute for marriage. 3 7

Loving v Virginia, 388 US 1 (1967).

In this judgment from 1967, the United States
Supreme Court overturned the laws prohibiting interracial
marriage. Lawyers arguing in favour of same-sex marriage
pointed to this case as evidence that marriage is an evolving
institution,’ and the case was cited in the EGALE and
Halpern cases.

25 Re Same-Sex Marriage, 2004 SCC 79 at paral 9, [2004] 3 SCR 698.
26 lbid at para2.
27 lbid at para43.
28 lbid at para33.
29 lbid at para52.
30 lbid at para7l.
31 Bill C-38, An Act respecting certain aspects of legal capacity for marriage for civil purposes, 1st Sess, 38th Parl, 2005.

32 Civil Marriage Act, SC 2005, c 33, s 2.
33 Ibid, ss 3-3.1.
34 Hyde, supra note 5 at 130.
35 Supra note 14.
36 Supra note 17.
37 Larocque, supra note 1 at 71.
38 ibid at 68.

2014 Canadian Law Library Review/Revue canadienne des biliothbques de droit, Volume/Tome 39, No. 1 11

Legislation

Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act
1982 (UK), 1982, c 11.

Introduced in the early 1980s, the Canadian
Charter of Rights and Freedoms was the central document
that allowed for the expansion of gay rights and eventually
for same-sex marriage. All the Canadian post-Charter
decisions discussed above base their arguments on the
relevant provisions of the Charter.

Section 15(1) states that “Every individual is equal
before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination

and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or
physical disability.” The Egan decision confirmed that section
15(1) should be interpreted to include sexual orientation. 3 9

However, if a law is found to be discriminatory, it can still
remain a law if the court is convinced that the limitation of
the right is “demonstrably justified in a free and democratic
society.”40 Initially, the denial of the right of people of the
same sex to marry was found to meet this test,4 1 but later
cases rejected this argument. 4 2

39 Supra note 8.
40 Charter, supra note 4, s 1.
41 See eg EGALE Canada, supra note 14.
42 See eg Halpern, supra note 18.

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2014 Canadian Law Library Review/Revue canadienne des biliothbques de droit, Volume/Tome 39, No. 112

DATE DOWNLOADED: Tue Jan 19 16:44:19 2021
SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

Carl F. Stychin, Faith in Rights: The Struggle over Same-Sex Adoption in the United
Kingdom, 17 Const. F. 7 (2008).

ALWD 6th ed.
Stychin, C. F., Faith in rights: The struggle over same-sex adoption in the united
kingdom, 17(1) Const. F. 7 (2008).

APA 7th ed.
Stychin, C. F. (2008). Faith in rights: The struggle over same-sex adoption in the
united kingdom. Constitutional Forum, 17(1), 7-16.

Chicago 7th ed.
Carl F. Stychin, “Faith in Rights: The Struggle over Same-Sex Adoption in the United
Kingdom,” Constitutional Forum 17, no. 1 (2008): 7-16

McGill Guide 9th ed.
Carl F Stychin, “Faith in Rights: The Struggle over Same-Sex Adoption in the United
Kingdom” (2008) 17:1 Const F 7.

AGLC 4th ed.
Carl F Stychin, ‘Faith in Rights: The Struggle over Same-Sex Adoption in the United
Kingdom’ (2008) 17(1) Constitutional Forum 7.

MLA 8th ed.
Stychin, Carl F. “Faith in Rights: The Struggle over Same-Sex Adoption in the United
Kingdom.” Constitutional Forum, vol. 17, no. 1, 2008, p. 7-16. HeinOnline.

OSCOLA 4th ed.
Carl F Stychin, ‘Faith in Rights: The Struggle over Same-Sex Adoption in the United
Kingdom’ (2008) 17 Const F 7

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Copyright Information

Faith in’Rights: the
Struggle Over Same-
Sex Adoption in the
United Kingdom

Carl. F. Stychin*

Introduction

Over the past decade of Labour government
in the United Kingdom (U.K.), the regulation of
sexual orientation through law has frequently
been explained by its supporters through a nar-
rative of progress and even emancipation. The
most recent junction in this journey came in
2007, with the coming into force of the Equality
Act (Sexual Orientation) Regulations on 30 April
2007.1 These Regulations contain measures pro-
hibiting discrimination on grounds of sexual
orientation in the provision of goods, facilities
and services, education, the use and disposal of
premises, and the exercise of public functions.2

The Regulations must be set within the wider
context of the still fairly new Equality Act 2006,1
which created the Commission for Equality and
Human Rights (the enforcement body for the
Act), and which replaces the piecemeal system
of equality rights protection previously found
in the Equal Opportunities Commission, the
Commission for Racial Equality, and the Dis-
ability Rights Commission. The Equality Act
2006 outlawed discrimination on the grounds
of religion or belief, and imposed duties related
to sexual discrimination on persons perform-
ing public functions, but left for a later day the
issue of sexual orientation discrimination in the
provision of goods and services.

Understood in this context, and given the
fact that legal change addressing this issue came
about by statutory instrument rather than pri-
mary legislation,4 the sexual orientation Regu-

lations might be interpreted as a mere tidying
up exercise. However, this would be a misinter-
pretation of events. The issue of sexual orienta-
tion was held over to be dealt with by second-
ary legislation, in part because of the perceived
complexity and controversial nature of the issue
and, perhaps, in the hope that extensive public
debate and discussion would be avoided.’ Ulti-
mately, the Regulations were approved by Par-
liament in March 2007, and entered into effect
on 30 April 2007.

Even before the Regulations were laid be-
fore Parliament, a storm of controversy erupted
which raised wide-ranging concerns related to
rights, sexuality, religion, beliefs, secularism,
the limits of tolerance of minorities, as well as
to how minorities are socially constructed. This
article focuses on parliamentary and print me-
dia representations of the issues at stake. Cen-
tral to the controversy was the future status of
Catholic adoption agencies, which are subject
to the Regulations in that they provide a service
to prospective parents. 6 The widely discussed
question was whether those agencies should be
exempt from a duty to consider same-sex cou-
ples on an equal basis in the application of the
“best interests of the child” test, in placing chil-
dren for adoption.

The issue assumed a symbolic importance
far beyond its practical relevance. It was widely
agreed that there were many avenues open to
same-sex couples wishing to pursue adoption
aside from the Catholic agencies and, intuitively,
it seemed unlikely that many same-sex couples

Constitutional Forum constitutionnel

would be adamant on pursuing adoption only
through a Catholic agency. Nevertheless, same-
sex adoption came to stand for a larger princi-
ple concerning the extent to which faith-based
groups, which receive public subsidy, could be
exempted from anti-discrimination legislation
when providing a public service. Conversely, the
principle was expressed as concerning the ex-
tent to which the discourse of equality and gay
rights trumped the sincerely held faith-based
views of a minority, views which were being ex-
pressed through the provision of adoption ser-
vices. Not surprisingly, the adoption issue also
fuelled well-worn discourses around the best
interests of children, same-sex parenting, and
the heterosexual family as the “gold standard”
in the raising of children.7

Constructing the Minority Group

Opposition to the sexual orientation Regu-
lations was articulated through a mixture of old
and new tropes. While my particular interest in
this article is the new discourses around secu-
larism and the rights of religious minorities to
exist in a secular society – a characterization
which I want to problematize – there is still
plenty of space for longstanding old arguments
which centre on children. Not only do these
discourses focus upon the way in which the
best interests test should be applied, but also on
other claims familiar to those who have studied
anti-gay rhetoric.’ For example, much attention
was paid to the family run bed-and-breakfast
establishment, and the alleged right of propri-
etors to turn away same-sex couples because the
proprietors’ faith would not allow them to cre-
ate opportunities for those couples to engage in
sodomy within the family home (a home which,
of course, had been turned into a commercial
operation).9 This example allowed both sides to
demonstrate the manipulability of the binaries
of public/private, commercial/residential, and
home/work, in support of their arguments. It
also gave rise to interesting references to the
act/identity distinction related to sexual orien-
tation. Couples would be turned away, not be-
cause of who they are, but because of what they
would potentially do (on the assumption that
the act of doing sodomy is an inevitable result of

being given an opportunity to practice it).’ The
language of child protection also figured prom-
inently in this example, appearing in claims de-
fending children in hypothetical families from
the infiltration of homosexuals into the family
home. Such language resonates with very old
tropes concerning pollution and infection.”

In both political and media debate, consid-
erable time was also given over to schools. Bar-
oness O’Cathain, for example, recounted that:

a pro-gay group . .. is already going around
the country telling schools that the regulations
mean they have to normalise homosexuality
to seven-year-olds and read gay fairy tales in
the classroom. 2

Here, the longstanding trope concerning the
promotion of homosexuality through educa-
tion reappears; this trope has a pedigree dating
back to the now repealed section 28 of the Local
Government Act,13 which prohibited the promo-
tion of homosexuality by local authorities as a
“pretended family relationship.” 4 Opponents
of the Regulations feared that the letter of the
law, as well as the “climate of fear”‘” created by
the Regulations, would force schools, including
faith-based schools, to promote homosexuality
through gay sex education classes. In this way,
faith-based schools would be prevented from
promoting sexual monogamy through the in-
stitution of marriage.

However, there was also a new focus in pop-
ular and parliamentary debate, which turned
on faith-based, conscientious objectors to ho-
mosexuality – those who provide goods and
services to the public. In this argument, the
wedding photographer and the caterer become
the oft-cited examples of those who might feel
morally compelled to turn away lesbian or gay
clients. 6 The objectors to homosexuality are
consistently constructed as a minority group,
and an increasingly oppressed minority, which
will be forced to act against its genuinely and
deeply held religious beliefs. In the process, the
minority’s rights are trumped (and trampled
upon) in the service of the rights of “well or-
ganised and intolerant lobbies,” 7 who have the
backing of political elites. While supporters of
the sexual orientation Regulations describe the

Volume 17, Number 1, 2008

law as achieving a balance among conflicting
rights; for opponents, the law does precisely the
opposite – it throws the relationship between
equality and freedom of religion out of balance,
and does so in such a way as to counter the
historic Englishness of protections for liberty,
speech, and the freedom of groups to practice
their beliefs. As one opponent of the Regula-
tions puts the point: “It is a development en-
tirely at variance with our well rooted tradition
of religious tolerance and liberty.”‘ In this way,
the law ignores the interests of an increasingly
persecuted minority and puts innocent, morally
upstanding individuals in fear of prosecution. 9

Thus, “religions are now seen not primarily as
beneficiaries of rights of protection from the
state, as subjects enjoying religious freedom, but
as potential sources of human rights breaches.
Religion is a problem.

20

The Silenced Majority

At the same time, critics of the Regulations
suggest that the law has also ignored the voices
of the (silenced) majority, which occupy the
genuine “middle ground” of politics. The sexual
orientation Regulations are “a weapon promot-
ing discrimination against both majority and• “21
minority religious faiths, which have been
marginalized by the actions of political elites
seeking to find favour with a well organized,
articulate, and powerful lesbian and gay con-
stituency. This middle ground is constructed
through “common sense,” but common sense
which also includes the practice of disclaiming
homophobia. 22 That is, opponents of progres-
sive gay rights legislation increasingly make
clear – and this has always been true to some
extent – that they are not homophobic. Indeed,
many commentators and politicians go further
and are at pains to point out that they have sup-
ported gay rights in the past, but that this is a
step too far.23 While these critics proclaim their
support for anti-discrimination legislation in
employment, possibly even for civil partnership
legislation (probably because it is not marriage
in name), and occasionally even support anti-
discrimination legislation with respect to goods
and services in general, the moral or common
sense objection to gay rights should also be re-

spected and protected. Scepticism regarding the
value of same-sex adoption provides one such
example of common sense which is self-evi-
dently true, but which has been silenced by the
totalitarianism of gay rights. 24 Thus, critics seek
to defend both the rights of a minority, as well
as the views of the majority. They can also por-
tray themselves as defenders of the faith, and
all faiths, by pointing to both the established
Church and to the country’s Christian heritage
(which is being eroded by the government), as
well as to the importance of a multifaith, mul-
ticultural society. Finally, critics are the defend-
ers of the best interests of children who are
otherwise sacrificed to a political correctness,
which protects the rights of lesbians and gays as
consumers of adoption services.

In response, proponents of the Regulations
rely heavily on the rhetoric of equality rights,
fairness, and balance: “the measures we have
brought forward protect the rights of individu-
als and organisations to hold religious beliefs
while also ensuring that everyone lives a life
free from harmful discrimination. ‘ 25 Analogies
are drawn between sexual orientation, race, and
gender, all of which are deserving of the same
level of legal protection: “I start from a very firm
foundation: there is no place in our society for
discrimination. 26 The need for compliance with
international obligations is also mentioned. 7

The discourse of child welfare, moreover, is
countered on its own discursive terrain. Argu-
ments are made that the Regulations will pro-
tect gay youth from bullying in schools, protect
children of gay parents from discrimination in
education, and could ensure that children, who
would otherwise not be adopted, will find lov-
ing homes with same-sex couples (although
the gold standard of heterosexual parenting re-
mains largely untroubled in these arguments).
Many supporters of the Regulations also bolster
their positions by proclaiming their own Chris-
tian faith, which is articulated through compet-
ing, progressive principles of tolerance, fairness,
and social justice.2″

But this discursive battle becomes abstract-
ed to a further degree in the debates, as it is in-
creasingly reformulated in terms of a struggle
between secularism and faith. Opponents cas-

Constitutional Forum constitutionnel

tigate the Regulations as yet further evidence
of a secular ideology, which has become the
dominant and guiding principle of the Labour
government and, indeed, of political elites more
generally. In this narrative, it is rights dis-
course, and specifically the Human Rights Act
1998,29 which is central to the undermining of
freedom and pluralism, and which has created a
literal perversion of “right reason.” Through the
protection of human rights, a secular society is
being forced upon the population; this secular
society is one in which religion is relegated to
a narrow private sphere, closeted from public
display. The Regulations do provide for excep-
tions for religious organizations. However, -for
their opponents, these exceptions only protect
the narrow sphere. of worship (that is, religious
identity), rather than the “doing” of religion in
the public realm (the practice). As Julian Rivers
argues, “at best, this seems to create a category
of ‘tolerated’ religion which may be permitted
between consenting adults in private, but which
ideally would be eradicated.”3 ° Therefore, in an
unlikely twist, the distinction between act and
identity – often deployed to regulate sexual
identities and practices – now gets knowing-
ly reversed by opponents of the Regulations in
defence of the right to practice religion.3′ By
contrast, proponents argue that the religious
exceptions ensure that a balancing of rights is
achieved, and the key distinction is the line be-
tween the religious and the commercial. Once
that line is crossed, religious groups must act in
a nondiscriminatory fashion. Moreover, faith-
based schools, it is argued, can continue to pro-
mote monogamous heterosexuality within the
institution of marriage, while providing emo-
tional support to all children.3 2

Secularism as Fundamentalism

Despite the exceptions for religion in the
Regulations, opponents remain adamant that
secularismhas become the dominant ideology
and, indeed, they claim that it is the new reli-
gion of the political class, which has trampled
over and silenced all others. In making this
claim, ambiguity is apparent as to whether
all religions have been unfairly treated, which
is sometimes claimed, or whether, more spe-

cifically, it is the country’s Christian tradition
which is under constant threat from the secu-
lar. At this point, there are interesting analogies
that can be drawn with the way in which Chris-
tianity is constructed as under threat from mul-
ticulturalism. The focus on Catholic adoption
agencies, and the extent to which this issue re-
sulted in extensive joint lobbying of government
by Catholic bishops and the Church of England
hierarchy, underscores the extent to which the
issue was seen as an attack on Christianity. This
is further supported by the way in which sec-
ularism has been constructed, not only as the
new religion, but as a fundamentalist religion,
in which thinly veiled comparisons are drawn
to Islam.33 As Rivers warns:

[1]t seems that a new moral establishment is
developing, which is being imposed by law on
dissenters. Those filling public offices are well
advised to avoid challenging it, and even the
most measured and reasoned public question-
ing of its truth can trigger formal investiga-
tions. This new orthodoxy masks itself in the
language of equality, thus refusing to discuss
its premises and refusing to articulate its con-
ception of the good.

34

Even Catholics on the progressive left, in
defence of gay rights, resort to language that is
not altogether dissimilar: “in the post-socialist
age, non-faith based progressives are deadly se-
rious about imposing their liberalism.”35

In this regard, the debate provides a flavour
of the way in which secularism is invoked in the
U.K. as the sign of a contemporary ideological
struggle. On this point, Judith Butler has re-
cently addressed how secularism is deployed in
the admittedly very different political culture
of France to interrogate how it works to bolster
anti-Islamic “progressive” politics. 36 In doing
so, she also makes the general argument that
“secularism does not so much succeed religion
sequentially, but reanimates religion as part of
its ideas of culture and civilization. ‘ 37 I would
argue that the controversy around the Regula-
tions could be interpreted in support of this the-
sis. Rather than the totalitarian imposition of a
secular ideology upon a faith-based population
– with the replacing of religion by a new faith
(in liberal rights) – we find instead a “mix of

Volume 17, Number 1, 2008

religious and secular ideals, 38 in which secular-
ism does not succeed religion but coexists, per-
haps uneasily, with it.

Butler argues, and here she mirrors the views
of many opponents of the Regulations, that “se-
curalism has a variety of forms, and many of
them involve forms of absolutism and. dogma-
tism that are surely as problematic as those that
rely on religious dogma..”39 However, in the U.K.
the evidence of the absolutism of secularism is
far from compelling. Stewart Motha makes this
very point in relation to the juxtaposition of lib-
eralism and the construction of Islamic funda-
mentalism, when he argues that “the repression
of the religious as the condition of modern poli-
tics reveals itself to be the unfinished enterprise
threatened by the eternal return of religion.”40

Motha refers to a British culture which can
claim to be both “secular in outlook” and, at
the same time, “committed to Christian institu-
tions, political and juridical formations.”’41

There is much evidence for Motha’s claim
in the events surrounding the Regulations. A
superficial examination of the structure of the
Regulations themselves reveals that faith is em-
bedded within the law in the form of exemp-
tions. Religious faith is taken to be synonymous
with the integrity of belief, and serves to exempt
the application of the law. 42 While opponents
may argue that the exemptions are drawn too
narrowly, the relevant point is that they are
drawn on the basis of religion rather than, for
example, on the basis of sincerely held belief.
Moreover, parliamentary debates are virtu-
ally devoid of any criticism of faith-based ho-
mophobic views. 43 Instead, supporters of the
Regulations argue that when religious groups
offer a service to the public, they have crossed
a line (the religious/commercial, public/private
binary) such that the application of the law is
appropriate. 4 But there is little discursive space
for a critique of religion (especially of Christi-
anity), or for a discussion of the offensiveness
of some religious doctrine.45 Furthermore,
faith-based schools, which remain high on the
government’s agenda, are still allowed to pro-
mote marriage and heterosexuality as the most
desirable way of life. 46 The one notable excep-
tion to this uncritical acceptance of religion can

be found in the speech of the openly gay and
Muslim member of the House of Lords, Lord
Alli, who makes clear that discriminatory views
grounded in religious texts are unacceptable in
a liberal democracy, and not just when religious
actors enter the public, commercial sphere:

When I read the Koran, it tells me in some pas-
sages that I must kill Jews. If I believe strongly
enough that I must kill Jews, does that mean
that I have the right to say, ‘Exempt me from
legislation because I believe it strongly enough.
Let me discriminate against Jews, at least, be-
cause I believe it strongly enough and it is writ-
ten in the Koran?’47

However, what further undermines the
claim of the absolutism of secularism in the
way in which it is deployed by opponents of the
Regulations, is the place given to religious voic-
es in political debate in the U.K. The Catholic
Church and Church of England played promi-
nent roles around the same-sex adoption ques-
tion, facilitated by the membership of Church
officials in the House of Lords, hardly a secu-
lar institution.4 But the political terrain was
further complicated by the religious beliefs of
prominent Labour politicians, and the way in
which religion, particularly for politicians of
the centre-left, has been partially closeted from
the public sphere. Most famously, Tony Blair’s
admission of his deeply held religious beliefs
and his conversion to Catholicism immediately
after leaving office, combined with his openly
admitted fear of being labelled a “nutter” for his
faith, underscore the complexities of religion for
the Labour Party.49 The then Secretary of State
for Communities and Local Government, Ruth
Kelly, is well known as a practising Catholic and
member of the Opus Dei organization, and ru-
mour had it that she had difficulty supporting
the Regulations, despite having responsibility
for social cohesion and inclusion as part of her
government portfolio. 0 Even the Civil Partner-
ship Act 2004,1 although often described as a
further sop to the lesbian and gay communities,
prevents the forming of civil partnerships in
religious buildings, and ensures that marriage
is restricted to the union of one man and one
woman.

52

The need for discretion that seems to be felt

Constitutional Forum constitutionnel

by some British politicians – with respect to
Roman Catholicism at least – could be seen as
evidence that practising Christians have been
forced into a sphere of privacy – even secre-
cy – by the dominance of secularism on the
left. Equally, however, the need for discretion
might be the result of age-old stereotypes re-
garding Catholics, secret societies, and foreign
allegiance to the Vatican. I would suggest that
it indicates, at a minimum, a complex and con-
tested relationship between religions, but more
crucially between Christianity and politics in
Britain today, which is informed by the historic
roles played by the established Church and Ro-
man Catholicism.

53

Kate Nash has argued that human rights
politics in the U.K. is best described in terms of
a “communitarian rights culture,” in which the
values of dialogue, compromise, and “the at-
tempt to reach and sustain agreement over con-
flict and divergence in understandings of social
relationships” is paramount.5 4 She finds that the
Civil Partnership Act exemplifies this culture, in
which the divisive debates which have charac-
terized struggles over same-sex marriage have
been largely absent from British political life. In
my view, there is much merit to this position,
but the sexual orientation Regulations demon-
strate the precariousness of such communitari-
an approaches to rights, as well the potential for
rights struggles to produce polarized positions.
Although the Regulations carve out religious ex-
emptions, and are characterized by proponents
as a sensible, reasonable balancing of equality
rights and religious freedom in a democratic so-
ciety, the language of balance and compromise
always leaves open the possibility of further
struggle over the proper balance of competing
rights, and over the question of whether society
has gone too far: “this legislation effects a rear-
rangement of discriminatory attitudes and bias
to overcompensate and skew the field the other
way. ’55 In this moment, rights are constructed
as a zero-sum game. 6 They favour individual-
ism over “the rights of voluntary societies.

’57

Given that the Human Rights Act itself was a
skilful attempt at balancing fundamental rights
and the principle of parliamentary supremacy,
leaving inevitable rights compromises to be re-
solved in the political realm, it is hardly surpris-

ing that British rights discourse has become a
site of struggle, and that debates over human
rights have been described as a quagmire.5 8 Fur-
thermore, it may be that the issue of same-sex
adoption adds a particularly combustible fuel to
the politics of rights because of the complex re-
lationship between children, parents, and sexu-
ality.59 In part, this is because it is far too easy to
move from the rights of consumers of services
to the right to possess and perhaps “consume”
our children. 61 Such arguments leave support-
ers of the Regulations to rely on their faith in
the judicial application of the best interests test
to ensure that children’s interests are adequately
protected.

Concluding Thoughts

To conclude, the Critical Legal Studies move-
ment long ago taught us to be cautious about
putting too much of our faith in rights.61 The
experience of rights struggles around sexuality
over the past decade reveals that the language of
rights lends itself to anti-gay arguments which
not only deploy rights talk, but which can mirror
the arguments advanced by progressive actors.
The debate over same-sex adoption highlights
this point. Opponents of the sexual orientation
Regulations can construct faith-based groups as
disenfranchised, oppressed minorities which
are increasingly forced to exercise discretion,
and keep their beliefs in the private sphere, clos-
eted away from public view. According to them,
the being of religion may be their right, but the
doing of religion is subject to intense legal reg-
ulation by the state, undermining the core of
their freedom. In this narrative, rights are being
undermined by the secularist totalitarianism
of the political elites and the fanatics of the les-
bian and gay movement. Simultaneously, rights
discourse is deployed in the name of the com-
mon sense majority and on behalf of vulnerable
children needing protection from rights seekers
themselves.

However, the very fact that the Regulations
have come into force may suggest cause for op-
timism, and the increasing marginalization of
voices of opposition. On the other hand, the
need felt by government to postpone applica-
tion of the Regulations to Catholic adoption

Volume 17, Number 1, 2008

agencies until 31 December 2008, pending fur-
ther analysis of their potential impact, suggests
that the supposed triumph of secularism is far
from complete.

Notes
* School of Law, University of Reading, United

Kingdom.
1 Equality Act (Sexual Orientation) Regulations,

S.I. 2007/1263 (BAILII) [Regulations].
2 The offence is created by section 3 of the Regula-

tions. Section 3(1) states: “For the purposes of
these Regulations, a person (“A”) discriminates
against another (“B”) if, on grounds of the sexual
orientation of B or any other person except A, A
treats B less favourably than he treats or would
treat others (in cases where there is no material
difference in the relevant circumstances).”

3 (U.K.), 2006, c. 3 (BAILII).
4 The issue of employment discrimination on the

basis of sexual orientation had previously been
dealt with by the Employment Equality (Sexual
Orientation) Regulations S.I. 2003/1661 (BAILII)
in 2003, which implement the European Com-
munity Equal Treatment Directive 2000/78/EC
of 2000.

5 In fact, little opportunity to debate the question
was made available in Parliament. However, the
choice to use secondary legislation was itself sub-
ject to some fierce criticism, and not only from
critics of the substance of the Regulations.

6 By comparison, in some states in the United
States statutory restrictions remain in place
prohibiting the adoption of children by lesbians
and gays. See Carlos A. Ball, “The Immorality of
Statutory Restrictions on Adoption by Lesbians
and Gay Men” (2007) 38 Loyola University Chi-
cago Law Journal 379.

7 On heterosexuality as the gold standard of
parenting, see Judith Stacey & Timothy J. Biblarz,
“(How) Does the Sexual Orientation of Parents
Matter?” (2001) 66 American Sociological Re-
view 159 at 162.

8 See e.g., Didi Herman, 7he Anti-Gay Agenda: Or-
thodox Vision and the Christian Right (Chicago:
University of Chicago Press, 1997).

9 Section 6 of the Regulations, however, contains
an exception in relation to the family home if the
premises do not accommodate more than two
households or six individuals (in addition to the
landlord and his/her near relative).

10 See e.g., Lord Mackay: “They must be prepared
to allow them, if appropriate, to use the facilities

that they provide for the purpose of homosexual
practice. That is quite different from other types
of discrimination.” U.K., House of Lords, Official
Report, session 2 (2007), vol. 688, col. 184 (9
January 2007) (Lord Mackay of Clashfern).

11 See e.g., Viscount Brookeborough: “This is about
having people among your family … the Gov-
ernment are introducing into a family something
from which it is surely the right of the parents
to protect their children until they are at an age
at which they can decide for themselves.” Supra
note 10 at col. 194-5.

12 U.K., House of Lords, Official Report, session 4
(2007), vol. 690, col. 1298 (21 March 2007).

13 Local Government Act 1988 (U.K.), 1988, c. 9
(BAILII).

14 For a discussion of the discourses surrounding
section 28 and its repeal, see Carl F. Stychin,
Governing Sexuality: The Changing Politics of
Citizenship and Law Reform (Oxford: Hart
Publishing, 2003); see also Momim Rahman,
“The Shape of Equality: Discursive Deployments
During the section 28 Repeal in Scotland” (2004)
7 Sexualities 150.

15 Supra note 10 at col. 192 (Lord Tebbit).
16 See e.g.,

They make it possible for homosexual activists
to sue people who disagree with a homosexual
lifestyle because of their religious beliefs.
Bed and breakfast owners and Christian old
people’s homes will be sued for not giving
a double bed to homosexual civil partners.
Wedding photographers will be made to pay
compensation for not taking bookings for
civil partnership ceremonies. Christians in
business could even be sued for sharing their
faith with customers. Worst of all, they require
religious organisations to choose between
obedience to God and obedience to the state.

Ibid. at col. 180 (Lord Morrow).
17 Supra note 12 at col. 1305 (Lord Anderson of

Swansea).
18 Ibid. at col. 1302 (Lord Bishop of Southwell

and Nottingham); see also Julian Rivers, “Law,
Religion and Gender Equality” (2007) 9 Ecclesi-
astical Law Journal 24 at 52: “Freedom of religion
in English law has not simply been about the
freedom to believe and manifest that belief in
worship and doctrine, but about the construction
of a plurality of protected social and material
spaces in which believers could live faithfully to
their religion.”

19 See e.g., Lord Tebbit: “these regulations would
leave perfectly innocent people in fear of legal ac-
tion by the fanatical wings of the lesbian and gay
pressure groups,” supra note 15.

Constitutional Forum constitutionnel

20 Rivers, supra note 18, at 35.
21 Melanie Phillips, “A law that turns sexual toler-

ance into tyranny” Daily Mail (19 June 2006).
22 The practice of disclaiming homophobia is

discussed by Burridge in the context of op-
position to the repeal of section 28 of the Local
Government Act: see Joseph Burridge, “‘I am not
Homophobic But…’: Disclaiming in Discourse
Resisting Repeal of Section 28” (2004) 7 Sexuali-
ties 327. The practice of disclaiming is not a new
phenomenon: see Anna Marie Smith, New Right
Discourse on Race and Sexuality: Britain, 1968-
1990 (Cambridge: Cambridge University Press,
1994).

23 See Phillips, supra note 21: “We have therefore
exchanged one deep intolerance for another.”

24 See e.g., Lord Blackwell, supra.note 12 at col.
1320:

we should allow adoption agencies to have, as
one of the criteria that they use in selecting
parents, the preference, if that can be achieved,
for having two parents of opposite sex.

25 Communities and Local Government, Guidance
on New Measures to Outlaw Discrimination on
Grounds of Sexual Orientation in the Provision of
Goods, Facilities and Services (London: Depart-
ment for Communities and Local Government,
2007) at 5.

26 Tony Blair, “No place for discrimination in
society,” online: 10 Downing Street <http://www.
numberlO.gov.uk/output/PageO869.asp>.

27 Supra note 10 at col. 202 (Lord Lester of Herne
Hill).

28 See e.g., Lord Lester of Herne Hill, supra note
12 at col. 1323: “the principles of human rights
are universal.., they derive not only from the
secular Enlightenment but from all the great
religions.” See also, Baroness Andrews, supra
note 10 at col. 1328: “there is no polarity between
Christianity and our joint commitment to put an
end to discrimination,”

29 (U.K.), 1998, c. 18 (BAILII).
30 Rivers, supra note 18 at 36.
31 See Rivers, supra note 18 at 46:

[exceptions] tend to address what are
centrally ‘religious’ activities, and they do not
address peripheral difficulties that might be
experienced by religious people trying to work
in a changed ethical environment.

32 See Department for Education and Employment,
Sex and Relationship Education Guidance (Not-
tingham: DfEE Publications, 2000) at 4:

pupils should be taught about the nature and
importance of marriage for family life and
bringing up children.. But the government

recognises . . . that there are strong and
mutually supportive relationships outside
marriage. Therefore pupils should learn
the significance of marriage and stable
relationships as key building blocks of
community and society.

33 See e.g., Carla Powell, “Beware the Taleban of
Tolerance,” The Spectator (10 February 2007).

34 Rivers, supra note 18 at 52.
35 Conor Gearty, “Sex and the Secular Liberal” The

Tablet (10 February 2007) 9:
36 Judith Butler, “Sexual Politics, Torture, and Secu-

lar Time” (2008) 59 British Journal of Sociology 1.
37 Ibid at 14.
38 Ibid.
39 Ibid at 13.
40 Stewart Motha, “Liberal Cults, Suicide Bombers,

and other Theological Dilemmas” (2009) 5 Jour-
nal of Law, Culture and the Humanities in press,
unpublished manuscript on file with author.

41 Ibid.
42 See e.g., section 14(3) of the Regulations:

Nothing in these Regulations shall make
it unlawful for an organisation to which
this regulation applies, or for anyone
acting on behalf of or under the auspices
of an organisation to which this regulation
applies – (a) to restrict membership of the
organisation, (b) to restrict participation in
activities undertaken by the organisation
or on its behalf or under its auspices, (c) To
restrict the provision of goods, facilities or
services in the course of activities undertaken
by the organisation or on its behalf or under its
auspices, or (d) to restrict the use or disposal
of premises owned or controlled by the
organisation, in response of a person on the
ground his sexual orientation.” Section 14(3)
applies, by virtue of s 14(1) “to an organisation
the purpose of which is – (a) to practice a
religion or belief, (b) to advance a religion or
belief, (c) to teach the practice or principles of
a religion or belief, (d) to enable persons of a
religion or belief to receive any benefit, or to
engage in any activity, within the framework
of that religion or belief.

43 See e.g., Lord Rooker, supra note 10 at col. 209:
“The regulations have been drafted to allow
for the views and opinions of religious groups
and organisations to be protected where it is
necessary to comply with doctrine.”

44 See e.g., Baroness Andrews supra note 12 at col.
1291:

The Government have provided an exemption
for religious or belief organisations, and
those acting under their auspices, where
that is necessary to avoid conflicting either
with the doctrine of the organisation or the
strongly held beliefs of a significant number
of a religion’s followers. But where religious

Volume 17, Number 1, 2008

organisations choose to step into the public
realm and provide services to the community,
either on a commercial basis or on behalf of
and under contract with a public authority,
that surely brings with it a wider social
responsibility to provide those services for the
public as they are, in all their diversity, and
not to pick and choose who will benefit or who
will be served.

45 Lord Rooker, supra note 10 at col. 208: “It is not
the Government’s intention to attack religious
ethos.”

46 Supra note 32 at 8: “Schools of a particular reli-
gious ethos may choose to reflect that in their sex
and relationship education policy.”

47 Supra note 12 at col. 1317. However, some op-
ponents do make the claim that religion is not
homophobic: “Christians and other faiths across
the country have a gracious and loving attitude
towards their neighbours, regardless of their
orientation,” ibid. at col. 1317 (Lord Browne of
Belmont); “The Catholic Church is not homo-
phobic,” ibid. at col. 1306 (Baroness Morris of
Bolton).

48 This increasing vocal role of religious leaders in
openly lobbying politicians has not abated since
the Regulations were passed, and can be seen
graphically in the recent Human Fertilisation
and Embryology Bill debates in 2008, in which
Catholic bishops exhorted Catholic Members
of Parliament to oppose the legislation on the
grounds of conscience. Indeed, at the time of the
sexual orientation Regulations, a Roman Catho-
lic Cardinal “felt about to write a letter to the
Prime Minister and the entire Cabinet setting
out ‘Catholic teaching about the foundations of
family life,”‘ Gearty, supra note 35 at 8.

49 “Blair feared faith ‘nutter’ label” BBC News (25
November 2007) online BBC News < http://news.
bbc.co.uk/1/hi/uk-politics/7111620.stm>.

50 “Kelly’s views on gays questioned” BBC News (9
May 2006) online BBC News <http://news.bbc.
co.uk/2/hi/uk news/politics/4756399.stm>.

51 (U.K.), 2004, c. 33 (BAILII).
52 See Carl F. Stychin, “Not (Quite) a Horse and

Carriage: The Civil Partnership Act 2004″ (2006)
14 Feminist Legal Studies 79.

53 The hostile reactions to the Archbishop of
Canterbury’s reflections on Sha’ria Law suggest
that issues of law, religion and politics remain a
potent combination.

54 Kate Nash, “Human Rights Culture: Solidarity,
Diversity and the Right to be Different” (2005) 9
Citizenship Studies 335 at 346.

55 Supra note 12 at col. 1309 (Archbishop of York).
56 Ibid. at col. 1298 (Baroness O’Cathain): “The

Government have taken the view that gay rights
trump religious rights … A citizen’s right to
manifest sexual orientation is absolute, but the
right to manifest religious belief is not.”

57 Ibid. at col. 1304 (Lord Pilkington of Oxenford).
58 Ibid. at col. 1311 (Archbishop of York).
59 The issue has also been legalized through a case

before an Employment Appeal Tribunal, con-
cerning whether a magistrate could refuse to
follow the Regulations in relation to adoption,
on the basis of a moral objection: McClintock v.
Department of Constitutional Affairs (2007) WL
3130902, Appeal No. UKEAT/0223/07/CEA at p.
62. His arguments failed at the original tribunal
as well as on appeal. The Tribunal concluded:

he expressed his objections on grounds
which the Tribunal was entitled to find did
not engage the terms of the Religion and
Belief Regulations. Even had they done so,
the Tribunal found that the Department was
fully justified in insisting that magistrates
must apply the law of the land as their oath
requires, and cannot opt out of cases on the
grounds that they may have to apply or give
effect to laws to which they have a moral or
other principled objection.

By way of contrast, an Employment Tribunal has
recently ruled that the failure to exempt a regis-
trar from performing civil partnership registra-
tions, because the requirement to do so clashed
with her Christian beliefs, amounted to both di-
rect and indirect discrimination on the grounds
of religion and belief: Ladele v London Borough of
Islington (2008) Case No. 2203694/2007.

60 Of course, the tragic irony in this narrative is the
historic role of Christian denominations in the
abuse of children (especially those in care), which
for so long remained shielded in a protected
sphere of privacy and secrecy.

61 See e.g., Joel Bakan, Just Words: Constitutional
Rights and Social Wrongs (Toronto: University
of Toronto Press, 1997); Judy Fudge & Harry
Glasbeek, “The Politics of Rights: A Politics with
Little Class” (1992) 1 Social & Legal Studies 45.

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SAME-SEX MARRIAGE AND

THE SAME OLD CONSTITUTION*

Ronalda Murphy

INTRODUCTION

The Reference re Same-Sex Marriage’ is not a

major opinion on the rights of same-sex couples in
Canada, but it is nonetheless an important and

fascinating case. There are only a few lines that
are about the “rights” of same-sex couples. Did

the Supreme Court of Canada “duck” the issue?
Was the Court carefully gauging how much or
little political capital it had and making a political

decision to say as little as possible on this topic?

The Court certainly displayed strategic brilliance,
but it did not do so in the name of avoiding the
“political” hot topic of same-sex marriage. It is

factually difficult to maintain the view that the
Supreme Court of Canada is loath to enter into this

political debate. It has been the lead social
institution in Canada in terms of responding to the

claims of gays and lesbians to equality in law,’
and it has never been shy of dealing with topics

simply because they involve controversial political

issues.3 Rather, the Court’s brilliance lies in its

minimalist and almost weary tone. This approach
had the effect of taking the wind out of the sails of

those opposed to same-sex marriage: the same-sex

advocates definitely win the constitutional race,

Thanks to Thorn Yachnin for great last-moment research

assistance, to William and Jim for getting married and inspiring
this comment.
[2004] 3 S.C.R. 698, 2004 SCC 79, online: CanLl1
<h ttp ://www. can lii.org/ca/cas/scc/2004 /2004scc7 9.h tm l>
[Same-Sex Reference].

See generally, Vriend v. Alberta, [1998] 1 S.C.R. 493, online:

CanLn <http://www.canlii.org/ca/cas/scc/1998/1998scc30.

html> [Vriend]; and Egan v. Canada, [1995] 2 S.C.R. 513,

online: CanLlI <http://www.canlii.org/ca/cas/scc/1995/

1995scc49.html> [Egan].

Two such cases that I discuss in this comment are Rejerence re

Secession of Quebec, [1998] 2 S.C.R. 217, online: CanLil
<http://www.canlii.org/ca/cas/sc c/1998/1 998scc63.html>

[Quebec Secession Retrence]; and Sauvc v. Canada (Chief

Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68, online:

CanLil <http://www.canlii.org/ca/cas/scc/2002/2002scc68.

html> [Sauv ].

FORUM CONSTITUTIONNEL (2005) 14:3

but they do so because according to the Supreme
Court, there is no provincial constitutional
headwind that can stop them. In short, provinces
can complain all they want about the federal
position in favour of same-sex marriage, but the
wedding will go on despite and over their
objections to the ceremony.

I begin the comment with a description of the two
key legal issues, federalism and rights. I explain
why the Supreme Court’s resolution of these
issues is correct and provide a critical analysis of
the opinion, focussing on three questions: Is
anything “natural” in law? Where does the content
of rights come from? And finally, do we have
reasonable expectations of constitutions and their
interpreters?

BACKGROUND AND HOLDING

On 16 July 2003, pursuant to section 53 of the
Supreme Court Act, 4 the Governor in Council
issued an order in council referring the following
questions to the Supreme Court of Canada with
regard to the federal government’s proposed
legislation providing for same-sex marriage:

1. Is the annexed Proposal for an Act
respecting certain aspects of legal

capacity for marriage Jor civil

purposes within the exclusive

Supreme CourtAct, R.S.C. 1985, c. S-26, s. 53(1) provides:

53.(I) The Governor in Council may refer to the
Court for hearing and consideration important questions
of law or fact concerning …

(d) the powers of the Parliament of Canada, or of
the legislatures of the provinces, or of the
respective governments thereof, whether or
not the particular power in question has been
or is proposed to be exercised.

legislative authority of the Parliament

of Canada? If not, in what particular

or particulars, and to what extent?

2. If the answer to question 1 is yes, is

section 1 of the proposal, which

extends capacity to marry to persons

of the same sex, consistent with the
Canadian Charter of Rights and

Freedoms? If not, in what particular

or particulars, and to what extent?

3. Does the freedom of religion

guaranteed by paragraph 2(a) of the

Canadian Charter of Rights and
Freedoms protect religious officials
from being compelled to perform a

marriage between two persons of the

same sex that is contrary to their
religious beliefs?

4. Is the opposite-sex requirement for

marriage for civil purposes, as
established by the common law and
set out for Quebec in section 5 of the

Federal Law – Civil Law
Harmonization Act, No. 1, consistent

with the Canadian Charter of’Rights

and Freedoms? If not, in what

particular or particulars and to what

extent? 5

The operative sections of the proposed legislation

read as follows:

1. Marriage, for civil purposes, is the

lawful union of two persons to the

exclusion of all others.

2. Nothing in this Act affects the

freedom of officials of religious

groups to refuse to perform
marriages that are not in

accordance with their religious

beliefs.6

P.C. 2003-1055. The fourth question was added on 26 January

2004, by a second order in council that amended the first:

Amendmentto Orderin Council2003-1055, P.C. 2004-28. See

also Same Sex R ference, supra note I at paras. 2-3.

Department ofJustice Canada, Press Release, “Reference to the

Supreme Court ofCanada” (17 July 2003), online: Department

of Justice Canada <http://canada.justice.gc.ca/en/news/nr/

2003/doc30946.html>. See also Same-Sex Reference, ibid. at

On 9 December 2004 the Supreme Court of

Canada held that under section 91(26) of the
Constitution Act, 1867,7 the federal government

has legislative authority to pass laws in relation to

marriage, and that case law has consistently held
that this authority includes laws on the capacity to
marry. According to the Court, extending the

definition of civil marriage to include same-sex

couples is a law regulating the “capacity” to
marry, which falls within the federal power to

legislate in relation to marriage. As such, section

1 of the proposed Act is intra vires the federal

government. What the federal government cannot
do is regulate non-marital relationships. Further,

the Court held that section 2 of the proposed Act
offering religious freedom rights for those

solemnizing marriage – is not a law in relation to
marriage but rather one regarding its
“solemnization,” a subject matter that is allocated

to the provinces under section 92(12) of the
Constitution Act, 1867. Section 2 of the proposed
Act was therefore held to be ultra vires Parliament.

The heart of the decision on these points is

contained in the following passage in which the
Court rejected the logic that would support

provincial law on marriage:

Marriage and civil unions are two distinct

ways in which couples can express their
commitment and structure their legal

obligations. Civil unions are a
relationship short of marriage and are,

therefore, provincially regulated. The
authority to legislate in respect of such

conjugal relationships cannot, however,

extend to marriage. If we accept that
provincial competence in respect of same-

sex relationships includes same-sex

marriage, then we must also accept that
provincial competence in respect of

opposite-sex relationships includes
opposite-sex marriage. This is clearly not
the case. Likewise, the scope of the
provincial power in respect of

solemnization cannot reasonably be
extended so as to grant jurisdiction over

paras. 15, 35.
(U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II,

No. 5.

(2005) 14:3 CONSTITUTIONAL FORUM

same-sex marriage to the provincial
legislatures. Issues relating to solemniz-
ation arise only upon conferral of the right
to marry. Just as an opposite-sex couple’s
ability to marry is not governed by s. 92
(12), so a same-sex couple’s ability to
marry cannot be governed by s. 92(12).’

These are the “federalism” parts of the opinion.
The “trite law” 9 on a federalism question is that
first you characterize the subject matter of the law
– its “pith and substance,” or dominant
characteristic. Then you look at the text of the
Constitution Act, 1867 and see which of the two

levels of government is constitutionally em-
powered to pass laws on that topic. Section 91 is
the federal list, and section 92 is the provincial
one.

10

In many cases, this two-step process is
actually harder than it sounds; otherwise,
constitutional law would be an easier course to
take or to teach. It is simply not obvious what falls
within or beyond the federal power to regulate
“trade and commerce” (under section 91(2)) or the
provincial power over “property and civil rights”
(under section 92(13)). These are deliberately
large and vague phrases, and case law provides the
only way to undertake such an analysis.
Alternative sources of jurisdiction are argued in
many cases, and in no case is an analysis under
step one undertaken by a litigant or a judge
without knowing the effect of the characterization
under step two. So it is not really a two-step
dance, despite the triteness of the law. It is one
step: develop an argument about characterization
that triggers a particular head of power. If you are
is seeking to argue for a federal law, you say that
in pith and substance the law is one that X, where
X matches a federal head of power as defined
through case law under step two. To challenge a
federal law, argue for a pith and substance that
maps onto decided cases regarding provincial
power.11 Every law has to belong to either one or

Same-Sex Reference, supra note I at para. 33.

Jhid. at para. 13.
10 There are other sources of legislative authority in the

Constitution Act, 1867 but ss. 91-92 are the primary sources.

For example, if there is a law regulating transactions, and you

want to find federal authority, you will characterize the law as

one governing interprovincial and international trade, or a law
regulating the economy as a whole. Opposing arguments would

focus on the intraprovincial dimensions of the transaction being

targeted so as to trigger the property and civil rights head of

FORUM CONSTITUTIONNEL (2005) 14:3

the other level of government, and while
sometimes both levels can pass a law in relation to
the same subject matter, those laws will be
pursuant to different “heads” of power.12

There is nothing within the principles of
federalism that constrains the content of a law.
Each level of government can pass any law they
want as long as the “pith and substance” of the law
is a subject matter that falls within their legislative
authority under the Constitution Act, 1867. By

contrast, constitutional rights do operate to limit
what a government can say or do in a law, limiting
both the federal and provincial levels of
government in exactly the same way.

The rights issues in the Same-Sex Reference
are triggered by reference questions two through
four. Question two asked whether it is consistent
with the Charter13 to extend marriage to same-sex
couples, and the Court answered yes for several
reasons. First, the proposed law is a direct
legislative response to several appellate-level
decisions that the opposite-sex requirement for
civil marriage violates section 15(1) of the
Charter, which guarantees equality. 14 Moreover,
while not at all determinative of validity, the

provincial power.
This is the principle of exhaustiveness, explained by the Court,
supra note I at para. 34 as follows [citations omitted]:

The principle of exhaustiveness, an essential

characteristic of the federal distribution of
powers, ensures that the whole of legislative
power, whether exercised or merely potential,
is distributed as between Parliament and the
legislatures. In essence, there is no topic that
cannot be legislated upon, though the
particulars of such legislation may be limited
by, for instance, the Charter. A jurisdictional
challenge in respect of any law is therefore
limited to determining to which head of power
the law relates.

Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (U.K.), 1982, c.l I [Charter].
Same Sex Reference, supra note I at para. 41. The Court cites
the following cases: EGALE Canada v. Canada (A.G.) (2003),

225 D.L.R. (4th) 472, 2003 BCCA 251, online: CanLlI
<http://www.canlii.org/bc/cas/bcca/2002/2002bcca396.html>;
Halpern v. Canada (A.G.) (2003), 65 O.R. (3d) 161 (C.A.),

online: CanLIl <http://www.canlii.org/on/cas/onca/
2003/2003onca10314.html>; and Hendricks v. Qucbec (P.G.),

[2002] R.J.Q. 2506 (Sup. Ct.), online: CanLll <http://
www.canlii.org/qc/jug/qccs/2002/2002qccs 14544.html>. More
recent cases to the same effect are: Dunbar v. Yukon (2004), 8

R.F.L. (6th) 235, 2004 YKSC 54, online: CanLIl <http://

www.canlii.org/yk/cas/yksc/2004/2004yksc54.html>; and

Boutilier v. Nova Scotia (A.G.), [2004] N.S.J. No. 357 (S.C.)

(QL).

instructive preamble of the proposed Act offers
Charter compliance as the motivation for the
law, 5 and the policy of the federal government
has been to address the equality concerns of same-
sex couples. Finally, neither the religious nor the
equality rights of those opposed to same-sex
marriage are impermissibly affected by the
proposed law:

The mere recognition of the equality
rights of one group cannot, in itself,
constitute a violation of the rights of
another. The promotion of Charter rights
and values enriches our society as a whole
and the furtherance of those rights cannot
undermine the very principles the Charter
was meant to foster.

16

Question three asked whether section 2(a) of
the Charter, which guarantees freedom of religion,
protects religious officials from being compelled
to perform same-sex marriages contrary to their
religious beliefs. The Court considered this
question as it applies to the performance of both

Obviously, it is not enough to state that a law has a
constitutionally permissible preamble in order to establish
constitutionality. If this were adequate, all the legislative
authorities would need to do is write perfect preambles to
prevent their legislation from being struck down by the courts.
The same is true of any declaratory provision. See Same Sex
Reference, supra note I at para. 38:

While it is true that Parliament has exclusive
jurisdiction to enact declaratory legislation
relating to the interpretation of its own
statutes, such declaratory provisions can
have no bearing on the constitutional
division of legislative authority. That is a
matter to be determined, should the need
arise, by the courts. It follows that a federal
provision seeking to ensure that the Act
within which it is situated is not interpreted
so as to trench on provincial powers can
have no effect and is superfluous.

The preamble at issue in this case states (ibid. at para. 42):

WHEREAS, in order to reflect values of
tolerance, respect and equality consistent

with the Canadian Charter of Rights and

Freedoms, access to marriage for civil
purposes should be extended to couples of

the same sex;
AND WHEREAS everyone has the

freedom of conscience and religion under
the Canadian Charter of Rights and

Freedoms and officials of religious groups

are free to refuse to perform marriages that
are not in accordance with their religious
beliefs[.]

6 fid. at para. 46.

religious and civil marriages by religious officials
and answered yes, but indicated that under the
federalism principles discussed above, it was for
the provinces to ensure that freedom of religion
was protected. This makes sense: the provinces
have both the power to pass laws in relation to
solemnization and the civil rights of provincial
citizens. As the Court stated, “it would be for the
Provinces, in the exercise of their power over the
solemnization of marriage, to legislate in a way
that protects the rights of religious officials while
providing for solemnization of same-sex
marriage.”17 The Court further noted that,
logically, the same reasoning would preclude the
compulsory use of sacred places for the celebra-
tion of such marriages and being compelled to
otherwise assist in the celebration of same-sex
marriages. Any law that compelled the practice of
religious rites contrary to religious beliefs could
not be justified under section 1 of the Charter.18

Protection of religious freedom is effectively
mandatory, but it is only the provinces that can
offer it; the rights and freedoms contained in the
Charter regulate the content of law, while the
division of legislative jurisdiction under the
Constitution Act, 1867 regulates the author.

Question four was added on 26 January
2004.”9 It asked whether restricting marriage to
opposite-sex couples is consistent with the
Charter. As noted, several courts had already said
it is not.20 The federal government chose to not
appeal those decisions. They chose, in other
words, to not find out what the Supreme Court of
Canada might say despite several perfect
opportunities to do so, and despite the advantages
of doing so in the context of a typical adversarial
forum. While it is possible the Supreme Court of
Canada may have denied leave in any of those
cases, it is highly unlikely given the nature of the
law at issue (federal common law) and that it was
on a subject (marriage) for which national
uniformity was desirable (it was allocated to the
federal government not the provincial ones in the

hid. at para. 55. The Court added its usual caution: “absent
exceptional circumstances which we cannot at present foresee.”
I say usual because it has taken to doing this in relation to s. 7
cases as well; see e.g., United States v. Burns, [2001] 1 S.C.R.
283 at para. 8, 2001 SCC 7, online: CanLil <http://www.
canlii.org/ca/cas/scc/2001/2001 scc7.html>.
Same Sex Reference, ibid. at paras. 56, 58.

See supra note 5.
2 See supra note 14.

(2005) 14:3 CONSTITUTIONAL FORUM

Constitution Act, 1867). So it matters that leave to
appeal was not even sought by the party (the

federal government) that lost these cases at the
lower levels of court.

The Supreme Court of Canada did not answer

question four because the Court felt the federal
strategy was Janus-faced. There are many reasons

for sending a reference, but it is usually because

the government needs the “advice” of the Court

and cannot otherwise obtain it in a thorough and
inclusive manner. Typically, a reference serves to

short-circuit and speed up the normal litigation
process. In the same-sex cases, however, the

opposite occurred. The underlying cases were not

appealed in a context where leave to appeal would
likely have been granted. Instead, thousands of

same-sex couples were married across Canada

(their marriage was legal in five provinces and one
territory at the date of the Supreme Court of

Canada’s opinion), 2 1 and the reference threatened
those marriages by inviting the highest Court to

reject the reasoning that had secured their legal
entitlement to marry. More significantly, counsel
on the Same-Sex Reference advised the Supreme

Court that the federal government was going to
proceed with the legislation extending the right to

marry to same-sex couples regardless of the

Court’s answer to the questions. Whether or not

the Court felt the federal government was trying to
deflect responsibility for the political issue to the

Court, it was certainly entitled to feel misused by

the federal government in being asked to answer

an essentially moot question. The Court refused to
answer on the logical basis that any advice it
might choose to provide could be in favour or

against the federal view of the matter (regarding

whether the Charter required that same-sex
couples have access to the institution of marriage).
As such, the advice might unfairly disrupt the

legal security that attached to those already

married under decisions that were not appealed,

and would not be followed if it departed from the

government’s policy to extend rights to same-sex
couples.2 2

21 Same-Sex Reference, supra note I at para. 65.
2 id. at para. 66.

FORUM CONSTITUTIONNEL (2005) 14:3

ANALYSIS

The Same-Sex Reference opinion is a

constitutional law professor’s dream case. It is a

short, clear, unanimous opinion of the highest

court in the land on the interpretation of the basic
constitutional documents of the country: the 1867

Constitution Act and the 1982 Charter of Rights

and Freedoms.

After reminding us of the basic dimensions of

federalism and its supporting doctrines (pith and

substance, incidental effects, exhaustiveness), the

Court reiterated the now-familiar proposition that
under a constitutional supremacy, rights are

intended to operate as a constraint on legislative

choices. Both the Constitution Act, 1867 and the
rights and freedoms contained in the Charter were

given their usual purposive interpretation. All

fairly standard stuff.23 The only new legal point in
the case is with respect to the Court’s
interpretation of its discretion to not answer a

reference question. The Court had previously

stated that it was not required to answer a non-

justiciable question simply because it came in the
form of a reference, and that it can properly (if

unusually) refuse to answer where that answer

would be incomplete or inaccurate because of a
problem with either the framing of the question or

the supporting information.2 4 In this case it added

a new basis for refusing to answer: if you are not

actually interested in hearing what we think, we
will not bother telling you.

In the course of its usual rejection of the framer’s intent as

governing constitutional interpretation, the Court noted that in

cases where it has referred to the framer’s intent, it is with

reference to a particular constitutional agreement as opposed to

a head of power. The former has to be correctly divined; the

latter has to be interpreted for the future (see ibid. at para. 30).

1 like, but am not completely convinced by, this distinction.

Agreements are behind every phrase in a constitution. I think
that a better distinction, and one I use to explain to my students
the divergence in case law on the issue of framer’s intent, is one
between constitutional provisions that create structural
institutions, and provisions that assign heads of power between
the two levels of government. Structural cases are those that
relate to federal courts, s. 96 appointment powers, the Senate,
denominational schools, etc. These need not be interpreted with
a view to the future as much as to maintaining expectations as
to what was intended by creating a certain framework within
which state power would then flow.
Ibid. at para. 10, citing as examples: ReLrence re Canada

Assistance Plan (British Columbia), [1991] 2 S.C.R. 525 at 545,

online: CanLll <http://www.canlii.org/ca/cas/scc/1991/

1991scc66.html>; Rejerence re Objection by Quebec to a

Resolution to Amend the Constitution, [1982] 2 S.C.R. 793 at

806; and Quebec Secession Reference, supra note 3 at paras.

26-30, 62-63.

This summer, while contemplating where to

place this case within my constitutional law

teaching materials, I realized that I cannot really
put it in a section with other gay and lesbian
constitutional cases because there are only a few
non-pithy sentences on same-sex rights. I think I
will end up putting the Same-Sex Reference right
at the beginning of my course materials,
immediately after lengthy excerpts from the

Quebec Secession Reference opinion. There are

many structural similarities between the two cases.
Both are the result of references; there were cries
of political foul play against the federal
government with respect to both questions;2 5 both

concern socially controversial and divisive
political subjects; and both deal with federalism
and rights, issues that form the bulk of what is

taught in a year long course on constitutional law.

I like beginning with the Quebec Secession
Reference because it is evocative and stirring. It is

the Court at its most passionate, elegant, and

elaborate. Even seasoned constitutional law
professors found many things that were new in the
case such as the four unwritten constitutional
principles that have apparently been there all

along and just newly articulated.2 6 It is heady,
meaty stuff. Some students are actually excited
about constitutional law, and all like to see that, as

future lawyers, they will be the ones that provide

the Court with arguments and interpretations of

what the law is and should be. If the Court finds
those claims persuasive, a lawyer can find her
analysis adopted. In this way, students understand
that they have a significant role to play: it is not
merely judges and legislators who create law in a
constitutional democracy.

Another fascinating aspect of the Quebec
Secession Reference is that students quickly adapt

to and adopt the loaded imagery of that decision. 2

See M. Andre Joli-Coeur, “Factum of the Intervener Amicus
Curiae” (1998) [unpublished, on file with the author]. In the
Quebec Secession Rejerence, the issue was the wording of the

question (whether Quebec could “unilaterally” secede from
Canada), whereas in the Same-Sex Reference, the issue was the
late addition of the fourth question.
These are federalism (Quebec Secession Rejerence, supra note

3 at paras. 55-60), democracy (at paras. 61-69),
constitutionalism and the rule of law (at paras. 70-78), and
protection of minorities (at paras. 79-82).
ibid. at paras. 49-52. Note the many metaphors at work
[emphasis added]:

What are those underlying principles? Our

Within a few classes, arguments invoking the
“lifeblood/foundation/architecture” metaphors

become familiar. But it takes much longer for
students to really grasp the difference between a

simplistic concept of democracy that says that

majority might makes right (rejected in Canada),
and a complex notion of a constitutional
democracy that intentionally and justly precludes
majorities from running roughshod over the rights
of minorities (reflected in the Canadian Constitu-
tion). I ask them to go back and reread the case at
the end of the academic year, after they have
learned many minority rights, to see if they now
understand what the Court meant by the injustice
of a conception of democracy that allows
majorities to dictate the rights, if any, of the

numerical minorities.

Constitution is primarily a written one, the
product of 131 years of evolution. Behind the

written word is an historical lineage stretching
back through the ages, which aids in the
consideration of the underlying constitutional
principles. These principles inform and
sustain the constitutional text: they are the
vital unstated assumptions upon which the
text is based….

Our Constitution has an internal architecture,
or what the majority of this Court in OPSEU
v. Ontario (Attorney General), [1987] 2

S.C.R. 2, at p. 57, called a “basic constitu-
tional structure”. The individual elements of
the Constitution are linked to the others, and
must be interpreted by reference to the
structure of the Constitution as a whole. As
we recently emphasized in the Provincial
Judges Reference Reference, certain under-

lying principles infuse our Constitution and
breathe life into it….

Although these underlying principles are not
explicitly made part of the Constitution by any
written provision, … it would be impossible
to conceive of our constitutional structure
without them. The principles dictate major
elements of the architecture of the
Constitution itself and are as such its
lifeblood.

The principles assist in the interpretation of
the text and the delineation of spheres of
jurisdiction, the scope of rights and
obligations, and the role of our political
institutions. Equally important, observance of
and respect for these principles is essential to
the ongoing process of constitutional
development and evolution of our
Constitution as a “living tree,” to invoke the
famous description in Edwards v. Attorney

General for Canada, [1930] A.C. 124 (P.C.),

atp. 136.

(2005) 14:3 CONSTITUTIONAL FORUM

An especially fascinating aspect of the Court’s

decision in the Quebec Secession Reference is that

despite the boldness and innovation in the case,
both the federal and Quebec governments saw it as

a victory. So the Same-Sex Reference should be a

perfect pair to the Quebec Secession Reference. Is

it not the perfect illustration of the principles

articulated in the latter case? But herein lies the
rub. The Same-Sex Reference is the Court at its

most dull and detached. Everyone came away with

less than they wanted and, in an odd way, no one
felt that they had “won.”2 The provincial

governments were told in no uncertain terms that
they simply cannot pass laws relating to access to

marriage because they have no power to pass laws

on the capacity to marry. The federal government
was told it could pass any law it wanted to relating

to marriage and capacity to marry, but it can

neither pass a law relating to the rights of those
empowered by the province to solemnize
marriages nor regulate non-marital relationships.

The interveners were told that all laws must

comply with the constitution; marriage may or
may not be “natural,”‘ 9 but in Canada, it has to be

constitutional. Same-sex marriage advocates were
told that the proposed law “flowed” from the
Charter,3 ” but not that the Charter compelled that

the law be proposed.

Notwithstanding the media attention and
national debate surrounding the case, the Same-

Sex Reference is arguably the least exciting

constitutional decision ever written. There is not a

single new metaphor. There is no conceptualiz-
ation of the issues or relationships at stake; it is all

straightforward application. In a word, it is boring.
Does that make it bad constitutional law? What do
“we” want from the Court in these high-profile

constitutional cases, and do we need what we

want?

In this comment I attempt to answer these

questions by exploring three related themes
generated by this case. First, I consider the terms
“natural” and “inherent” in constitutional law and

show how these concepts were used in this case,
asserting that the Court’s response was somewhat
problematic. Second, I ask where the content of

See e.g., Katherine Harding, “Alberta Plans to Fight Gay

Marriage” The Globe andMail (10 December 2004) A8.
21 See discussion beginning in the next section, below.
io Same-Sex Reference, supra note I at para. 43.

FORUM CONSTITUTIONNEL (2005) 14:3

rights comes from (constitutions? courts? laws?

individual acts of assertion?) in order to make a

third and concluding comment about whether our
expectations of constitutions and their interpreters

are reasonable.

1. WHAT IS NATURAL OR

CONSTITUTIONAL LAW?

INHERENT IN

The interveners argued that the definition of

marriage was inherently a union between two
members of the opposite sex. This argument

supported two claims. One, that the definition of
marriage eluded capture in law; its meaning

preceded the use of the term “marriage” in the
legal document of the constitution, and could not

be altered by it. Two, that while Canadian juris-

prudence has adopted a “living tree” approach,

when Lord Sankey first used that metaphor he
qualified it with the concept of “natural limits.”3 1

In other words, a progressive interpretation does

not licence any interpretation; you cannot make a

stone into a tree or a same-sex union into a
marriage.

The Court’s reaction to this argument was
equally two-fold. With respect to the first claim,

the Court explained that practices often look
inherent only because they are customary (a

conceptual critique), and then pointed to the
presence of opposite-sex marriage in Canada and

in other countries (a factual critique). With respect

to the second point, the Court stated that it is not

required to figure out the natural meaning of
concepts such as marriage in an abstract fashion;
rather, it is merely required to figure out whether

a proposed meaning is within the constitutional

head of power in issue. In reaching the conclusion

Speaking for the Privy Council in Edwards v. A ttorney-General

,for Canada, [1930] A.C. 124, [1930] I D.L.R. 98 (P.C.) [the

“Persons” case, cited to A.C.], Lord Sankey L.C. said at 136:

Their Lordships do not conceive it to be the duty of

this Board it is certainly not their desire to cut

down the provisions of the [B.N.A.] Act by a

narrow and technical construction, but rather to give
it a large and liberal interpretation so that the

Dominion to a great extent but within certain fixed

limits, may be mistress in her own house, as the

Provinces to a great extent, but within certain fixed

limits, are mistresses in theirs.

Some interveners emphasized that while Lord Sankey L.C.

envisioned our constitution as a “living tree” in the Persons

case, he specified that itwas “capable of growth and expansion

within its natural limits.”

that the intervener’s argument must fail, the Court
pointed to the fact of agreement on the proposition
that marriage means a union of two people, and
the fact of disagreement on whether those two
people must be opposite-sex. According to the
Court, the fact of disagreement indicates that
marriage is not “naturally” limited to opposite-sex
couples in its constitutional meaning. Next point.

Before turning to that next point, however, it
may be useful to point out what is wrong with this
reasoning. Two things immediately come to mind.
First, the Court seems to invoke the fact of
disagreement about the scope of marriage as the
basis for concluding that same-sex couples can be
within the meaning of marriage. But is this true?
Do we really think that as long as there is some
disagreement about what is within marriage that a
court will say anything goes? In defence of the
Court’s reasoning, one could point to the fact that
the Court did not say exactly that; indeed, the
Court seemed to say that whatever else marriage
meant, there was at least consensus that it meant
the voluntary union of two adults:

The natural limits argument can succeed
only if its proponents can identify an
objective core of meaning which defines
what is “natural” in relation to marriage.
Absent this, the argument is merely
tautological. The only objective core
which the interveners before us agree is
“natural” to marriage is that it is the
voluntary union of two people to the
exclusion of all others. Beyond this,
views diverge. We are faced with
competing opinions on what the natural
limits of marriage may be.32

So in other words, the natural limits of marriage
do not admit a third person. Now I might agree
that marriage is not a union of three people, but
my position is not based on popular opinion.
Instead, I would try to explain the good and bad
consequences of expanding marriage beyond two
people. In other words, neither the fact of dis-
agreement nor the fact of consensus is a terribly
powerful argument for or against anything.

32 Same-Sex Reference, supra note I at para. 27.

My second critique of this reasoning is that

the Court should simply have rejected the whole

idea of naturalness. True, it did not need to do that
in this case to respond to the intervener’s

submission,3 3 but it lost a golden opportunity to
make a point that really should be made in the

context of the whole marriage debate.

“Natural” and “inherent” are very powerful
concepts, but they are at least as difficult to argue

for as they are to argue against. The ancient
tradition of natural law and the undeniable
strategic value of being able to cloak a claim in its

gorgeous garb are factors that weigh in favour of

attempting to assert the naturalness of a concept.
But the natural rights emperor is not wearing any

clothes. The constitution did not emerge out of
nowhere, or from a transcendent power. Only

people can author the claim of naturalness, and
history confirms that it is always disputed. The

concept of “inherent” suffers the same fate. If
things change, then nothing is inherent. It must

then always be a conceptual error to claim
intellectual immunity for a concept or practice on

the basis of its “inherent quality.” If it is illogical
to assert that anything is inherent, what are we

doing by claiming it or allowing it to be claimed?

What do we lose by dropping naturalness and

inherency from constitutional discourse? Maybe
we would lose something like a sense of constitu-

tional patriotism. In the Quebec Secession
Reference the Court’s opinion is exciting, in part,

because of its explicit invocation of a progress
narrative: we constantly strive towards a more

perfect protection of the rights. That we failed so

Jhid. at paras. 28-29:

Lord Sankey L.C.’s reference to “natural
limits” did not impose an obligation to
determine, in the abstract and absolutely, the
core meaning of constitutional terms.
Consequently, it is not for the Court to

determine, in the abstract, what the natural
limits of marriage must be. Rather, the Court’s
role is to determine whether marriage as
defined in the Proposed Act falls within the
subject matter of s. 91(26).

In determining whether legislation falls within
a particular head of power, a progressive
interpretation of the head of power must be
adopted. The competing submissions before
us do not permit us to conclude that
“marriage” in s. 91(26) of the Constitution

Act, 1867, read expansively, excludes same-
sex marriage.

(2005) 14:3 CONSTITUTIONAL FORUM

many in the past is beyond dispute. That we

improve is equally beyond dispute. But the path is

clear, if occasionally blocked, by normative errors
that are revealed by history.34 However, I believe
we can have constitutional narratives that are
powerful and useful without having to assert that

they are so because they reflect inherent truths.
The Supreme Court of Canada has itself
acknowledged that “[n]o one has a monopoly on

truth, and our system is predicated on the faith that

in the marketplace of ideas, the best solutions to
public problems will rise to the top.”3 5

The logic of inherency is appealing but
dangerous: fine if you (or your group identifi-
cation) are in, dreadful if you are out. Perhaps a
better question is not whether rights are inherently
one thing or another, but rather what is the source

of their content?

See Quebec Secession Reference, supra note 3 at para. 81

The concern of our courts and governments to
protect minorities has been prominent in

recent years, particularly following the enact-
ment of the Charter. Undoubtedly, one of the

key considerations motivating the enactment
of the Charter, and the process of constitu-
tional judicial review that it entails, is the
protection of minorities. However, it should

not be forgotten that the protection ofiminority
rights had a long history before the enactment
of the Charter. Indeed, the protection of
minority rights was clearly an essential con-

sideration in the design of our constitutional
structure even at the time of Confeder-
ation: Senate Reference, [Reference re

Authority of Parliament in relation to the

Upper House, [1980] 1 S.C.R. 54] at

p.71. Although Canada’s record of upholding
the rights of minorities is not a spotless one,
that goal is one towards which Canadians
have been striving since Confederation, and
the process has not been without success-
es. The principle of protecting minority rights
continues to exercise influence in the opera-
tion and interpretation of our Constitution.

hid. at para. 68. Aboriginal rights have been recognized as
inherent by the Supreme Court of Canada in Haida Nation v.
British Columbia (Ministry of Forests), [2004] 3 S.C.R. 511,

2004 SCC 73 at para. 26, online: CanLl <http://www.canlii.
org/ca/cas/scc/2004/2004scc73.html>. My analysis could be
interpreted as threatening the integrity of that positive

development. I think there is always a potential problem with
“inherent” insofar as it tends to hide the political and social
context for the use of the term in relation to particular legal
claims. That is not true, however, with respect to aboriginal
claims: in the context of Canadian legal history, ironically, the
term “inherent’is functioning to reveal the fact that aboriginal
communities have not been protected by the Canadian state.

FORUM CONSTITUTIONNEL (2005) 14:3

2. WHERE DOES THE CONTENT OF RIGHTS COME
FROM?

In a constitutional democracy, it is common
ground that the judicial branch must be
independent of the executive and legislative

branches. Without that independence, judges
would be afraid to hold the state accountable to
the public and require the state to point to a legal
source of power for all actions it takes. The

separation of powers can be stark or it can be
muted, but obviously no constitutional democracy

worthy of the label would collapse the branches
between the government and the judiciary.

In Canada, the separation is not strict but it is

certainly present. A very strict concept would pre-
clude judges ever acting in an executive capacity,
and it would preclude executive servants acting in
a judicial capacity. Some very deeply entrenched
features of the Canadian legal system are radically
inconsistent with a strict separation of powers and

the reference procedure is an obvious candidate
for interrogation. When a court is asked to answer
reference questions, it does so as a lawyer

advising a client. The lawyer is the court and the

client is the executive that sends the reference.
This is why the form of the answer is called an
opinion, and not a judgment or a decision. 36 This
is also why the Supreme Court of Canada insists

that while it is duty-bound to answer a properly
framed question, it has the discretion to decline to

answer questions that are not adequately supported

by facts or that are posed in a manner that
providing an answer would be misleading.3 7

Finally, the client/executive writes the questions,

and assuming they meet the minimum conditions
of coherence and are supported by necessary
factual context, the Court will answer them.

The whole concept of a reference is tricky and hard to defend
in some ways. It basically converts the government into a client
and a court into a legal advisor; that is why there is no
“judgment” or “decision.” Answers in a reference are the same
as any answers in a legal opinion. The difference is that a client
may well ignore legal advice, preferring instead to run the risk
of not getting caught doing something contrary to law. A
government, on the other hand, will always feel bound to follow
the legal advice given by the Supreme Court of Canada in a
reference opinion: it would be pointless for it to not do so.
These are legitimate, if not familiar, objections. While a lawyer
would go back to a client to get better instructions before
providing an opinion, the Court obviously cannot do so. It is
therefore safer to not answer the question at all in those
circumstances.

Or not.

The Supreme Court exercised its discretion to
not answer the controversial fourth question,

which asked:

Is the opposite sex requirement for
marriage for civil purposes as established

by the common law and as set out for
Quebec in section 5 of the Federal Law –
Civil Law Harmonization Act, No.]

consistent with the Canadian Charter of
Rights and Freedoms? If not, in what

particular or what particulars and to what

extent?
38

In explaining this refusal, the Court appears to be

a little disingenuous. It says that it must approach

the issue as if either a yes or no were possible,

when everyone who follows the Court knows full

well that this Court has only had one view on laws
that discriminate against gays and lesbians: they

have no place in a modern constitutional
democracy. 39 Thus it is here that some say the

Court failed: it declined to endorse the federal
position that the Charter compelled recognition of

same-sex marriage. The Court could have written
stirring passages that gave the federal government

moral and legal cover for its new law, taking some

of the pressure off the government in the process.
This would have been bold, but when boldness

was called for, the Court was timid.

I understand and have some sympathy for this
view. It comes from a need to see the Court and its

justices as the Herculean 4 1 force of normativity.
Often the Court is that kind of moral leader. In the

Quebec Secession Reference the Court exercised
intellectual leadership and careful political

acumen. In the early same-sex cases, the Court
quickly explained that sexual orientation is like

religion and needs to be treated in the same

Supra note 8.

News Release, “Open Letter to The Hon. Stephen Harper from
Law Professors Regarding Same-Sex Marriage” (25 January
2005). The author and 133 other professors of constitutional
law signed this letter.
I refer here of course to Ronald Dworkin’s famous explication
of the role of the judge in interpreting the constitution. See
Ronald Dworkin, Law’s Empire (Cambridge: Belknap, 1986),
in which Judge Hercules has superhuman intellectual power and
understands judging constitutional cases as requiring an ethical
commitment to principled interpretation of the text, as opposed
to merely following precedents or discerning what others think
is correct.

manner: it is not a lifestyle as much as an aspect of
being that could only be changed at an

unacceptable personal cost that society has no
basis to demand of equally respected members of

its community.4 1 In Sauv&, the Court granted

voting rights to prisoners, and in so doing,

provided an extraordinary illustration of the

Court’s commitment to the principle of protecting
minorities against the decisions of a majority that

are driven by a judgment of moral worth. 4 2 So

what gives with the Same-Sex Reference?

I do not think the Court was engaged in an
infantile taunting game with the state. While it

may be possible to characterize the Court’s
responses as “You cannot make me” (the state

could not actually make them answer and still
claim to be committed to a separation of powers),

this characterization is hard to square with the
previous case law in which the Court compelled

the state to stop discriminating against gays and
lesbians.4 3 I think that the Supreme Court of

Canada meant what it said in the Quebec
Secession Reference and SauvL In the Quebec

Secession Reference, it explained that constitu-
tionalism is fundamentally about protecting
minorities from majorities:

Canadians have never accepted that ours

is a system of simple majority rule. Our
principle of democracy, taken in con-

junction with the other constitutional
principles discussed here, is richer.

Constitutional government is necessarily
predicated on the idea that the political

representatives of the people of a

province have the capacity and the power

to commit the province to be bound into
the future by the constitutional rules being

adopted. These rules are “binding” not in
the sense of frustrating the will of a

majority of a province, but as defining the
majority which must be consulted in order

to alter the fundamental balances of

political power (including the spheres of

autonomy guaranteed by the principle of
federalism), individual rights, and
minority rights in our society. Of course,

those constitutional rules are themselves

Egan, supra note 2 at para. 5.
42 Sauve, supra note 3.
43 See generally, Vriend and Egan, supra note 2.

(2005) 14:3 CONSTITUTIONAL FORUM

amenable to amendment, but only through
a process of negotiation which ensures
that there is an opportunity for the
constitutionally defined rights of all the
parties to be respected and reconciled.

In this way, our belief in democracy may
be harmonized with our belief in
constitutionalism. Constitutional
amendment often requires some form of
substantial consensus precisely because
the content of the underlying principles of
our Constitution demand it. By requiring
broad support in the form of an “enhanced
majority” to achieve constitutional
change, the Constitution ensures that
minority interests must be addressed
before proposed changes which would
affect them may be enacted.”

In Sauvw over a wounded-sounding dissent, the
majority stuck with this theory about constitu-
tionalism, insisting that the state could not deny
prisoners the right to vote without undermining its
own legitimacy. 45 The Supreme Court of Canada
does therefore see itself as the bulwark against
regressive and simple-minded majoritarianism, but
it also does not think that it is the only source of
rights and justice in Canada. And I think this is a
welcome and wise point, which takes me to the
final comment I want to make about this case.

3. Do WE HAVE REASONABLE EXPECTATIONS
ABOUT CONSTITUTIONS AND THEIR

INTERPRETERS?

All of us – citizens, lawyers, professors, and
judges – are always interpreting the Constitution.
But we look to courts as the guarantor of rights.

44 Quebec Secession Reference, supra note 3 at paras. 76-77.
41 Sauvc, supra note 3 at para. 58:

Denial of the right to vote to penitentiary

inmates undermines the legitimacy of

government, the effectiveness ofgovernment,
and the rule of law. it curtails the personal

rights of the citizen to political expression and

participation in the political life of his or her

country. It countermands the message that

everyone is equally worthy and entitled to

respect under the law that everybody counts

…. It is more likely to erode respect for the

rule of law than to enhance it, and more likely

to undermine sentencing goals of deterrence
and rehabilitation than to further them.

FORUM CONSTITUTIONNEL (2005) 14:3

We do this for good reason: all the talk of
dialogue does not change the hard fact that, absent
the use of a section 33 override, the court can stop
the conversation if and when it wants, and can do
so over the objection of the legislatures affected
by its decisions. 46 But it is a mistake to look only
at courts, and a grievous error to think the security
of rights rests in the text of a constitution. Many of
the positive changes in the lives of gays and
lesbians are the result of great court cases, 47 but
many are also the result of legislative reform,48

and even more the result of individual and group
decisions to simply assert equal moral worth
everywhere, without apology and with pride. My
point is that rights do not exist in constitutions, or
prior to them really. They exist in people and have
meaning only if people live in a manner that
affirms them, every day. Yes, we need courts,
especially to guard against excessive zeal on the
part of majorities willing to sacrifice the rights of
the few in order to achieve some socially desirable
good (such as the case when we lock up those only
suspected of terrorist acts to generate the feeling
of collective security). But we need people who
claim the rights as their own even more. In the
long run, rights are lost for a variety of reasons.
One main way is when courts refuse to acknow-
ledge a particular claim, 49 and another is when the
particular right being claimed seems to have no
purchase on society: when, for example, it cannot
bring the necessary social attention to reveal the
disadvantaged state of vulnerable people. It may

6 See generally, Chief Justice Catherine Fraser, “Constitutional

Dialogues Between Courts and Legislatures: Can We Talk?”
(2005) 14:3 Constitutional Forum constitutionnel 7; and Mr.
Justice Michel Bastarache, “Courts and Legislatures” (2005)
14:3 Constitutional Forum constitutionnel 1.

47 See e.g., Egan and Vriend, supra note 2. See also M. v. H.

[1999] 2 S.C.R. 3, online: CanLil <http://www.canlii.org/ca/
cas/scc/1999/1999scc28.html>. Once the Supreme Court of
Canada held in Egan and Vriend that it was necessary to see
sexual orientation like other grounds of unfair distinction
between people, it became necessary for the lawmakers to
explain why it is legitimate to exclude gays and lesbians from
any social practice.

4 See e g” Canadian Human Rights Act, R.S’C. 1985, c. H-6, s.

3. Also recall the famous statement by Prime Minister Trudeau

on 21 December 1967: “There’s no place for the state in the

bedrooms of the nation,” referring to the upcoming
decriminalization of “homosexual acts.” See “Trudeau’s

Omnibus Bill: Challenging Canadian Taboos,” online: CBC

Archives <http://archives.cbc.ca/IDD- 1-73-538/politics

economy/omnibus/>.
41 See e.g., Gosselin v. Quebec (Attorney General), [2002] 4

S.C.R. 429, 2002 SCC 84, online: CanLil <http://www.canlii.

org/ca/cas/scc/2002/2002scc84.html>, where the Court rejected

a claim for constitutional protection of basic social security
entitlements.

well be that rights have a limited lifespan and that,
in the future, a different concept will have more
power to effect the kind of social and political
changes required for a world that is more
respectful of the needs and aspirations of each
person. For now, we have rights. And while they
may be mythical, rights are a myth that many in
the world wish they had and for which we in
Canada are fortunate.

It does not bother me then that the Court
stepped out of the limelight and let the same-sex
couples play the starring role by referring to the
unappealed decisions. In following this course, the
Court pushed the government to figure out a better
and more ennobling defence for its law, rather
than allowing it to claim that it was simply
following the orders of the judiciary. Perhaps the
legislatures should become comfortable with
saying that they are passing the law because they
ought to do so on principle. And sometimes for a
Court to be Herculean means to shut up. No doubt
the Court would strike down a law that, like laws
restricting prisoners’ voting rights, appealed to the
capacity of a majority to pass judgment about the
moral worth of gays and lesbians by denying them
access to a basic social institution. But the
Supreme Court of Canada was not required to
defend gays and lesbians in this case it has been in
so many others, and the federal government
properly decided to stop fighting against, and
started arguing for, those rights.5 0 The Court was
required to defend the division of legislative
authority between the two levels of government
and it did that in unambiguous terms.

This could not be made clearer than in the factum filed by
Professor Hogg and Michael H. Morris on behalf of the federal
government. See PeterW. Hogg & MichaelH. Morris, “Factum
of the Attorney General of Canada,” online: Justice Canada
<h ttp ://www.justice.gc.ca/en/dept/pub/factuin/factuin.html>,
and Peter W. Hogg & Michael H. Morris, “Supplementary
Factum of the Attorney General of Canada,” online: Justice
Canada <http://www.justice.gc.ca/eii/dept/pub/factum/supp/
body.htnl>.

CONCLUSION

In an early passage in the Same-Sex Reference
the Court explains that with progressive or liberal
interpretation of the constitution by courts, “our
Constitution succeeds in its ambitious enterprise,
that of structuring the exercise of power by the
organs of the state in times vastly different from
those in which it was crafted.” 1 It is a difficult
project, and not one that is error-free. But this
judgment is largely just that: a calm, even, and
measured response that walks away from a social
debate of great heat and little light. At the end of
the day, the holding in the case is the obvious one:
the federal government, with its legislative power
over marriage, is free to act on principle and no
longer deny access to the institution of marriage
simply because the two people willing to make a
public promise to love one another happen to be of
the same sex. The only problem is that because it
is so obvious, I may not bother to include the case
in the course material at all.

Ronalda Murphy
Associate Professor
Faculty of Law, Dalhousie University
Ronalda.Murphy@ DaI.Ca

5 Supra note I at para. 23.

(2005) 14:3 CONSTITUTIONAL FORUM

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Citations:

Bluebook 21st ed.

Jacqueline Humphreys, The Civil Partnership Act 2004, Same-Sex Marriage and the
Church of England, 8 ECC LJ 289 (2006).

ALWD 6th ed.
Humphreys, J. ., The civil partnership act 2004, same-sex marriage and the church of
england, 8(38) Ecc LJ 289 (2006).

APA 7th ed.
Humphreys, J. (2006). The civil partnership act 2004, same-sex marriage and the
church of england. Ecclesiastical Law Journal, 8(38), 289-306.

Chicago 7th ed.
Jacqueline Humphreys, “The Civil Partnership Act 2004, Same-Sex Marriage and the
Church of England,” Ecclesiastical Law Journal 8, no. 38 (January 2006): 289-306

McGill Guide 9th ed.
Jacqueline Humphreys, “The Civil Partnership Act 2004, Same-Sex Marriage and the
Church of England” (2006) 8:38 Ecc LJ 289.

AGLC 4th ed.
Jacqueline Humphreys, ‘The Civil Partnership Act 2004, Same-Sex Marriage and the
Church of England’ (2006) 8(38) Ecclesiastical Law Journal 289.

MLA 8th ed.
Humphreys, Jacqueline. “The Civil Partnership Act 2004, Same-Sex Marriage and the
Church of England.” Ecclesiastical Law Journal, vol. 8, no. 38, January 2006, p.
289-306. HeinOnline.

OSCOLA 4th ed.
Jacqueline Humphreys, ‘The Civil Partnership Act 2004, Same-Sex Marriage and the
Church of England’ (2006) 8 Ecc LJ 289

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Copyright Information

ECCLESIASTICAL LAW JOURNAL

THE CIVIL PARTNERSHIP ACT 2004,
SAME-SEX MARRIAGE

AND THE CHURCH OF ENGLAND

JACQUELINE HUMPHREYS

Barrister

The Civil Partnership Act 2004 enables same-sex couples to enter into a
status that provides very many of the same rights and responsibilities that
married couples have in respect to each other and the wider community.
This paper first considers the extent of the legal similarities between civil
partnerships and marriage; that is to what extent civil partnerships are
same-sex marriage’ in practical effect. Secondly it considers to what extent
the conceptual understanding of civil partnerships within the Act reflects
the current conception of marriage within English law; that is the extent
to which civil partnerships are ‘same-sex marriage’ in theory. Thirdly, and

finally, some of the specific dilemmas for the Church of England in the light
of this are considered’

INTRODUCTION
The Civil Partnership Act 2004 (c 33) came into force on 5 December
2005 and already many couples have ‘tied the knot’ at a ceremony
before their local registrar, having booked their time-slots as soon as the
commencement date of the legislation was announced. For some, as with
many civil marriages, it was a simple affair to obtain legal protection for a
long-standing relationship. But for others the fancy clothes, flowers, guests,
reception, and honeymoon show that it was being treated by those involved
as though it were a ‘conventional’ wedding.

It is clear that, culturally, civil partnerships are being seen as gay marriages
The ‘Modern Life Exhibition 2005’ in London in November was designed
to give gay couples advice and ideas on how to plan their ‘weddings’. This
included legal and financial advice. An internet search under the term ‘gay
marriage’ brings up links to any number of businesses looking to provide
venues, photographers, flowers, etc to help same-sex couples plan their
perfect ‘wedding day’.

Prior to the introduction of the Civil Partnership Bill, the government
was at pains to point out that civil partnership is not ‘gay marriage’. For
example, in the published responses to the white paper consultation the
Department of Trade and Industry stated:

‘ This is a revised and updated version of a paper first delivered on 16 June 2004
as a contribution to the 2004 series of London Lectures of the Ecclesiastical Law
Society and in a further revision at the Greenbelt Festival on 29 August 2005.

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THE CIVIL PARTNERSHIP ACT

The Government has no plans to allow same-sex couples to marry.
The proposals are for an entirely new legal status of civil partnership.
Same-sex partnership registration schemes already operate alongside
opposite-sex marriage in some other countries.

In an answer to frequently asked questions on the website of the Women
and Equality Unit of the DTI the following statement appears:

Civil Partnership is a completely new legal relationship, exclusively for
same-sex couples, distinct from marriage.

However, what I shall explore below is the extent to which, despite such
protestations to the contrary, it makes legal sense to regard civil partnerships
as equivalent to gay marriage.

THE LEGAL PRACTICALITIES OF MARRIAGE AND CIVIL
PARTNERSHIPS
Part 2 of the Civil Partnership Act 2004 sets out the procedure for entering
a civil partnership in England and Wales.2 Notice must be given of an
intention to form a civil partnership,’ which notice must be publicised,’
and the partnership cannot be entered into until fifteen days after the
notice has been given.5 The partnership must be entered into within twelve
months of notice being given.’ Provision is made for special procedures for
people who are housebound, detained,’ serving abroad as a member of Her
Majesty’s forces or where one party lives in a different part of the United
Kingdom to the other.’ These preliminary provisions are broadly the same
as for civil marriage under a superintendent registrar’s certificate.10

The partnership itself is entered into by signing the civil partnership
document at the invitation of and in the presence of a civil partnership
registrar and in the presence of each other and two witnesses.” This is
different to marriage which is entered into by the parties speaking prescribed
words in the presence of a registrar and two witnesses. The signing of
the marriage register is evidence of the marriage entered into verbally.

2 The Civil Partnership Act 2004, Part 2, comprises ss 2-84. Similar arrangements
are also provided for Scotland and Northern Ireland in Part 3 (ss 85-136) and Part
4 (ss 137-209).
3 Ibid s 8.
4 1bid s 10.
Ibid ss 11, 17(1). In exceptional circumstances the Registrar General may shorten
the waiting period under s 12.
6 Ibid s 17(3), (4).
7 See ibid s 18.
‘See ibid s 19.
9See ibid s 20.
“Amendments to the Marriage Act 1949 by the Immigration and Asylum Act 1999
(c 33), s 169(1), Sch 14, para 3, reduce the previous waiting period of 21 days to 15
days, subject to the power of the Registrar General to reduce this in exceptional
cases.
” Civil Partnership Act 2004 s 2(1).

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ECCLESIASTICAL LAW JOURNAL

However the civil partnership document is not the same thing as the civil
partnership register which must also be completed by the registrar after the
civil partnership has been entered intol2 in the same way as the marriage
registrar must complete the marriage register as soon as practicable after a
marriage takes place.

A civil partnership may not be entered into on religious premises. No
religious service may be used while the civil partnership registrar is officiating
at the signing of a civil partnership document.” Similarly, marriages that
take place in register offices or non-religious ‘approved premises’ are also
prohibited from including any religious service.14

Like marriage, a civil partnership ends only on death, dissolution or
annulment.” When dissolution, nullity and presumption of death orders
are made they are at first ‘conditional’ before being made final no less than
six weeks later.'” This mirrors decree nisi and decree absolute procedure
in respect of marriage. Like divorce, no order for dissolution can be made
in the first year of the civil partnership” and when an application for
dissolution is made a certificate is required confirming that the applicant’s
solicitor has considered the possibility of reconciliation. The court must
consider the interests of any children of the family and can make Children
Act orders or in exceptional circumstances refuse to make a conditional
order final where the welfare of the children requires that.9 The court may
also make a separation order, which functions in the same way as a decree
of judicial separation in respect of marriage.2 0

The provision for financial relief for civil partners following dissolution,
nullity, or separation orders is set out in Schedule 5 of the 2004 Act
and mirrors the matrimonial ancillary relief jurisdiction in Part 2 of the
Matrimonial Causes Act 1973. In particular the court may make the
same types of orders for financial provision and property adjustment
including pension sharing and pension attachment as can be made on
divorce, declaration of nullity of marriage or judicial separation unless
these remedies are limited in the specified actions.2′ The matters that a
court must take into account when deciding what financial orders are fair
and appropriate on the termination of a civil partnership are the same as
when considering the breakdown of a marriage.2 2 The very limited legal

“Ibid s 2(4 ).
‘ Ibid s 2(5).
1Marriage Act 1949 (12, 13 & 14 Geo 6, c 76), s 45(2), and ss 45A(4), 46B(4) (added
respectively by the Marriage Act 1983 s 1(7), Sch 1, para 11, and by s 1(2)).
” Civil Partnership Act 2004, s 1(3).
‘6 Ibid ss 37(2), 38(1).
‘Ibid s 41(1).
‘Ibid s 42.
“Ibid.
20 Ibid ss 37(1)(d), 56, 57.
21 See the Civil Partnership Act 2004, s 72(1), Sch 5, paras 2(1), 6(1), 10(1), 15(1).
The Matrimonial Causes Act 1973 (c 18), Part II, comprises ss 21-40A.
22 See the Civil Partnership Act 2004, Sch 5, para 21.

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THE CIVIL PARTNERSHIP ACT

consequences of terminating an engagement to be married are replicated
for persons who terminate an agreement to enter into a civil partnership
agreement.23

The 2004 Act provides that civil partners are to be treated by law in the same
way as married couples in respect to property disputes between them,24

actions in tort between them,25 insurance law, 2 6 social security law 27 and
the law relating to wills, administration of estates and family provision.2 1
For example one whose civil partner has died will be in the same position
as a widow or widower with regard to the law of intestacy and the right to
claim against a deceased’s estate for provision out of it. The basis of and
level of provision is expressed in the same terms as for widows/widowers.
Time will show whether the courts exercising this discretionary jurisdiction
in fact treat bereaved civil partners in the same way as bereaved spouses.
Civil partners are to be treated in the same way as spouses in relation to
housing and tenancies,2 9 family homes and domestic violence,3 0 and fatal
accident claims3′ and cannot be discriminated against in employment by
reason of being a civil partner.2 People are also subject to penalties for
offences and perjury in connection with entering into a civil partnership
in the same way as in connection with entering marriage,” although no
equivalent criminal offence to bigamy has been created.

The 2004 Act did not make provision to bring the taxation of civil partners
completely into line with that for marriage. However, the government
announced in the Budget on 16 March 2005 that it would legislate to
ensure that civil partners will be treated the same as married couples for
tax purposes and this was set out in section 103 of the Finance Act 2005.
At the time of writing the Department of Trade and Industry was planning
for the necessary orders to be laid before the House of Commons to make
these amendments prior to 5 December 2005.

The Civil Partnership Act 2004 gives the Minister power to make changes
to enactments relating to pensions, including Church legislation.34 The
Department for Work and Pensions has recently made amendments to
the contracting-out rules to ensure that pension schemes provide survivor
benefits for civil partners on the basis of deceased members’ rights accrued

23See ibid ss 73, 74.
24 See ibid ss 65-68.
25 See ibid s 69.
2 6 See ibid s 70.
27 See ibid s 254, Sch 24.
2 Ibid s 71.
29 See ibid s 81, Sch 8.
so See ibid s 82, Sch 9, amending the Family Law Act 1996 (c 27), Pt 4 (ss 30-63),
and related enactments.
31 See the Civil Partnership Act 2004, s 83, amending the Fatal Accidents Act 1976
(c 30).
32 See the Civil Partnership Act 2004, s 251, substituting the Sex Discrimination Act
1975 (c 65), s 3.
3
1See the Civil Partnership Act 2004, ss 31-33.

34 See the Civil Partnership Act 2004, s 255.

292

ECCLESIASTICAL LAW JOURNAL

from 6 April 1988, and thus to treat them on a par with widows/widowers.
Whilst some small differences remain, particularly with regard to the mode
of entry into a civil partnership or marriage, overall, in the vast majority
of situations the legal consequences of civil partnerships and marriage
are identical. It therefore makes sense to speak of civil partnerships as
being the practical equivalent of marriage and therefore in that sense it is
meaningful to refer to these partnerships as ‘gay marriages’.

CONCEPTUAL UNDERSTANDINGS OF MARRIAGE AND CIVIL
PARTNERSHIPS WITHIN THE LAW

To determine the conceptual understandings contained within a legal
structure is not a straightforward business. On the one hand there are the
official pronouncements as to what is intended by the legislation, and on
the other there are the reasonable implications that can be drawn from the
practical provision that is in fact made. There can be dissonance between
the official pronouncements and the actual effect of the legislation. There
can of course also be more than one conceptual understanding that can
be drawn from the actual provisions of the legislation, and part of the
lawyers’ task is to determine which of those should be preferred where a
dispute leads to a different practical outcome.

Whether or not civil partnerships are conceptually the same as marriage
is at the heart of much of the controversy about this legislation. Some
of those who see the two statuses as conceptually alike welcome this and
wish the law to go further and actually use the language of ‘marriage’ to
describe civil partnerships in law, as is happening in popular discussion
and in other European jurisdictions. Others see the statuses as conceptually
alike and for that reason opposed the introduction of the Civil Partnership
Act 2004 for fear of ‘undermining marriage’. Of those who see the statuses
as conceptually distinct, some could not see why, if they are not the same
as marriage, they could not also be open to opposite sex couples. An
attempted amendment in the House of Lords, introduced by Baroness
O’Cathain and supported by some of the bishops in the Church of England
wanted to make the differences between marriage and civil partnership
more pronounced by attempting to open up the latter to other family
members-for example two sisters who wanted to enter a civil partnership
for tax planning reasons. Whilst initially successful in the House of Lords,
the government rejected this amendment on the basis that the collection
of rights and responsibilities provided by the Act were suitable for chosen
life partners and would not be appropriate for family members generally.
Indeed it is hard to see why it would be a good thing for sisters who have
entered a civil partnership for tax reasons to have to go through a process
identical to divorce in order subsequently to marry.

Below various aspects of a traditional Christian conception of marriage are
identified, and consideration given to what extent these understandings are
shown forth in the present English law of marriage and to what extent they
are also present with respect to civil partnerships as created by the 2004

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Act. A Christian understanding of marriage includes the expectations that
it is a voluntarily entered, permanent, faithful, sexual relationship between
one man and one woman. Marriage should also be mutually supportive
and is regarded as the best context for the conception and nurturing of
children.

Voluntary

A lack of valid consent to enter a marriage by either party, whether
through duress, mistake, unsoundness of mind or otherwise makes that
marriage voidable at the suit of one of the parties to the marriage.” In the
same way a lack of valid consent makes a civil partnership voidable at the
suit of one of the parties to the partnership.” In both cases a decree of
nullity will not be granted after three years of marriage or civil partnership
(save where leave is given) or where a party knew that it was open to him to
obtain a nullity order/decree of nullity and conducted himself in relation
to the other party so as to lead that other party reasonably to believe that
he would not seek to do so and it would be unjust to grant the nullity
order/decree.” Mental health disorders suffered at the time of entering
the marriage or civil partnership can also provide grounds for obtaining a
nullity order/decree.”

This concept of marriage or civil partnership as something that is
entered voluntarily also lies behind some of the complex legal difficulties
surrounding the issue of ‘cohabitee’s rights’, that is, in determining what
of the social and legal benefits of marriage (or civil partnership) should
be provided to cohabiting couples in relationships where they could have
married (or entered a civil partnership) but chose not to.

Permanent

The idea of a valid marriage being permanent in the sense of utterly
incapable of termination save by death has not been part of English law
since the introduction of parliamentary divorce in the seventeenth century.
As only a very small number39 of very wealthy people have obtained a
divorce by Act of Parliament in the past 400 years, the practical reality
for most people was that a valid marriage was effectively incapable of
termination save by death until the introduction of judicial divorce by the
Matrimonial Causes Act 1857. However, going back at least until mediaeval
times divorce a mensa et thoro, roughly equivalent to the modern concept
of judicial separation, has always been a possibility.

Modern divorce law regards marriage as permanent in the sense of
being indeterminate. That is, it cannot come to an end other than by the
specific judicial action of granting a divorce on the application of one of

” Matrimonial Causes Act 1973, s 12(c).
6Civil Partnership Act 2004, s 50(1)(a).
1 Matrimonial Causes Act 1973, s 13(1); Civil Partnership Act 2004, s 51.
“8Matrimonial Causes Act 1973, s 12(d); Civil Partnership Act 2004, s 50(1)(b).
11317 couples.

294

ECCLESIASTICAL LAW JOURNAL

the parties to the marriage on the grounds of ‘irretrievable breakdown’
of the marriage. Irretrievable breakdown must be proved by at least
one of five specific facts: adultery, ‘unreasonable behaviour’, two years’
desertion, two years’ separation plus consent or five years’ separation.4 0

Although the special procedure for divorce means in practical terms that
this is a largely administrative process where it is consensual, there is not
divorce on demand. District judges can and do reject petitions that do
not sufficiently prove any of the five facts and the Queen’s Proctor can
intervene in proceedings where it is appropriate to do so, to seek to prevent
a divorce taking place.

The provisions for obtaining an order of dissolution of civil partnership,
and the grounds for obtaining it are identical to the divorce provisions
save for the absence of adultery as a ground.4′ Parties to a civil partnership
may not end the partnership on demand any more than a married couple
can obtain divorce on demand. Further, the ongoing obligations with
regard to financial support after divorce or dissolution of civil partnership
recognise to some extent that some practical aspects of a marriage or civil
partnership do not necessarily stop upon divorce.

The understanding that civil partnerships are intended to be permanent,
at least in the sense of being indeterminate, can be seen in sections 212
to 218 of the 2004 Act, dealing with the circumstances in which overseas
relationships will be treated by English law as being a civil partnership.
These include not only the specified relationships set out in Schedule 20 of
the Act, for example a German Lebenspartnerschaft or a Belgian same-sex
marriage but also other partnerships registered abroad under the law of
another country, provided that certain conditions are met, including the
condition that the relationship registered is of ‘indeterminate duration’.42

The desirability of discouraging the termination of a marriage can be seen,
for example, in the provision requiring the petitioner for a divorce to certify
whether he or she has considered the possibility of reconciliation. This
provision is duplicated in respect of civil partnerships. In the same way
that no petition for divorce can be presented in the first year of marriage,
no application for an order dissolving a civil partnership can be applied for
within the first year of the civil partnership. The fact that much provision
is made for the surviving civil partner on the death of the other partner
shows that it is envisaged that the partners, like spouses, will for the most
part stay together for their whole lives.

Faithful

The expectation that the parties to a marriage will be sexually faithful to
each other is clear from the fact that adultery is one of the grounds for

40 See the Matrimonial Causes Act 1973, s 1(2).
41 Adultery is considered further below under the subheading ‘Faithful’. Even
the provision for the intervention of the Queen’s Proctor is replicated in the Civil
Partnership Act 2004: see s 39.
42Ibid s 214(b).

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THE CIVIL PARTNERSHIP ACT

divorce. Adultery, however, has a very specific, technical definition that is
essentially heterosexual. It requires ‘some penetration of the female organ
by the male organ’.4 3 For this reason adultery is not included as one of
the grounds for the dissolution of a civil partnership. No alternative form
of words, whether a general one of ‘sexual infidelity’ or a specific list of
specific sexual practices with someone other than the civil partner, takes
the place of adultery.

This makes it less obvious that sexual fidelity is presumed to be a
characteristic of civil partnerships. The governmental response to this
point, raised as part of the responses to the white paper, was that:

Adultery has a specific meaning within the context of heterosexual
relationships and it would not be possible nor desirable to read this
across to same-sex civil partnerships. The conduct of a civil partner
who is sexually unfaithful is as much a form of behaviour as any other.
Whether it amounted to unreasonable behaviour on which dissolution
proceedings could be grounded would be a matter for individual
dissolution proceedings.

In a divorce petition, other forms of sexual misconduct or infidelity falling
short of the precise definition of adultery must be included within an
‘unreasonable behaviour’ petition. In practice, the phrase ‘inappropriate
association’ is often used and this can be the basis of a successful behaviour
petition. Therefore, provided that the district judges who consider
applications for an order for dissolution of a civil partnership regard the
sexual infidelity of the respondent as amounting to sufficient grounds
for such dissolution under the category of ‘unreasonable behaviour’, an
expectation of sexual fidelity can be protected.

The intended exclusivity of relationship within a civil partnership can
however reasonably be inferred to some extent from the monogamous
character of the relationship which will be considered below. Nevertheless,
there is a difference between a bigamous marriage and an adulterous affair
within the heterosexual context, which distinction can be applied across
easily within the homosexual context. Clearly if both parties to a marriage
or a civil partnership are happy with, or at least prepared to tolerate, sexual
behaviour outside the marriage or civil partnership relationship, that is not
something that the civil law seeks to regulate or prohibit. The issue does
not then arise until one party is sufficiently unhappy at the infidelity so as
to seek the dissolution of the marriage or civil partnership.

For the above reasons, it may be said that the presumption of sexual fidelity,
which is part of a Christian definition of marriage, is not obviously carried
over into the conceptual understanding of civil partnerships as appears
from the words of the Act itself. However, if, as anticipated, applications
for dissolution of civil partnership based on sexual infidelity are successful,

4 3Dennis v Dennis (Spillett cited) [1955] P 153, [1955] 2 All ER 51, CA.

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without further grounds for dissolution being required, then this element of
the Christian understanding of marriage will also be part of the conceptual
understanding of civil partnerships.

Sexual Relationship

Whilst there may be some initial ambiguity as to whether civil partnerships
are intended to be sexually exclusive, there can be no ambiguity that they
are intended to be sexual. This may seem obvious, but it is not so obvious to
the House of Bishops of the Church of England. The Pastoral Statement
issued on 25 July 2005 states:

The legislation does, however, leave entirely open the nature of the
commitment that members of a couple choose to make to each other
when forming a civil partnership. In particular, it is not predicated
on the intention to engage in a sexual relationship. Thus there is no
equivalent of the marriage law provision either for annulment on the
grounds of non-consummation or for its dissolution as a result of
sexual infidelity.

Consideration of the absence of adultery as a ground for divorce is given
above. It is also the case that non-consummation is not included as a ground
for a nullity order in respect of a civil partnership.” Again, it was assumed
by the government that refusal of sexual activity may provide grounds
for dissolution of a civil partnership in the same way that it does provide
grounds for a divorce under the heading of ‘unreasonable behaviour’.45

Whilst these two omissions do provide a superficial basis for assuming
that civil partnerships are not intended to be sexual, other provisions
undermine that assumption. First, there is the range of persons within
prohibited degrees of relationship with whom it is not possible to enter
a civil partnership.46 This range is the equivalent to that for marriage, but
with the necessary changes of gender47 and includes relationships arising
by reason of both marriage and civil partnership. The prohibited degrees
of marriage are also amended by the 2004 Act to include relationships of

“Indeed, another ground for nullity of marriage, the fact that the respondent was, at
the time of the marriage, suffering from a venereal disease in a communicable form,
is also not carried over to civil partnerships. This was because the government was
aware of medical evidence that people can carry venereal disease for many years
without their knowledge and that therefore it is not appropriate for a ground for
nullity; however, deliberate transmission of a sexually transmitted disease would
be considered as a basis for dissolution as a fact proving unreasonable behaviour.
Whilst this approach has some logic, it is surprising that the government has not
therefore removed this ground in respect of nullity of marriage. In practice, the use
of nullity procedure generally, and this ground in particular, is extremely rare.
4This raises the interesting question whether the civil partner of an Anglican priest
can regard it as sufficiently unreasonable to justify a dissolution that his or her
partner refuses to engage in sexual activity because of the teaching set out in Issues
in Human Sexuality.
46 1Civil Partnership Act 2004, s 3(1)(d), Sch 1.
47 Eg a man cannot marry his mother or sister and cannot enter a civil partnership
with his father or brother.

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affinity arising by reasons of civil partnership. If civil partnerships are not
assumed to be sexual, there can be no reason to restrict close family members
from entering them. But because they are presumed to be sexual, it would
not be appropriate for the law to legitimise ‘incestuous’ relationships. The
overturned House of Lords amendment serves to underline this point.

The 2004 Act also provides that the term ‘in-law’ where it appears in
legislation also includes relationship by reason of civil partnership in
addition to relationship by marriage and that ‘step-parent’ and ‘step-
child’ relationships are also recognised for civil partners as they would
be for spouses. Again, the acquisition by one spouse or civil partner of
the family relationships of the other through the concept of ‘in-laws’
and ‘step-parents’ only makes sense if the biological connections of the
family are being extended by the sexual relationship of the spouses or civil
partners.48

The implication that the relationship is intended to be sexual can also be
drawn from one of the more arcane aspects of marriage law that has been
transferred across to civil partnerships. A civil partnership is voidable on
the ground that at the time of its formation the respondent was pregnant
by some person other than the applicant.4 9 Of course some parties entering
a civil partnership may not in fact have a sexually intimate relationship.
This is true also of some marriages-people can marry for convenience,
or for companionship. However, the fact that some people do not engage
in genital sexual activity within their marriage does not prevent marriage
from being the legal regulation of an essentially sexual relationship. The
same applies to civil partnerships.

One Man and one Woman

In so far as this aspect of the concept of marriage is about heterosexuality
it is clear that it does not apply to civil partnerships. A marriage is void if
the parties are not respectively male and female0 and a civil partnership is
void if the parties are not of the same sex.”‘ Indeed the entrenchment of
the division between marriage for heterosexuals and civil partnerships for
homosexuals can be seen in the effect of the Civil Partnership Act 2004,
taken together with the Gender Recognition Act 2004 which received royal
assent on 1 July 2004. The effect of these two Acts together will require a
married couple who wish to maintain their relationship after one of the
couple undergoes gender reassignment to have their marriage annulled or
dissolved and enter a civil partnership. Similarly, civil partners wishing to
maintain their relationship after one party undergoes gender reassignment
will have to dissolve their partnership and enter into a marriage.5 2

48 This is an outworking of the biblical concept of spouses being ‘one flesh’ and
therefore taking on each other’s family relationships as their own.
49Civil Partnership Act 2004, s 50(l)(c).
50 Matrimonial Causes Act 1973, s 11(c).
5′ Civil Partnership Act 2004, ss 3(l)(a), 49(a).
52 See the Gender Recognition Act 2004 (c 7), s 11, Sch 4, and the Civil Partnership
Act 2004, s 250. See also s 50(l)(d), (e).

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ECCLESIASTICAL LAW JOURNAL

The concept of marriage being between one man and one woman is also
an indication that marriage is monogamous. Civil partnerships are also
designed to be monogamous. It is not possible for a person to enter a civil
partnership if he or she is already a civil partner of someone else. It is not
possible to enter a civil partnership if a person is already married. Nor is it
possible for a person to marry if he or she is already in a civil partnership
that has not been dissolved, annulled or terminated by death. This mutual
exclusivity of marriage and civil partnership has the effect of putting civil
partnerships firmly in a position equivalent to marriage.

Mutual Support

Generally the law does not seek to compel the parties to provide support
for one another, save in a financial context. The mutual support that
society expects married couples to give each other is of course far more
extensive than merely financial. However, gone are the days when courts
used to impose orders compelling spouses to live together, or requiring
wives to submit to their husband’s sexual advances. The law can and does,
however, require financial support of the weaker party by the stronger
during the marriage and following death or dissolution of the marriage.
This is reflected both in the changes to the benefits law to take account
of civil partnerships, and in the fact that the Domestic Proceedings and
Magistrates Court Act 1976 is amended to permit civil partners to seek
financial support from errant civil partners as well as errant spouses.

A failure to provide the level of support for one’s spouse that she or he
expects can form the basis of an unreasonable behaviour petition, as
indeed the same would be true with respect to an application for an order
for dissolution of a civil partnership. As indicated in detail above, the
provisions for financial support on dissolution of civil partnership and
upon the death of a civil partner are the same.

The Conception and Nurture of Children

Whilst the conception and nurture of children is seen as one of the goods of
marriage within Christian doctrine, in neither Christian doctrine, nor the
law of England, is the conception or nurture of children a prerequisite of a
valid marriage.” Further, the law setting out the rights and responsibilities
of parents towards their children applies irrespective of whether their
parents are married. Save for very limited matters in connection with
the inheritance of peerages, the legal distinction between legitimate and
illegitimate children has been abolished.

The law does recognise, however, that many married couples do have
children and that the law relating to marriage may impact upon children.
In the same way, many of the details of the 2004 Act anticipate that
children will be a feature of the family life of some civil partnerships.5 4

” Otherwise the church would refuse to marry the infertile and infertility would be
a ground for nullity.
5 See the Civil Partnership Act 2004, ss 75-79.

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THE CIVIL PARTNERSHIP ACT

For example, civil partners are given the same legal rights over the children
of their partners as married people are given over their spouses’ children.
They will be able to apply to the court for residence and contact orders,
they may acquire parental responsibility over their civil partner’s children
in the same circumstances that spouses can and they will have financial
responsibilities towards those children if the civil partnership breaks down.
The fact of the civil partnership is taken into account when calculating a
Child Support Act liability in the same way that the fact of a marriage is.
The 2004 Act amends the Children Act 1989 to provide that the expression
‘child of the family’ applies to civil partnerships as well as marriages.

Whilst a same sex couple cannot conceive a child together in the ordinary
way, in unrelated medical and legal developments assisted conception is
beginning to be available to lesbian couples who would be treated legally as
the parents of any child so conceived. Further the Adoption and Children
Act 2002 (c 38) (most of which has not yet come into force) is amended
by the Civil Partnership Act 200411 to enable civil partners jointly to adopt
children if they are otherwise suitable to do so. Therefore the law does
recognise that civil partnerships are relationships within which children
can be nurtured and parented, if not conceived.

Conclusion on Conceptual Basis of Civil Partnership

In my view, the 2004 Act has an understanding of civil partnerships that
are voluntary, permanent, sexual, monogamous, potentially mutually
supportive and potentially nurturing of children in the same ways that
a marriage is understood to be within English law. A civil partnership
is probably also understood as requiring sexual fidelity in the same way
marriage does, although confirmation of this will only be obtained once
judicial implementation of the provision takes place. In these ways then,
civil partnerships are conceptually the same as marriage.

The key conceptual difference between civil partnerships and marriage
is that one is essentially same-sex and the other is essentially opposite-
sex, with the corollary that children cannot be conceived naturally by the
partners. There are some practical differences in law relating directly to that
physiological difference, namely the absence of provision regarding non-
consummation and adultery and, in the usual run of things, the conception
of children. Therefore whether it is correct to regard civil partnerships
as same-sex marriage depends on whether one regards those aspects of
marriage that are the same as civil partnerships-voluntary, permanent,
sexual, monogamous, mutually supportive, nurturing of children and
probably sexually faithful-as more or less vital to the definition of marriage
than the key difference, which is the sex of the persons entering the status.
Is heterosexuality the essential conceptual component of marriage, or is
the term ‘marriage’ in danger of becoming cheapened by this narrow focus
on the gender of the participants?

5 See the Civil Partnership Act 2004, s 79.

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ECCLESIASTICAL LAW JOURNAL

Religious Element

There has been no consideration above of any religious element in the
definitions of marriage. This may appear superficially important as one of
the differences between marriage and civil partnership is that marriage may
be entered into on religious premises with a religious ceremony whereas a
civil partnership may not. There is, of course, nothing in the civil law that
prohibits a service of blessing after a civil partnership has been entered
into, in the same way that a service of blessing after a civil marriage may
be offered. Whether such blessing services are appropriate as a matter of
church law and discipline is a separate matter considered briefly below.

The religious aspect of the mode of entry into marriage has not been
considered because the law of England does not recognise any difference
in the nature of marriage by reason of the method by which it was entered
into. As was made clear in the case of R v Dibdin” the Church England
does not have any law of marriage different to the law of England. As the
Master of the Rolls said in this case:

Marriage … is one and the same thing whether the contract is made
in church with religious vows superadded, or whether it is made in a
Nonconformist chapel with religious ceremonies, or whether it is made
before a consul abroad, or before a registrar, without any religious
ceremonies. So far as I am aware the Established Church has never
refused to recognise any marriage which by our law is valid as being
otherwise than a good marriage for ecclesiastical purposes.”

PARTICULAR PROBLEMS THAT CIVIL PARTNERSHIPS MAY
RAISE FOR THE CHURCH OF ENGLAND
Clergy Discipline and Employment

It is reasonable to anticipate that, given the opposition to gay clergy in
general and civil partnerships in particular by some in the Church of
England, there will be pressure for disciplinary proceedings to be taken in
respect of any clergy who enter into civil partnerships with their partners.
Prior to formal public status being given to gay relationships it was easy for
bishops to be officially ignorant of the precise nature of the relationship
between a priest and his or her ‘friend’. However, by entering a civil
partnership the relationship becomes a matter of public record in the same
way that a marriage relationship does.

This pressure has been to some extent anticipated by the House of Bishops’
Pastoral Statement. Because the statement asserts that civil partnerships
are not necessarily sexually active (which is true to the same extent that
any particular marriage is not necessarily sexually active) it appears that
disciplinary proceedings would not be brought against a member of the

6 R v Dibdin [1910] P 57, CA.
[1910] P 57 at 109.

301

THE CIVIL PARTNERSHIP ACT

clergy simply by reason of their having entered into a civil partnership. The
statement says:

The House of Bishops considers it would be a matter of social injustice
to exclude from ministry those who are faithful to the teaching of the
Church, and who decide to register a civil partnership.”

However, the statement also considers that a civil partnership is not
necessarily intrinsically incompatible with holy orders:

… provided that the person concerned is willing to give assurances to
his or her bishop that the relationship is consistent with the standards
for the clergy set out in Issues in Human Sexuality.

There is no consideration in the statement as to any potential conflict
between this desire for an assurance to be given to the bishop and the
right to privacy and respect for private and family life given by the Human
Rights Act 1998. Further problems may arise in seeking to discipline a
clergy person for entering a civil partnership. Under the Clergy Discipline
Measure 2004, which comes into force on 1 January 2006, there are four
grounds for alleging misconduct, namely,

* the respondent has acted in breach of ecclesiastical law;
* the respondent has failed to do something which he or she should

have done under ecclesiastical law;
* the respondent has neglected to perform, or been inefficient in

performing the duties, of his or her office;
* the respondent has engaged in conduct that is unbecoming or

inappropriate for the clergy.

There is nothing in ecclesiastical law that specifically prohibits entering
a civil partnership or being sexually active within such a partnership.
Neither the House of Bishops’ Pastoral Statement, nor Issues in Human
Sexuality, nor the General Synod resolution in 1988 amount to such
a legal prohibition. The matter could therefore only be considered
under the context of ‘conduct that is unbecoming or inappropriate for the
clergy … ‘.

Given that a civil partnership will be a lawful status created by statute, and
that such status will in almost all aspects be legally equivalent to marriage,
it is difficult to see how entering a civil partnership can be ‘conduct
unbecoming or inappropriate’ save for the simple fact, in and of itself, that
the partnership is a same-sex one. The church will be obliged to confront
directly whether a same-sex relationship that is in all other important
respects the same as marriage is a sufficient reason for the legal discipline
of clergy. Given the energy currently surrounding this issue, it is reasonable
to assume that any such proceedings are likely to be appealed, perhaps as
far as the European Court of Human Rights in Strasbourg.

58 Paragraph 20.

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Further, the Civil Partnership Act 2004 amends the Sex Discrimination Act
1975 so that civil partners have the right not to be discriminated against
upon the grounds of their civil partnership just as married persons have the
right not to be discriminated against upon the grounds of their marriage.
This has the obvious potential to conflict with the exemption from the
Employment Equality (Sexual Orientations) Regulations 2003/1661 which
enables churches to discriminate in the context of employment against
people on the grounds of sexual orientation ‘where it is necessary to
comply with the doctrines of the religion or to avoid conflicting with the
strongly held religious convictions of a significant number of the religion’s
followers’. Given that the ‘official position of the Church of England’ in
Issues in Human Sexuality makes it clear that sexual orientation is no bar to
office provided that celibacy is practised, it is hard to see how the dismissal
of clergy simply for being in civil partnerships is covered by the exemption
permitting discrimination, particularly as the House of Bishops has now
emphasised that in their view a civil partnership is not necessarily sexual.

A further point arises in respect of the new Clergy Discipline Measure
2004. A clergy person who is the respondent to a decree of divorce or
judicial separation on the grounds of adultery, desertion or unreasonable
behaviour may be removed from office or prohibited by the bishop without
further proceedings. So far as I am aware, there are no plans to amend the
Measure to provide for similar automatic penalties for civil partners who
are respondents to an order dissolving a civil partnership, or a separation
order in respect of a civil partnership, on the grounds of desertion or
unreasonable behaviour.

Occasional Offices

With same-sex partnerships becoming higher profile due to obtaining
civil partnership status, it is possible that there could be conflict between
members of a civil partnership seeking the occasional offices of the
church and clergy unwilling to provide such to them. However, briefly put,
civil partners are in the same position as anyone else with regard to the
occasional offices. Children for whom they have responsibility have the
right to baptism at the parish church subject only to (a) the usual checks
that the person asking for the baptism has parental responsibility for the
child and hence the authority to request it, and (b) a reasonable delay (save
where the child is in danger of death) necessary for the purpose of preparing
the parent or guardians or godparents of their responsibilities. The marital
status, civil status and sexual orientation of a child’s parent or carer has
no relevance at all with regard to the child’s right to baptism. This has
been recognised in the House of Bishops’ statement which emphasises that
‘an unconditional welcome should be given to children in our churches,
regardless of the structure of the family in which they are being brought
up’ and ‘priests cannot refuse to baptise simply because those caring for
the infant are not, in their view, living in accordance with the Church’s
teaching’.

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THE CIVIL PARTNERSHIP ACT

With regard to marriage, clergy will have to check that the parties to a
proposed marriage are both free to marry, not only with respect to pre-
existing marriages but also with respect to pre-existing civil partnerships
that have not been terminated. Interestingly, there is no proposal to amend
section 8(2) of the Matrimonial Causes Act 1965 to permit a clergy person to
decline to marry a person whose former civil partner is still living. Therefore,
providing that the couple proposing marriage are otherwise qualified for
marriage in their parish church, it cannot be refused on the ground that
one party has previously been a member of a civil partnership.

With regard to funerals, the person with the duty to arrange for the burial
or cremation of a deceased is the deceased’s personal representative,
whether appointed under a will or under intestacy. The laws of intestacy
are amended by the 2004 Act however, so that civil partners become the
administrators of their late partner’s estates in the same circumstances that
widows and widowers do. Clergy obligations to conduct funeral and burial
services apply irrespective of the moral status or sexual orientation of the
deceased and his or her personal representative. Failure to comply with
those obligations would be a matter for discipline.

Blessing Services

Blessing services following a civil partnership are no more occasional
offices to which people are entitled by right than services of blessing after a
marriage. Blessing services have also taken place in the absence of any formal
civil partnership, and may continue to do so. No legal consequences flow
from such services as regards the status of the participants. The House of
Bishops’ statements ‘affirms’ that clergy of the Church of England should
not provide services of blessing for those who register a civil partnership.9

However it also states that:

Where clergy are approached by people asking for prayer in relation
to entering into a civil partnership they should respond pastorally and
sensitively in the light of the circumstances of each case.”o

The precise difference between a service of blessing and pastoral and
sensitive prayer is not elaborated. Again, this statement is not a source
of ecclesiastical or canon law. Nevertheless clergy will need to consider
whether this statement impacts on their duty of canonical obedience to
their bishop under Canon C 14. Any disciplinary proceedings in respect
of prayer or blessing services could not be brought by means of the Clergy
Discipline Measure 2004 as matters of doctrine, ritual and ceremonial are
excluded from that Measure. Until such time as a new doctrine Measure is
passed, they will continue to be covered by the Ecclesiastical Jurisdiction
Measure 1963.

9 Paragraph 17.
1 Paragraph 18.

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ECCLESIASTICAL LAW JOURNAL

Of the Admission to Communion of Notorious Offenders

It is not permissible, in my view, to exclude lay people in civil partnerships
from communion under Canon B 16. This is particularly true in the light of
paragraph 5.6 of Issues in Human Sexuality which provides that the church
must not reject lay people who sincerely believe that ‘living in a loving
and faithful homophile partnership, where mutual self-giving includes
the physical expression of their attachment’ is God’s call to them.’ This
approach is confirmed in the House of Bishops’ pastoral statement.

Whilst Issues in Human Sexuality and the House of Bishops’ pastoral
statement have no formal legal status, the former is often referred to as
the ‘official position of the Church of England’ and as such it is difficult
to see how persons in a civil partnership can be regarded as ‘notorious
offenders’.

Further, the last time this Canon (in its earlier form) was given judicial
consideration in the case of R v Dibdin it was found that a marriage that
was recognised by the law because performed abroad, but which would
not have been capable of being validly formed in this country, was still
nevertheless a valid marriage. If the law of the land regarded this marriage
as valid, it was not open to the church to regard the parties to it as ‘notorious
offenders’. There are some obvious parallels between that case and the
present situation. The extent to which the reasoning transfers between
the two cases relates to the extent to which civil partnerships should be
regarded as the equivalent to marriage.

CONCLUSION
As can be seen above, civil partnerships are in all important respects the
same as marriage in terms of practical legal effect. Civil partnerships also
share the overwhelming majority of the conceptual understandings of
marriage that exist within English law. The key difference is, of course, the
gender of the participants. The Civil Partnership Act 2004 does not, in any
practical sense, undermine marriage. It does not change marriage law save
for a very few technical details and does not change the legal consequences
of marriage at all. The provision for gay and lesbian couples in civil
partnerships is in almost all contexts the same as for married heterosexual
couples. It is not better than for married couples. Therefore there is no
sense in which the State support for marriage has been eroded. Nor is there
any sense in which the status of marriage has become second best to civil
partnerships. So in neither of these senses can it coherently be maintained
that civil partnerships ‘undermine marriage’.

Further no coherent case has yet been advanced as to how a couple of the
same sex living together in a voluntary, permanent, faithful relationship
in any way makes another couple’s marriage more likely to break down. It
is difficult to see how one couple’s marriage undermines another couples’

6 Issues in Human Sexuality, para 5.6.

305

THE CIVIL PARTNERSHIP ACT

civil partnership, or vice versa. In fact the introduction of a marriage-like
status for couples for whom traditional marriage is not an option is rather
affirming of the status, rights and responsibilities of marriage. These are
seen as such a good thing that more couples should have the opportunity
of sharing in them.

What this Act does do, however, is challenge the a priori belief, held by
some in the Church, that the social goods of marriage can be experienced
and manifested only by heterosexual couples. Whether this belief is true is
an empirical question. However, the evidence to determine whether or not
same-sex partnerships can achieve the social goods of marriage will now
be in the public domain. It will be interesting to see over time how the
failure rate for civil partnerships compares to the high levels of divorce in
heterosexual marriage.

Further, the fact of legal recognition of these relationships is likely
to promote the general belief already widespread in society that gay
partnerships can be just as stable, faithful, life-affirming, joyful and
loving as heterosexual marriage can be. Therefore those in the Church
who wish to maintain that homosexual partnerships are on scriptural or
theological grounds a less good thing than marriage-or more bluntly that
such relationships are sinful-will have to engage directly with this ‘best’
form of gay relationship. Cheap shots at gay promiscuity will not win the
argument. For society and more liberal people in the Church to accept
the conservative view that same-sex sexual activity is always wrong, the
conservatives will have to show why the faithful sexual expression of love
within this form of relationship, which looks remarkably like a marriage,
is necessarily wrong. Therefore there is hope that the passing of this piece
of legislation will force the Church to improve the quality of its debate on
this issue.

306

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THEY, THEM, AND THEIRS

Jessica A. Clarke

CONTENTS

INTRODUCTION ……………………………………………………………………………………………………………. 896

I. N ONBINARY GENDER ……………………………………………………………………………………………… 904

A. The D iversity of N onbinary Gender Identities …………………………………………………… 905

B. R easonsfor B ias Against N onbinary People ………………………………………………….. 91-0

C. Convergences and Divergences with Other Rights Struggles …………………………… 914

. Fem inist Argum ents ………………………………………………………………………………….. 915

2. Transgender R ights ………………………………………………………………………………………… 921

3. Sexual Orientation ………………………………………………………………………………………… 925
4. Intersex Variations ………………………………………………………………………………………… 928

5. Antiracist and Postcolonial Struggles …………………………………………………………….. 930

II. A CONTEXTUAL APPROACH TO NONBINARY GENDER RIGHTS …………………………. 933

A. Against Universal D efinitions of Sex and Gender ………………………………………………. 933

B. R egulatory M odels for N onbinary Gender R ights ………………………………………………. 936

. Third- Gender R ecognition …………………………………………………………………………….. 937

2. Sex or Gender N eutrality ………………………………………………………………………………. 940

3. Integration into Binary Sex or Gender R egulation ………………………………………… 945

III. LEGAL INTERESTS IN BINARY SEX OR GENDER? …………………………………………… 945

A. Identification …………………………………………………………………………………………………….. 947

B. Antidiscrim ination Rules ………………………………………………………………………………. 95]
L. D ata Collection and Affirm ative Action …………………………………………………………. 952
2. Pregnancy Protections …………………………………………………………………………………… 954

3. M isgendering and Pronouns ………………………………………………………………………….. 957

C. Sex-Specific R oles and Program s ……………………………………………………………………….. 963

. Education ……………………………………………………………………………………………………… 963

2. Athletics ………………………………………………………………………………………………………… 966

3. W orkplaces …………………………………………………………………………………………………….. 974

D . Sex-Segregated Spaces ……………………………………………………………………………………….. 981

. R estroom s and Changing Facilities ……………………………………………………………….. 981

2. H ousing …………………………………………………………………………………………………………. 983
E. H ealth Care ……………………………………………………………………………………………………….. 986

CONCLUSION ………………………………………………………………………………………………………………… 990

894

THEY, THEM, AND THEIRS

Jessica A. Clarke*

Nonbinary gender identities have quickly gone from obscurity to prominence in American
public life, with growing acceptance of gender-neutral pronouns, such as “they, them, and
theirs,” and recognition of a third-gender category by U.S. states including California,
Colorado, Minnesota, New Jersey, Oregon, and Washington. People with nonbinary

gender identities do not exclusively identify as men or women. Feminist legal reformers
have long argued that discrimination on the basis of gender nonconformity – in other

words, discrimination against men perceived as feminine or women perceived as
masculine – is a harmful type ofsex discrimination that the law should redress. But the
idea of nonbinary gender as an identity itself appears only at the margins of U.S. legal

scholarship. Many of the cases recognizing transgender rights involve plaintiffs who
identify as men or women, rather than plaintiffs who seek to reject, permute, or transcend
those categories. The increased visibility of a nonbinary minority creates challenges for

other rights movements, while also opening new avenues for feminist and LGBT advocacy.
This Article asks what the law would look like if it took nonbinary gender seriously. It

assesses the legal interests in binary gender regulation in areas including law enforcement,
employment, education, housing, and health care, and concludes these interests are not
reasons to reject nonbinary gender rights. It argues that the law can recognize nonbinary

gender identities, or eliminate unnecessary legal sex classifications, using familiar civil
rights concepts.

What gender am I? I bet you thought either male or female before I
even asked the question. And this assumption is called the gender
binary.

I was born non-binary, meaning my body and mind don’t fit into
either gender. At the age of 2, I told my parents I wasn’t a girl. At i2, I
was the only person on my football team without a penis. And today at
36, I can wield a chainsaw 5ofeet up a tree, and I’m also really a soft
sensitive artist type.

* Professor of Law, Vanderbilt University Law School. Thanks to Toby Adams, Bradley
Areheart, Genny Beemyn, Stephanie Bornstein, Mary Bryson, Erin Buzuvis, Mary Anne Case, Paul
Castillo, Arli Christian, David Cruz, Heath Fogg Davis, Robin Dembroff, Deborah Dinner,
Elizabeth Emens, Katie Eyer, Joseph Fiskhin, Andrea Freeman, Andrew Gilden, Michele Goodwin,
Aimi Hamraie, Gautam Hans, Jill Hasday, Aziz Huq, Alex lantaffi, Neha Jain, Dru Levasseur, Bill
McGeveran, Shannon Minter, Amy Monahan, Rebecca Morrow, Douglas NeJaime, AJ Neuman

Wipfler, Bethany Davis Noll, David Noll, Aaron Potenza, Jessica Roberts, Darren Rosenblum,
Laura Rosenbury, Alan Rozenshtein, Naomi Schoenbaum, Jennifer Shinall, Russell Spiker, Maayan
Sudai, Hudson Taylor, Ezra Young, the University of Minnesota Public Law Workshop, the Insti-
tute for Advanced Study at the University of Minnesota, the Vanderbilt LGBT Policy Lab, the
University of Chicago Workshop on Regulation of Family, Sex, and Gender, and the law faculties
at the University of Minnesota and the University of Florida for conversations and comments on
this project. Thanks to Katie Hanschke of the Vanderbilt Law Library for tracking down sources.
For research assistance and valuable substantive feedback, I am grateful to Maria Brekke, Emily
Lamm, Sara Lewenstein, Jessica Sharpe, Derek Waller, Claire Williams, and the editors of the
Harvard Law Review. All opinions expressed here are my own.

HARVARD LAW REVIEW

Our identities, who we know ourselves to be, is affected by our biol-
ogy and the environment, nature and nurture. There are non-binary
folks who are intersex, they have ambiguous genitalia, chromosomes that
are not XX or XY i in ioo people have bodies that differ from standard
male or female.

And there are non-binary folks who do have genitalia that is consid-
ered standard male or female, but our brains have always been
transgender. And collectively, we are the solid evidence that there is,
and always has been, a spectrum of gender variation in the human
species.

– Carly Mitchell’

INTRODUCTION

With stunning speed, nonbinary gender identities have gone from
obscurity to prominence in American public life. The use of gender-
neutral pronouns such as “they, them, and theirs” to describe an indi-
vidual person is growing in acceptance.2 “All gender” restrooms are
appearing around the country.3 And an increasing number of U.S. ju-
risdictions are recognizing a third-gender category. In June 2Q16, an
Oregon court became the first U.S. court to officially recognize nonbi-
nary gender identity.4 In October 2017, California passed its Gender
Recognition Act,5 a law allowing any individual to change the sex

1 Gender Identity: Female, Male, or Nonbinary: Hearing on S.B. ’79 Before the Assemb.

Standing Comm. on Judiciary, 2017-2o18 Leg., Reg. Sess. (Cal. 2017) [hereinafter Cal. Assemb.
Judiciary Hearing] (statement of Carly Mitchell), https:Hca.digitaldemocracy.org/hearing/53965?
startTime= 705&vid=559Iob927084f97bc382 c3gbfoecade2 [https:Hperma.cc/H8T3 -NJ6R].

2 See, e.g., THE ASSOCIATED PRESS STYLEBOOK 274 (Paula Froke et al. eds., 2017) (advising
journalists in describing “people who identify as neither male nor female or ask not to be referred
to as he/she/him/her” to “[u]se the person’s name in place of a pronoun, or otherwise reword the
sentence, whenever possible. If they/them/their use is essential, explain in the text that the person
prefers a gender-neutral pronoun. Be sure that the phrasing does not imply more than one person”

(emphasis omitted)); Lexy Perez, Super Bowl: Coca-Cola Represents “Them” in Non-binary Ad,
HOLLYWOOD REP. (Feb. 5, 2018, -0:37 AM), https://www.hollywoodreporter.com/news/super-
bowl-coca-cola-represents-binary-ad-1o81767 [https://perma.cc/JJ3 B- 4 ZWD] (discussing a Super
Bowl advertisement featuring a person described as a “them” rather than a “him” or a “her”).

Not all nonbinary people use “they, them, and theirs” but these seem to be the most commonly
used gender-neutral pronouns. SANDY E. JAMES ET AL., THE REPORT OF THE 2015 U.S.
TRANSGENDER SURVEY 18, 49 (2oi6), http://www.transequality.org/sites/default/files/docs/usts/
USTS%2oFull%2oReport%2o-%2oFINAL%2o1.6.17 .pdf [https://perma.cc/3 5 MN-AVDX] (sur-
veying 27,715 transgender people and reporting that 29% use “they/them,” id. at 49). Some people
who have male or female gender identities use “they, them, and theirs” as well.

3 Aimee Lee Ball, In All-Gender Restrooms, the Signs Reflect the Times, N.Y. TIMES (Nov. 5,
2015), https:Hnyti.ms/iRxHpEM [https:Hperma.cc/789Q-N2TX].

4 In re The Sex Change of Jamie Shupe, No. I6CVI 3 991, slip op. at i (Cir. Ct. Or. Multnomah
Cty. June io, 2o16).

5 S.B. 179, 2017 Leg., Reg. Sess. (Cal. 2017) (enacted).

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THEY, THEM, AND THEIRS

designation on their official documents to “nonbinary.’ 6 At the time of
this writing, eight states, New York City, and Washington, D.C., have
all adopted rules to allow “non-binary” or “X” designations on certain
identification documents.7 These U.S. jurisdictions are catching up with
other countries, including Canada, Australia, India, and Germany.8

People with nonbinary gender identities do not exclusively identify
as men or women.9 The term “gender identity” generally refers to a
person’s internal sense of whether they are a man or a woman10 while
“sex” refers to “bodily characteristics” or the male or female designation
ascribed to an infant at birth.11 Nonbinary people are often said to fit

6 Id. § i i (allowing applicants to change the sex markers on their birth certificates and drivers’

licenses to “nonbinary” upon attestation that the change “is to conform the person’s legal gender to
the person’s gender identity and is not made for any fraudulent purpose”).

7 Id.; N.J. STAT. ANN. § 26:8-40.1-2 (West 20’8) (allowing people to change their birth certificate
gender markers to “undesignated/non-binary” effective February 2o9); Nonbinary Identification
Cards Amendment Act of 2o8, D.C. Act 22-466, 65 D.C. Reg. 011402 (Oct. 9, 2018) (to be codified
at D.C. CODE § 50-140i.oi after a 3o-day period of congressional review) (allowing applicants for
drivers’ licenses to “designate their gender as nonbinary”); WASH. ADMIN. CODE § 246-490-075
(2018) (allowing people to identify as X rather than M or F on birth certificates); N.Y.C., N.Y.,
ADMIN. CODE § 17-167.1 (Oct. 9, 2018) (allowing an “x” designation on birth records to designate
“a sex that is not exclusively male or female,” id. § 17- 67.1(a)); Press Release, Dep’t of the Sec’y of
State, State of Me., Maine BMV to Offer Non-binary Gender Designation on Driver’s Licenses, ID
Cards (June 11, 2o8), https://www.maine.gov/sos/news/2o18/genderdesignationdlid.html [https:/
perma.cc/TgXA-YgXQ]; News Release, Or. Dep’t of Transp., “Not Specified” Gender Choice Com-
ing to Driver Licenses (June 15, 2017), https:Hcontent.govdelivery.com/accounts/ORDOT/bulletins/
Ia2bdge [https:Hperma.cc/gJU4 -86C4]; Associated Press, Minnesota Licenses Can Now Designate
Gender as “Nonbinary,” STARTRIBUNE (Oct. 3, 2018, i:oo PM), http://www.startribune.com/
Minnesota-licenses-can-now-designate-gender-as-nonbinary/49504602 1/ [https:Hperma.cc/PJH5 –

5 BDG]; Curtis M. Wong, Arkansas Has Been Offering a Nonbinary Gender Option on State IDs for
Years, HUFFINGTON POST (Oct. 17, 2oi8, 6:5o PM), https://www.huffingtonpost.com/entry/
Arkansas-gender-neutral-state-id-option us–5bc79f75e4bod38b5874a669 [https:Hperma.cc/GF2K-
ZA 3 S]; FAQ: Non-binary Sex Identifier on Driver Licenses and Identification Cards, COLO. DEP’T
OF REVENUE (Nov. 8, 2oi8), https://www.colorado.gov/pacific/sites/default/files/CO%2onon-
binary% 2 osex%2 oidentifier% 2 oFAQ%2 o i.o8.i 8.pdf [https:Hperma.cc/K6G6-M7L8].

8 Canada began offering nonbinary designations on identity documents in August 2017, joining
Australia, Bangladesh, Germany, India, Malta, Nepal, New Zealand, and Pakistan, which all offer
some form of nonbinary recognition. Niraj Chokshi, Canada Introduces “X” as a Third Sex Cate-
gory for Passport Holders, N.Y. TIMES (Aug. 25, 2017), https://nyti.ms/2wvdnRf [https:Hperma.cc/
JG9H-CKU7].

9 GLAAD MEDIA REFERENCE GUIDE ii (ioth ed. 2o6), http://www.glaad.org/sites/default/
files/GLAAD-Media-Reference-Guide-Tenth-Edition.pdf [https:Hperma.cc/Z7PR-C8ZQ]. I offer
the definitions in this paragraph in the interest of clarity. I do not purport that these definitions are
“correct” in any metaphysical or moral sense, nor do I argue the law should define these terms in
any particular way in every context. See infra section ILA, pp. 933-36 (arguing against any one
definition). I also note that terminology is in flux. While these terms and definitions are standard
at present, they may one day be supplanted by others as social movements refine the relevant ter-
minology to reflect evolving understandings.

10 GLAAD MEDIA REFERENCE GUIDE, supra note 9, at io (defining “gender identity” as “[a]
person’s internal, deeply held sense of their gender,” most commonly whether they are “man or
woman (or boy or girl)”).

11 Id. (explaining that “sex” means “a combination of bodily characteristics including: chromo-
somes, hormones, internal and external reproductive organs, and secondary sex characteristics”).

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under the heading “transgender”: “An umbrella term for people whose
gender identity and/or gender expression differs from what is typically
associated with the sex they were assigned at birth. ‘ 12 But not all non-
binary people identify as transgender, and many transgender people
identify as men or women.13 Nonbinary gender identity is not the same
thing as intersex variation. “‘Intersex’ refers to people who are born
with any of a range of sex characteristics that may not fit a doctor’s
notions of binary ‘male’ or ‘female’ bodies.’ 14 While some nonbinary
people have intersex variations, not all do, 15 and many people with
intersex variations have male or female gender identities.

16

Nonbinary gender identities are not new,17 but media attention
to nonbinary people in the United States has increased significantly
since 2015.18 Nonbinary characters are now portrayed on television as

12 Id. Gender expression means “[e]xternal manifestations of gender, expressed through a per-

son’s name, pronouns, clothing, haircut, behavior, voice, and/or body characteristics.” Id.
13 See, e.g., Paisley Currah, Gender Pluralisms Under the Transgender Umbrella, in

TRANSGENDER RIGHTS 3, 4-5 (Paisley Currah et al. eds., 2006).
14 Intersex Definitions, INTERACT, https:Hinteractadvocates.org/intersex-definitions/ [https:/

perma.cc/JA3 P-JXA5 ] (“Variations may appear in a person’s chromosomes, genitals, or internal or-
gans like testes or ovaries. Some intersex traits are identified at birth, while others may not be
discovered until puberty or later in life.”). The percentage of the population with intersex traits is
estimated at less than 2%. Melanie Blackless et al., How Sexually Dimorphic Are We? Review and
Synthesis, 12 AM. J. HUM. BIOLOGY 151, 161 (2000) (surveying medical literature since 1955 and
concluding that deviation from medical ideals of dimorphism in chromosomes, gonads, and genita-
lia could be as frequent as 2% of live births, although a much smaller percentage of those infants
would be recognized as intersex). While this percentage may seem small, it is larger than the inci-
dence of children born with Down syndrome. Kristin Zeiler & Anette Wickstr6m, Why Do “We”
Perform Surgery on Newborn Intersexed Children? The Phenomenology of the Parental Experience

of Having a Child with Intersex Anatomies, io FEMINIST THEORY 359, 359 (2009).
15 See supra note i and accompanying text.
16 See, e.g., SHARON E. PREVES, INTERSEX AND IDENTITY: THE CONTESTED SELF 60-85

(2003) (interviewing people with intersex variations who struggle to be accepted as women or men).
17 See, e.g., Gilbert Herdt, Preface, in THIRD SEX, THIRD GENDER: BEYOND SEXUAL DI-

MORPHISM IN CULTURE AND HISTORY ii, ii (Gilbert Herdt ed., 1996) (“For centuries the ex-
istence of people who did not fit the sex/gender categories male and female have been known but
typically dismissed from reports of certain non-Western societies, while in the Western European
tradition they have been marginalized, stigmatized and persecuted.”). While nonbinary gender
identity has only recently become prominent in national media in the United States, people have

been publicly identifying as nonbinary since at least the I99os. See KATE BORNSTEIN, GENDER
OUTLAW: ON MEN, WOMEN AND THE REST OF US 51-69 (Vintage Books 1995) (1994); GEN-

DERQUEER: VOICES FROM BEYOND THE SEXUAL BINARY (Joan Nestle et al. eds., 2002).
18 See, e.g., Gender. The Space Between (CBS News television broadcast Mar. 27, 2017), https:/

www.cbsnews.com/video/gender-the-space-between/ [http://perma.cc/9 THJ-KNZL]; Julie Scelfo, A
University Recognizes a Third Gender. Neutral, N.Y. TIMES (Feb. 3, 2015), https:Hnyti.ms/i 6rpyoY
[https:Hperma.cc/B3 4 3-ABH 4 ]. This group identifies by a variety of terms, including “gender-

queer,” “gender-nonconforming, bi-gender, non-binary, or just being fluid.” Steven Petrow, Don’t
Know What “Genderqueer” Is? Meet Someone Who Identifies that Way., WASH. POST (May 9,
2oi6), http://wapo.st/iOhnQi4 [https:Hperma.cc/7LSG-27HQJ.

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THEY, THEM, AND THEIRS

sympathetic rather than silly. 19 In the largest survey of transgender peo-
ple to date, 35% stated that they identify as nonbinary.20 If that survey
is representative, there may be about half a million people who identify
as nonbinary in the United States, a population the size of the city of
Miami.2 1 These numbers are likely to increase as social acceptance of
nonbinary gender identities grows.2 2 Yet nonbinary people still face dis-
crimination. Medical professionals are recognizing individuals with
nonbinary identities as a population at risk of particular mental health
problems due to stress stemming from marginalization and victimiza-
tion.2 3 Survey responses about transgender people’s experiences with

19 See, e.g., Scott Collins, Asia Kate Dillon on “Billions,” Acting and Non-binary Choices,

VARIETY (June 6, 2017, 11:3o AM), http://variety.com/2/oi7tv/awards/asia-kate-dillon-billions-
acting-non-binary-choices-showtime-1202454977/ [https:Hperma.cc/DP8Z-4799] (discussing Asia
Kate Dillon, who identifies as nonbinary and plays Taylor Mason, a nonbinary character on the

cable-network show Billions); Danielle Corcione, “Chilling Adventures of Sabrina” Star Lachlan
Watson on Non-binary Identity and Telling a Bit of Their Own Story Through Susie Putnam, TEEN
VOGUE (Oct. 29, 2018, 2:54 PM), https://www.teenvogue.com/story/lachlan-watson-susie-putnam-
chilling-adventures-of-sabrina [https://perma.cc/CXL4 -TL25] (discussing a nonbinary actor who
plays a character who “is exploring their gender” on a Netflix series); Jackie Strause, Blowing Up
the Binary: How “Transparent” Season 4 Is Personal for Jill Soloway, HOLLYWOOD REP. (Sept.
25, 2017, 9:35 AM), https://www.hollywoodreporter.com/live-feed/transparent-season-4-jill-soloway-
gender-binary-i042629 [https:Hperma.cc/PJZ9 -CT 3 P] (discussing an Amazon series that “features
one character’s journey to identifying as gender non-binary”). In the i99os, the Saturday Night
Live sketch “It’s Pat” featured a character whose indeterminate sex was played for laughs. See
MARJORIE GARBER, VICE VERSA: BISEXUALITY AND THE EROTICISM OF EVERYDAY LIFE

207, 230-31 (i995).
20 JAMES ET AL., supra note 2, at i8, 45 (describing the results of the U.S. Transgender Survey

(USTS) and concluding: “With non-binary people making up over one-third of the sample, the need
for advocacy that is inclusive of all identities in the transgender community is clearer than ever,”
id. at 5). The USTS defined its study population to include “individuals who identified as
transgender, trans, genderqueer, non-binary, and other identities on the transgender identity spec-
trum … at any stage of their lives, journey, or transition.” Id. at 23.

21 This rough calculation assumes 35% of the 1.4 million transgender adults in the United States
identify as nonbinary. ANDREW R. FLORES ET AL., WILLIAMS INST, HOW MANY ADULTS
IDENTIFY AS TRANSGENDER IN THE UNITED STATES? 2 (2oi6), https://williamsinstitute.law.

ucla.edu/wp-content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States.pdf
[https://perma.cc/M9 LJ-3 HHQ] (estimating that 1.4 million adults identify as transgender). This
figure may not reflect the growing number of people who do not identify exclusively as men or

women. In a 2017 survey of 31,217 college students, 1.5% reported that they describe their gender
identity as something other than man, woman, trans man, or trans woman. AM. COLL. HEALTH
ASS’N, NATIONAL COLLEGE HEALTH ASSESSMENT, FALL 2017 REFERENCE GROUP DATA

REPORT 55, https://www.acha.org/documents/ncha/NCHA-IIFALL-2017REFERENCE-

GROUPDATAREPORT.pdf [https:Hperma.cc/A9 T 9 -NELK] (surveying students from fifty-two
postsecondary institutions in the United States).

22 One commonly reported experience is a “moment” when a nonbinary person first realized that
a gender identity other than man or woman might be possible and “everything… fell into place
and made sense.” Gender. The Space Between, supra note I8, at 11:36 (interview with Ela Hosp).
The Internet is facilitating this moment. See id. at 2 i:oo (interview with Talia Bellia).

23 See, e.g., Helene Frohard-Dourlent et al., “I Would Have Preferred More Options”: Account-
ingfor Non-binary Youth in Health Research, 24 NURSING INQUIRY, Jan. 2Q17, at 1, 4; Christina
Richards et al., Non-binary or Genderqueer Genders, 28 INT’L REV. PSYCHIATRY 95, 97-98 (2oi6).

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education, health care, employment, and policing suggest that those with
nonbinary gender identities are “suffering significant impacts of anti-
transgender bias and in some cases are at higher risk for discrimination
and violence” than transgender men and women.

24

Nonbinary gender identity is not a niche concern. To the contrary,
the legal response to nonbinary gender has important implications for a
variety of other identity-based legal movements. Feminist legal reform-
ers have long argued that discrimination on the basis of gender noncon-
formity – in other words, against men perceived as feminine or women
perceived as masculine – is a harmful type of sex discrimination that
the law should redress.25 And scholars advocating for transgender rights
have debated the role of what we might today call nonbinary identities
in transgender rights struggles.26 But surprisingly, the idea of nonbinary
gender as an identity itself has appeared only at the margins of legal
scholarship, not as a central object of study.

27

This Article asks what American law would look like if it took non-
binary gender seriously.28 What would it mean for the law to ensure

24 Jack Harrison et al., A Gender Not Listed Here: Genderqueers, Gender Rebels, and OtherWise
in the National Transgender Discrimination Survey, 2 LGBTQ POL’Y J. HARV. KENNEDY SCH.
13, 13 (2011-2012) (describing results of the 2008 National Transgender Discrimination Survey
(NTDS), which surveyed 6450 transgender and gender-nonconforming people).

25 See, e.g., Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The
Effeminate Man in the Law and Feminist Jurisprudence, io5 YALE L.J. i, 2-3 (1995); Katherine
M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gen-
der, 144 U. PA. L. REV. i, 3-5 (1995); Vicki Schultz, Reconceptualizing Sexual Harassment, 107
YALE L.J. 1683, 1774-88 (1998); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys: Decon-
structing the Conflation of “Sex,” “Gender,” and “Sexual Orientation” in Euro-American Law and
Society, 83 CALIF. L. REV. i, 9-1-0 (995).

26 See, e.g., Currah, supra note 13, at 4-5. Legal scholars have argued about whether sex dis-
crimination law would protect nonbinary genders. Compare, e.g., David B. Cruz, Acknowledging
the Gender in Anti-transgender Discrimination, 32 LAW & INEQ. 257, 258 (2014) (arguing that sex
discrimination law forbids discrimination against “transgender people,” including those with an
“inner sense of themselves as female or male (or less often, as both or neither)”), with Stevie V. Tran
& Elizabeth M. Glazer, Transgenderless, 35 HARV. J.L. & GENDER 399, 403 (2012) (arguing that
“imperfect gender-nonconformists, whose gender identities are more difficult to understand from a
binary perspective … would likely fall outside of the protection of federal civil rights law in its
current formulation of gender non-conformity as sex discrimination”). The law review literature
has advanced broad theories of gender deconstruction, including recent works such as Adam R.
Chang & Stephanie M. Wildman, Gender In/sight: Examining Culture and Constructions of Gender,
18 GEO. J. GENDER & L. 43, 54-63, 67-68 (2017) (outlining concepts); and Melina Constantine
Bell, Gender Essentialism and American Law: Why and How to Sever the Connection, 23 DUKE J.
GENDER L. & POL’Y 163, 206-220 (2o16) (advocating an approach to challenge sex classifications
grounded in Canadian doctrine).

27 Christina Richards et al., Introduction, in GENDERQUEER AND NON-BINARY GENDERS

2 (Christina Richards et al. eds., 2017) (discussing “the dearth of existing literature” on nonbinary
gender from various academic perspectives, and offering a chapter on U.K. but not U.S. law).

28 No prior work of legal scholarship has asked this question. A few articles have focused on
identity documents. See, e.g., Dean Spade, Documenting Gender, 59 HASTINGS L.J. 731, 732-38
(2008) (discussing gender reclassification doctrines for transgender people); Anna James (AJ) Neu-
man Wipfler, Identity Crisis: The Limitations of Expanding Government Recognition of Gender

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nonbinary people’s full participation in social, political, and economic
life? This Article assesses the legal interests in maintaining systems that
divide people into male and female categories in areas including law
enforcement, employment, education, housing, and health care, and
demonstrates that those interests are not reasons to reject the project of
nonbinary inclusion. The law can recognize nonbinary gender using
familiar civil rights tools and concepts. Nonbinary gender rights might
take the form of recognition of a third-gender category, elimination of
unnecessary legal sex classifications, or thoughtful integration of non-
binary people into rules or spaces that require binary categories. Many
of the interventions suggested in this Article would require only modest
extensions of existing law.

One contribution of this Article is to offer the legal literature a de-
scriptive account of nonbinary gender. While nonbinary gender is
not new, its legal possibilities are. Rights claims based on nonbinary
gender require particular attention, because they are distinct from, if
overlapping with, those focused on women or men who are gender-
nonconforming, transgender, lesbian, gay, bisexual, or intersex. Non-
binary people pose a direct challenge to all modes of sex segregation,
unlike transgender people seeking recognition as men or women.29 Ear-
lier iterations of feminist argument against binary gender took place
within a cultural context in which alternatives to binary gender were
scarcely imaginable. To many jurists and theorists, the concept of gen-
der freedom seemed too “conceptually complex and practically costly”
to implement.3 0 Against this backdrop, challenges to binary gender ap-
peared theoretical, utopian, and impossible, and therefore threatening
to other feminist and LGBT projects. The increased visibility and ad-
vocacy of nonbinary people, as a minority, makes new legal arguments
possible.3 1 Yet nonbinary gender is, in many ways, a misfit for legal

Identity and the Possibility of Genderless Identity Documents, 39 HARV. J.L. & GENDER 491, 491
(2016) (advocating the eventual end of sex classification). My own work has explored binary sex
classifications by analogy to the problem of numerus clausus in commercial law: When should there

be a limited number of legal forms that the law recognizes, as in property, as opposed to a nearly
infinite variety of agreements, as in contract? See Jessica A. Clarke, Adverse Possession of Identity:
Radical Theory, Conventional Practice, 84 OR. L. REV. 563, 6og (2005); Jessica A. Clarke, Identity
and Form, 103 CALIF. L. REV. 747, 768-69 (2015). For a different take on that analogy, see Sonia
K. Katyal, The Numerus Clausus of Sex, 84 U. CH. L. REV. 389, 398-400 (201 7) (arguing that sex
is better analogized to intellectual property than to real estate). This Article’s ambition is differ-
ent – it is to examine the very recent and dramatic advance in nonbinary visibility and to ask what
the law would look like, as a practical matter, if it took nonbinary gender seriously.

29 Cf. Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist., 858 F.3 d 1034, 1055 (7 th Cir.
2017) (noting approvingly that “allowing transgender students to use [male or female] facilities that
align with their gender identity has actually reinforced the concept of separate facilities for boys
and girls”).

30 KiMBERLY A. YURACKO, GENDER NONCONFORMITY AND THE LAW 143-44 (206).
31 Cf. S. Bear Bergman & Meg-John Barker, Non-binary Activism, in GENDERQUEER AND

NON-BINARY GENDERS, supra note 27, at 31, 33 (discussing how the “new social movement,” as

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categorization because nonbinary people defy categorization as a group.
In resisting categorization, this minority casts new light on long-running
debates over sex and gender regulation.

But this Article is not about theories of gender. Sex and gender reg-
ulation is an area of legal scholarship that might be described as over-
theorized.3 2 A second contribution of this Article is to suggest a contex-
tual approach to debates over sex and gender regulation: analysis of the
interests at stake in binary gender in each particular legal context. It
examines recent legal, public, and legislative debates over nonbinary
gender rights. These debates are often stymied by efforts to craft an all-
purpose definition of sex or gender. They are hindered by simplistic
assumptions about the shape that nonbinary gender rights must take.
Opponents caricature the options as either creating a separate third-
gender category that is afforded special legal treatment, or stripping law
and society of all gender. For example, they ask, would nonbinary peo-
ple require their own sports teams under Title IX?33 Or would they
demand the end of all women’s sports under Title IX?

34

This Article argues that U.S. civil rights law offers many options for
addressing nonbinary gender rights. One strategy might be sex neutral-
ity: eliminating the use of unnecessary sex classifications by government.
This strategy would not attempt to abolish gender or mandate androg-
yny.35 It would simply mean getting rid of rules that require people to
choose the “male” or “female” category, when those rules do not serve
important interests. For example, there is no good reason to designate

well as “the longer histories of non-binary gender experience which have often been erased,” can
“provide some sense of liveable non-binary lives”).

32 See infra section ILA, pp. 933-36 (discussing theoretical debates about the definitions of sex,

gender, and gender identity).
33 See Gender Identity: Female, Male, or Nonbinary: Hearing on S.B. ’79 Before the S.

Standing Comm. on Judiciary, 2017-2o18 Leg., Reg. Sess. (Cal. 2017) (statement of Jonathan Keller,
Chairman and CEO, California Family Council), https://ca.digitaldemocracy.org/hearing/52473?
startTime=465&vid=64feo449e847fdf5c9d8d3 4954oeaa75 [https:Hperma.cc/8HEA-SVDH] (“The
third gender would be subject to Title IX, which could mean that California’s :15 public universi-
ties, and over io,ooo public schools serving K-12 students would be required under federal law to
not only provide male and female athletic teams and facilities, but non-binary facilities and teams

as well.”).
34 See infra section III.C.2, pp. 966-74.
35 For example, it is telling that MTV’s first gender-neutral acting award went to an actor por-

traying a Disney princess. Hilary Lewis, MTV Movie & TV Awards: Asia Kate Dillon Presents
Gender-Neutral Acting Award to Emma Watson, HOLLYWOOD REP. (May 7, 201i7, 5:31 PM), http:/
www.hollywoodreporter.com/news/m tv- movie- tv- awards- asia-kate- dillon-presents-gender- neutral-
acting-award-emma-watson-000935 [https:Hperma.cc/DQ68-M2YF] (discussing Emma Watson’s
award for her role as the bookish princess Belle in Disney’s live-action Beauty and the Beast).
This move toward gender neutrality is hardly the end of gender. Instead, it is a renegotiation of

gender roles, which might be analyzed critically. See, e.g., PEGGY ORENSTEIN, CINDERELLA
ATE MY DAUGHTER: DISPATCHES FROM THE FRONT LINES OF THE NEW GIRLIE-GIRL

CULTURE 14 (2 o11).

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single-user restrooms as men’s and women’s.36 But sometimes, sex or
gender classifications may serve useful functions. For example, at pre-
sent, having an identification document with a sex designation that
matches one’s self-reported gender identity may protect a person from
harassment by government officials. 37 In such cases, the appropriate
strategy might be third-gender recognition: providing a third category
to protect people with nonbinary gender identities and to express that
they deserve the same respect as men and women. In a limited number
of cases, there may be significant impediments to both third-gender
recognition and sex neutrality. Sex-segregated prison housing might be
an example.38 In such cases, thoughtful integration of nonbinary people
into binary categories may be the best short-term approach. This ap-
proach would redefine binary sex and gender categories to best fulfill
the purposes of the regulation, while also respecting every person’s gen-
der identity, to the extent possible. This Article argues that these ap-
proaches are not mutually exclusive and that no one approach is the
best fit for every context.

Opponents of nonbinary gender recognition argue that their “objec-
tions go well beyond the ideological” and pertain to the government’s
“many legitimate interests” in maintaining a system of binary sex classi-
fication.3 9 They claim that the right to nonbinary gender identity will
“open[] a Pandora’s Box” of unforeseen evils. 40 A final contribution of
this Article is to demonstrate this is not the case. Now that marriage
law no longer needs to determine anyone’s sex,4 1 a diminishing number
of legal arrangements rely on binary sex or gender classifications. This
Article assesses the remaining legal interests in dividing people into male
and female categories, including: ensuring the accuracy of identification
documents and data; facilitating law enforcement; administering preg-
nancy protections; allowing people to use gendered pronouns without
fear of liability for harassment; maintaining single-sex restrooms, edu-
cational programs, sports, and housing facilities; hiring members of one
sex for particular jobs; and avoiding health care costs. It does not aim
to rehash debates about transgender rights in general; it takes as a given

36 See infra section IID.i, pp. 981-83.

37 See infra section IILA, pp. 947-51.
38 See infra section III.D.2, pp. 983-86.
39 WoLF Members Pushing Back Against Local “Gender Identity” Legislation, WOMEN’S LIB-

ERATION FRONT (Aug. 21, 2017), http://womensliberationfront.org/wolf-members-pushing-back-

against-local-gender-identity-legislation/ [https:Hperma.cc/JH7T-F 4 6M].
40 Tammerlin Drummond, Not Male or Female: Proposed Law Would Create Gender-Neutral

Option on California IDs, EAST BAY TIMES (Aug. 21, 2017, 9:37 AM), http://www.eastbaytimes.
con/2017/o8/2 o/not-male-or-female-proposed-law-would-create-third-gender-neutral-option-on-

california-ids/ [https:Hperma.cc/RVR6-KETB] (quoting Jonathan Keller, CEO of the Family
Research Council).

41 Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015).

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that the law should generally respect a transgender person’s gender
identity as a man or a woman.4 2 This Article is interested in how non-
binary gender changes the discussion in each particular context of bi-
nary gender regulation. Upon careful examination, it turns out that ra-
ther than opening Pandora’s box, nonbinary gender rights may have
unforeseen benefits.

This Article proceeds in three Parts. Part I describes nonbinary gen-
der identity as a discrete phenomenon, advancing legal claims that both
converge with and diverge from those of other civil rights movements.
Part II argues for a contextual approach to nonbinary gender rights,
demonstrating that civil rights law offers many possible legal models.
Part III applies that contextual approach, cataloguing and assessing po-
tential legal interests in keeping sex and gender binary, as opposed to
the best legal alternatives in each context. It concludes the law does not
require a universal definition of sex or gender that limits the options to
two.

I. NONBINARY GENDER

This Part describes nonbinary gender identities. It discusses the di-
versity of nonbinary genders and reasons for bias against nonbinary
people. It then situates nonbinary gender with respect to movements
around other identity issues, including feminist arguments for rights to
gender nonconformity, the rights of transgender men and women, inter-
sex advocacy, arguments for sexual-orientation nondiscrimination, and
antiracist and postcolonial struggles. While there are overlaps between
these rights claims, there are also areas of divergence.

This Part makes descriptive claims based on currently available data
and information. These claims are provisional, by necessity, because
nonbinary gender identities, terminology, and legal arguments are ever
evolving. This Article does not presume to speak for any particular
person or group. People with nonbinary gender identities and their ad-
vocates are developing a variety of arguments for inclusion, based on
values such as liberty, equality, respect, privacy, and human flourishing.
While I hope that some of these arguments may resonate with readers,
this Article’s goal is not to build the positive case for inclusion as an
abstract matter.43 I ask readers to assume that the law should treat

42 This Article cannot and does not attempt to persuade any reader who does not share this
premise or is unwilling to assume it for the sake of argument. For a human rights argument, see
Holning Lau, Gender Recognition as a Human Right, in NEW HUMAN RIGHTS: RECOGNITION,
NOVELTY, RHETORIC (Andreas von Arnauld et al. eds., forthcoming), https:Hpapers.ssrn.com/
s013/papers.cfm?abstract-id=3o56iio [https:Hperma.cc/Q8WR-HBWB].

43 One U.K. court made the positive case for nonbinary gender rights in terms of the rights to
“private life” and “gender identification” protected by the European Convention on Human Rights.

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THEY, THEM, AND THEIRS

nonbinary gender identities as having the same status as male and fe-
male ones. My question is what legal results would follow. This Arti-
cle’s normative argument, advanced in Parts II and III, is that the law
has no abiding interest in maintaining a universal scheme of binary sex
or gender regulation that would exclude nonbinary people.

A. The Diversity of Nonbinary Gender Identities

There is no single model or even archetype of nonbinary gender iden-
tity. The following is a brief overview of the diversity of nonbinary
gender identities. My purpose is not to offer anything approaching a
precise definition of nonbinary gender, nor is it to flatten the diversity
of nonbinary genders into a classificatory scheme.44 Social media site
Facebook offers its U.S. English-language users the option to describe
their own gender identities in “a free-form field. ‘ 45 As one set of survey
researchers concluded, the wide array of gender identifiers listed by re-
spondents “speak[s] to the creative project of gender identity creation”
and “testifies to resilience, humor, and a spirit of resistance to gender
indoctrination and policing. ‘ 46 Nonbinary people may have any number
of relationships to gender, including, to name a few, hybridity, rejection,
dynamism, insistence on a third option, subversion, or all of these.

47

R (on the application of Elan-Cane) v. Sec’y of State for the Home Dep’t [2018] EWHC (Admin)
1530 [107]-[08], 2018 WL 03093374.

For thoughts on normative theories that might ground claims to nondiscrimination in the U.S.
context, see Jessica A. Clarke, Against Immutability, 125 YALE L.J. 2 (2015) (criticizing theories
based on immutability and advancing theories based on antisubordination); and Elizabeth E.
Emens, Compulsory Sexuality, 66 STAN. L. REV. 303, 377-78 (2014) (listing criteria that might
apply to traits covered by discrimination law).

44 I use the umbrella term nonbinary following the USTS, JAMES ET AL., supra note 2, at 4-5,
while recognizing there is controversy over the best umbrella term to describe those people who do
not exclusively identify as men or women, as well as controversy over whether an umbrella term is
appropriate at all.

If anything, I aim to suggest a “nonce taxonomy” of individualized gender identities. “Nonce”
means a term that can be used only once. Cf EVE KOSOFSKY SEDGWICK, EPISTEMOLOGY OF
THE CLOSET 23 (I99o). Sedgwick wrote of the diversity of desires – each one unique – but
“nonce taxonomy” is also an apt descriptor for a discussion of nonbinary gender identities.

45 Facebook Diversity, FACEBOOK(Feb. 26, 2015), https://www.facebook.com/facebookdiversity/

posts/774221582674346 [https:Hperma.cc/SWNg-NZKZ]; see also Dylan Vade, Expanding Gender
and Expanding the Law: Toward a Social and Legal Conceptualization of Gender that Is More
Inclusive of Transgender People, ii MICH.J. GENDER& L. 253, 261 (2005) (rejecting the analogy
of gender to a “spectrum” and referring to it as a “galaxy”).

46 Harrison et al., supra note 24, at 20.
47 See, e.g., id. (“There appears to be no tension for many [survey respondents who wrote in

their gender identities] between simultaneously identifying as fluidly gendered, multiply gendered,
performing gender, or having no gender.”); Interview by Andrea Jenkins with Alex lantaffi,
Transgender Oral History Project 3 (Oct. 6, 2015) [hereinafter Iantaffi Interview], https://umedia.
lib.umn.edu/sites/defaultlfiles/archive/6o/application/pdf/1553623.pdf [https://perma.cc/HM5 2-4 G2Z]
(describing their gender identity as “non-binary gender-queer trans masculine”); Interview by
Andrea Jenkins with Kate Bornstein, Transgender Oral History Project 3 (Aug. 20, 2015) [herein-
after Bornstein Interview], https:Humedia.lib.umn.edu/sites/default/files/archive/6o/application/

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Examples of gender hybridity – combining gender roles into non-
traditional configurations – might include bigender, pangender, and an-
drogynous identities. For example, during an interview with the
Transgender Oral History Project, therapist and scholar Alex Iantaffi
described their identity as “mixed”: “not fully masculine, not fully femi-
nine. ’48 They recall seeing the movie Flashdance when they were four-
teen years old and identifying with the main character, named Alex, who
“had sexual agency, she wears this tuxedo thing at one point, and she is
a metal-welding dancer.’ 49 College student Quinn Cox explains: “My
gender identity, or how I feel inside, is more masculine, but still not fully
male. If being female was like vanilla ice cream and male was like
chocolate, I would be chocolate with a tiny vanilla stripe.50

Examples of gender rejection – refusal to adopt traditional gender
categories – might include agender, genderless, gender neutral, or uni-
sex identities. For example, as one person explained: “I take agender a
bit literally, in that my gender is more about the lack of it. Growing up,
I never had that sense of being a guy, girl, or something else. My gender
simply isn’t there.’ 51 Gender rejection may also be about avoiding ste-
reotyped expectations. Television producer and writer Jill Soloway ob-
serves that “when people see me as non-binary, I get treated more as a
human being. ‘ 52 They explain: “I identify as trans, which means that I
am not seeking to synthesise my appearance with the label assigned to
me at birth and instead am opting to live in a space where a label other
than male or female is used to define me.

53

Examples of gender dynamism – gender identities that are not static
over time – might include gender fluidity.54 A gender fluid person

pdf/13 3 7158.pdf [https:Hperma.cc/VZ6Z-Y5 FH] (“[R]ight now I would call myself non-binary…
femme-identified transsexual, or transgender …. [T]here’s my sexual identity … I would call that
diesel-femme …. Then there’s the identity I live every day now and I would call that, ‘little old
lady.’ Really.”).

48 Iantaffi Interview, supra note 47, at 16.
49 Id.
50 Quinn Cox, Opinion, The Sex “X” Bill, WESTERN HERALD (Nov. 9, 2017), http:/www.

westernherald.com/opinion/article-3267eb8o-c564-1-i e7-8548-f77dde6f3 5ei.html [https:Hperma.cc/
9HYZ- 7DJX] (describing their identity as “landing on the genderqueer spectrum”).

51 Vera Papisova, What It Means to Identify as Agender, TEEN VOGUE (Jan. 20, 2o16, 9:51
AM), https://www.teenvogue.com/story/what-is-agender [https:Hperma.cc/ACY6-YWSJ] (quoting

an unidentified interviewee).
52 Hadley Freeman, Transparent’s Jill Soloway: “The Words Male and Female Describe Who We

Used to Be,” THE GUARDIAN (May 21, 2017, io:oo AM), https://www.theguardian.com/tv-and-
radio/2o 017/may/21 /transparents-jill-soloway-the-words-male-and-female-describe-who-we-used-

to-be [https:Hperma.cc/AFM6-ZZTS]. At the same time, Soloway has stated that they are “happy
to speak on behalf of women and on behalf of feminism.” Id. They “agree that ‘woman’ shouldn’t
mean a particular thing.” Id.

53 Id.
54 See, e.g., Harrison et al., supra note 24, at 14 (reporting that 20% of 2oo8 NTDS respondents

selected “part time as one gender, part time as another” for their primary gender identity today).

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THEY, THEM, AND THEIRS

might experience their gender differently at different times.5 5 Actor
Amandla Stenberg has said “I don’t think of myself as statically a girl.

5
1

6

Gender fluid people may feel more male and use “he” pronouns on some
occasions and feel more female and use “she” pronouns on others.5 7 Or
a person might be working on discovery of their gender identity, con-
ceptualizing it as a journey or process. Professor Petra Doan’s experi-
ence of gender fluidity has prompted her to ask “whether one can per-
form the same gender twice. 581 Author, playwright, and scholar Kate
Bornstein has described gender fluidity as “the ability to freely and
knowingly become one or many of a limitless number of genders, for
any length of time, at any rate of change.1

5 9

Examples of third genders – categories in addition to man and
woman – might include “Two-Spirit (First-Nations)” or “Mahuwahine
(Hawaiian),” or any number of other culturally recognized gender
forms.60 They might include “creative and unique” genders, “such as
twidget, birl, OtherWise, and transgenderist.’ 61 For example, Jessi
Brandon, another participant in the Transgender Oral History Project,
identified themself as “non-binary, although [they] have had thoughts of
maybe identifying … as a demiboy … where you feel partially like a
boy but not really.

’62

55 Laura K. Case & Vilayanur S. Ramachandran, Alternating Gender Incongruity: A New Neu-
ropsychiatric Syndrome Providing Insight into the Dynamic Plasticity of Brain-Sex, 78 MED. HY-
POTHESES 626, 627 (2012) (studying the experiences of thirty-two bigender people who experience
“involuntary” gender switches as frequently as “multiple times a day”).

56 Abby Aguirre, Amandla Stenberg Is a Voice for the Future, VOGUE (Apr. I9, 2017, 9:o AM),
https://www.vogue.com/article/amandla-stenberg-interview-gender-feminism-black-culture [https:/

perma.cc/JSK2-7PA6].
57 Vivian Giang, What It’s Like to Be Young, Gender Neutral and in the Job Market, FORTUNE

(Oct. 20, 2015), http://fortune.com/2015/10/2o/gender-neutral-fluid-job/ [https://perma.cc/EQUS-
2ZY9]; see also Gender. The Space Between, supra note i8, at 27:45 (interviewing Brendan Jordan
and his friends with Jordan explaining that he is not offended when his friends use both “he” and
“she” to refer to him).

58 Petra L. Doan, The Tyranny of Gendered Spaces – Reflections from Beyond the Gender Di-
chotomy, I7 GENDER, PLACE & CULTURE 635, 639 (20oio).

59 BORNSTEIN, supra note 17, at 52.
60 Harrison et al., supra note 24, at 14. Some cultures have more than three genders. See, e.g.,

SHARYN GRAHAM DAVIES, GENDER DIVERSITY IN INDONESIA: SEXUALITY, ISLAM AND
QUEER SELVES 2, I-II (2010) (discussing the Bugis, an ethnic group in South Sulawesi).

61 Harrison et al., supra note 24, at 14 (listing responses to the gender identity question on the

2oo8 NTDS); id. at 20 (describing other write-in genders including “Jest me, skaneelog,… gender-
treyf, trannydyke genderqueer wombat fantastica, Best of Both, and gender blur”).

62 Interview by Andrea Jenkins with Jessi Brandon, Transgender Oral History Project 6 (Nov.
27, 2oi6) [hereinafter Brandon Interview], https:Humedia.lib.umn.edu/sites/default/files/archive/6o/
application/pdf/ 1553882.pdf [https://perma.cc/S77K-YG FQ].

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Examples of subversive genders – gender identities that parody or
deconstruct the gender binary – might include genderqueer.63 For ex-
ample, Bornstein describes their identity as a set of paradoxes, including
“not man, not woman,” “lovable freak,” and “[s]mart blonde.’ 64 In re-
sponse to the question, “What is your primary gender today?,” some
2008 National Transgender Discrimination Survey Respondents wrote
that “gender is a performance.

‘ 65

People with nonbinary identities may view their gender identity, in
terms of their inner sense of self, as separate from their gender expres-
sion, in terms of their outward appearance.66 They may sometimes be
perceived as men or women.67 High school student Star Hagen-Esquerra,
for example, “likes to wear lacy dresses, dramatic cat-eye makeup, and
their hair styled in cascading curls. They like to date straight boys. This
made coming out as nonbinary harder, more confusing.

’68

Like transgender men and women, nonbinary people may or may
not seek or require medical treatment.69 Some nonbinary people may
not seek medical treatment because they do not wish to “pass” as men

63 The term “genderqueer” derives from “queer theory,” an academic theory that questions and

critiques norms with respect to sex, gender, and sexuality. See Jen Jack Gieseking, Queer Theory,
in 2 ENCYCLOPEDIA OF SOCIAL PROBLEMS 737 (Vincent N. Parrillo et al. eds., 2008) (describing
queer theory); Riki Wilchins, A Certain Kind of Freedom: Power and the Truth of Bodies – Four
Essays on Gender, in GENDERQUEER: VOICES FROM BEYOND THE SEXUAL BINARY, supra
note 17, at 23, 27-29 (discussing the term “genderqueer”).

64 Bornstein Interview, supra note 47, at 6.
65 Harrison et al., supra note 24, at 20. Other subversive gender identities included “genderfuck,

rebel, or radical.” Id. The statement “gender is a performance” may be a reference to ideas from
queer theory. See supra note 63.

66 See supra note 12 for a definition of “gender expression.”
67 JAMES ET AL., supra note 2, at 48 (asking nonbinary respondents to the 2015 USTS “what

gender they were perceived to be by people who did not know they were non-binary,” and reporting
that 58% “assumed they were non-transgender women,” 17% “assumed they were non-transgender
men,” and i9% “reported that assumptions about their gender varied”); id. at 50 (asking nonbinary
respondents “[h]ow often people could tell they were transgender without being told,” and reporting

that 6% said “[a]lways or most ofthe time,” 32% said “sometimes,” and 62% said “[r]arely or never”).
68 Jessica Testa, This iz-Year-Old Could Be the First Teenager to Put Nonbinary on Their

Driver’s License, BuZZFEED NEWS (May 27, 2017, 10:04 AM), https://www.buzzfeed.com/jtes/
california-non-binary-gender-identity-recognition [https:Hperma.cc/NU6R-5 WMV].

69 See, e.g., James Bellringer, Surgery for Bodies Commonly Gendered as Male, in GENDER-
QUEER AND NON-BINARY GENDERS, supra note 27, at 247, 249-50, 261 -62 (discussing possible

surgical options for nonbinary people); David Ralph et al., Genital Surgery for Bodies Commonly
Gendered as Female, in GENDERQUEER AND NON-BINARY GENDERS, supra note 27, at 265,
267, 280 (same); Andrew Yelland, Chest Surgeries, in GENDERQUEER AND NON-BINARY GEN-
DERS, supra note 27, at 225, 225-26 (same).

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or women.70 Others might seek medical treatment so as not to have
physical features inconsistent with their gender identities.71

While nonbinary gender may be most prevalent among younger
people, it is not limited to millennials.7 2 In the 2015 U.S. Transgender
Survey (USTS), 8o% of nonbinary respondents “had female on their
original birth certificate, and 2o% had male on their original birth cer-
tificate. ‘7 3 Most nonbinary respondents who reported having transi-
tioned stated that they began their transitions between the ages of eight-
een and twenty-four.4 Nonbinary people do not share uniform views
on political issues, not even those related to transgender rights.7 5 Some
nonbinary people are religious.7 6 There is some evidence nonbinary
people are less likely to be white and more likely to be multiracial than
other transgender people.7 7 They have a variety of sexual orientations,

70 See Tim Murphy, Non-binary Brown Alumni Discuss Life Beyond the Bounds of Gender,

NEWS FROM BROWN (Aug. iS, 2o8), https:Hnews.brown.edu/articles/2o8/o8/nonbinary [https:/
perma.cc/BT7 U- 3 6DK] (interviewing Dreya St. Clair) (“I actually had started meeting trans women
of color not on campus but in the broader Providence community, in clubs, and some of them were
pressuring me into taking hormones, telling me that I had soft features and that I could easily
transition and pass on the streets. But I didn’t want that. I was saying, ‘I’m a boy who’s feminine
and dresses like a girl and there’s nothing wrong with that.’ And I’ve stayed on that course ever
since.”).

71 Colby Sangree, A Non-binary Perspective on Top Surgery, HUFFINGTON POST (Mar.
23, 2017), https://www.huffingtonpost.com/entry/a-non-binary-perspective-on-top-surgery-us-
58d27b27e4bo62043ad4ae76 [https://perma.cc/K552-DBB5 ] (discussing reasons for seeking “top
surgery”: “Everyone in my life told me that growing breasts defined femininity. No longer could
I remain a tomboy – genderfluid, free to express myself – I was on my way to a forced

womanhood”).
72 JAMES ET AL., supra note 2, at 46 (reporting that 6i% of nonbinary respondents to the 2015

USTS were aged eighteen to twenty-four, 35% were aged twenty-five to forty-four, and 5% were

forty-five or older).
73 Id. at 45.
74 See id. at 48 (reporting that 24% of nonbinary respondents transitioned under the age of

eighteen, 56% between the ages of eighteen and twenty-four, i6% between the ages of twenty-five
and thirty-four, and 4% at the age of thirty-five or over). The survey defined transitioning as “living
full-time in a gender other than that on their original birth certificate.” Id.

75 For example, Jamie Shupe, the first person to win a U.S. court order changing their sex des-
ignation to nonbinary, has argued there can be “problems with transgender military service.” Jamie
Shupe, This Debate Is About Gender Dysphoria, Not Transgender Military Service, MERCA-
TORNET (Aug. 1, 2017), https://www.mercatornet.com/conjugality/view/this-debate-is-about-gender-
dysphoria-not-transgender-military-service/2o68 [https:Hperma.cc/WL8H-GJ6A] (“President Trump
is seriously mistaken in putting a blanket ban on transgender military service because not every
trans service member is impacted by gender dysphoria. Neither does every trans person need to
transition their sex. But the President and those that share his views are not completely wrong.”).

76 Wail Qasim, Being a Black, British, Queer, Non-binary Muslim Isn’t a Contradiction, THE
GUARDIAN (June 20, 2oi-6, 4:00 AM), https://www.theguardian.com/commentisfree/2o16/jun/
2 o/black-british-queer-non-binary-muslim-isnt-contradiction [https://perma.cc/Z5 VH-W8SL];
Brandon Interview, supra note 62, at ii (“One of my main concerns was finding a place where I
could be out as queer but I could also be a Christian and talk about how my queerness and my
religion intersect …. “).

77 Harrison et al., supra note 24, at i8–9 (reporting that those selecting “gender not listed here”

on the 2008 NTDS were 70% white, compared with 77% of other respondents; i8% multiracial,

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although only 2% identify as “[s]traight or heterosexual.”‘ 8 Some survey
evidence suggests that this population has a significantly higher level of
educational attainment than average, but a lower household income.7 9

They may be more likely to live on the coasts and in the Northeast than
transgender men and women. 0

B. Reasons for Bias Against Nonbinary People

Nonbinary people report that they face harassment, violence, and
discrimination, with adverse health consequences. Out of nonbinary
respondents to the 2015 USTS, 39% had attempted suicide, compared
with 4.6% of the general population.S This may relate to other findings
of the survey – that nonbinary people experience high rates of discrim-
ination, family rejection, harassment, and assault.8 2 Nonbinary people
may encounter mistreatment for a variety of reasons, including disbelief
in nonbinary identity, erasure of nonbinary experiences, dehumanization
of those who do not fit conventional gender categories, concern that
nonbinary people will undermine traditional gender roles, and politici-
zation of nonbinary identity in a time of increasing polarization.

Bias against nonbinary people often takes the form of disbelief, dis-
regard, disrespect, and paternalism. Nonbinary people report that one
of the most common reasons for bias against them is the belief that they
are insincere and attention seeking, 3 or that nonbinary identity is a

compared with 11% of other respondents; 5% Black, compared with 4% of other respondents; 3%
Asian, compared with 2% of other respondents, and 4% Latino/a, compared with 5% of other
respondents).

78 JAMES ET AL., supra note 2, at 59 (reporting that, among nonbinary respondents to the 2015
USTS, 34% identify as queer, 21% identify as pansexual, 17% identify as asexual, io% identify as
bisexual, 8% identify as gay, lesbian, or same-gender-loving, 2 % as straight or heterosexual, and 8%
as an orientation not listed).

79 Harrison et al., supra note 24, at 19-2o. The 2008 NTDS respondents in general had a higher
level of educational attainment than the general population. Id. at 20.

80 Id. at 19.
81 JAMES ET AL., supra note 2, at 114; see also id. at iO5 (49% of nonbinary people reported

current, serious psychological distress).
82 Id. at 76 (32% reported family rejection since transitioning); id. at 133-34 (i 6% reported being

physically attacked and iO% reported being sexually assaulted in K-12 schools because of the per-
ception that they were transgender); id. at 135 (15% left a K-12 school because of mistreatment); id.
at 15o (7% lost a job because of their gender identity or expression); id. at 186 (71% reported that
they were never or only sometimes treated with respect by law enforcement).

83 Papisova, supra note 51 (“For Mya, the biggest misconception they face about their gender
identity is ‘definitely that it doesn’t exist, or that I’m just trying to get attention.”‘); Brandon Inter-

view, supra note 62, at 12 (describing the response: “They’re just being special snowflakes who want
attention”). Psychologists regard it as unlikely that claiming a nonbinary gender is attention-seeking
behavior. See STEPHANIE BRILL & LISA KENNEY, THE TRANSGENDER TEEN: A HANDBOOK

FOR PARENTS AND PROFESSIONALS SUPPORTING TRANSGENDER AND NON-BINARY

TEENS 14 (2o16) (“Being… non-binary.., is a difficult road to walk…. If your teen simply
wanted to annoy you or try to get your undivided attention with their gender, they would likely do

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trend or a political posture.8 4 Some opponents of nonbinary recognition
argue that science and religion demonstrate that everyone is either a
man or a woman, and the idea of a third gender is “ridiculous,” “non-
sense,” “insane,” “absurd,” and the result of “brainwash[ing].’8 5 Another
common reaction is that nonbinary identities should not be respected
because those identities are a developmental phase, a result of confusion,
or a form of experimentation.6 Relatedly, bias against nonbinary people
is often rooted in paternalism: beliefs by medical professionals, family
members, and educators that nonbinary people must be protected from
themselves, lest they make choices they will come to regret, such as med-
ical intervention, or that will expose them to tragic and irreversible so-
cial consequences.8 7

Yet another form of bias is erasure – a sense of “feeling like the
debris that is falling through the cracks” of policies aimed at transgender
inclusion.8 Some nonbinary people may be criticized for “not being
trans enough” and left out of networks of support for transgender peo-
ple.8 9 Mistreatment of nonbinary people may sometimes result from

what teens have done for generations and use gender expression to assert their individuality and
independence (think hair, makeup, clothing styles).”).

84 See, e.g., Trav Mamone, 9 Things Not to Say to a Non-binary Person, EVERYDAY FEMINISM

(Feb. 15, 2017), https:Heverydayfeminism.com/2017/02/things-not-to-say-non-binary-ppl/ [https://
perma.cc/SGL6-ZFNY] (discussing people “who want to write off anything that doesn’t fit the bi-
narist view of gender as ‘made up”‘ and the false charge that the social media site Tumblr “invented”

nonbinary gender).
85 Just Want Privacy, Oppose 3rd Gender Option on WA Birth Certificates, FACEBOOK (Dec. 5,

2017), https://www.facebook.com/events/967556456753263/ [https:Hperma.cc/2 SMH-L 3 FX] (quota-
tions from a public Facebook page collecting comments on Washington State’s rule to allow a non-
binary designation on birth certificates).

86 At the hearing for recognition of Star Hagen-Esquerra’s nonbinary gender identity, the judge
asked them if they were making an impulsive decision. Hagen-Esquerra, an AP student, responded,
“I’ve never made an impulsive decision in my entire life.” Testa, supra note 68; see also Gender
Identity: Female, Male, or Nonbinary: Hearing on S.B. ’79 Before the Assemb. Standing Comm.
on Transp., 2017-2oi8 Leg., Reg. Sess. (Cal. 2017) [hereinafter Cal. Assemb. Transp. Hearing]
(statement of Jonathan Clay), https:Hca.digitaldemocracy.org/hearing/54049?startTime=o&vid=
aofgeb2f37ag8dafa47cac34d69378d8 [https://perma.cc/ZC5 J-VRR7 ] (“We’ve been asked many
times, is this a phase for our child? And the answer’s no. I mean, since a very early age, it’s now,
looking back, been pretty apparent, that this was … the path our child is taking.”).

87 Parents of transgender children commonly report concern that their children will never find

romantic love, will be targeted for violence and discrimination, or will engage in self-harm. BRILL
& KENNEY, supra note 83, at i9-20.

88 Interview by Andrea Jenkins with Roze (R.B.) Brooks, Transgender Oral History Project ii
(Nov. 3, 2oi6) [hereinafter Brooks Interview], https:Humedia.lib.umn.edu/sites/default/files/
archive/6o/application/pdf/ ’55 3 885.pdf [https:Hperma.cc/K5 YB-PZM9].

89 Genny Beemyn, Get Over the Binary: The Experiences of Nonbinary Trans College Students,
in TRANS PEOPLE IN HIGHER EDUCATION (Genny Beemyn ed., forthcoming 2019) (manuscript
at 25 I) (on file with the Harvard Law School Library) (discussing nonbinary interviewees who were
assigned male at birth and were “frequently critiqued by both cis and other trans people on how
well they ‘do transgender”‘).

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ignorance or misunderstanding.90 Policymakers may sometimes refuse
to entertain the claims of nonbinary people because they believe it is
only “a very small number of people” that “consider themselves to be of
neither gender.”9 1 A related form of discrimination is insistence that
nonbinary people hide, “cover,” or downplay their nonbinary identities
so as not to disrupt their schools or workplaces.92 Many nonbinary peo-
ple report that they often let strangers assume they are men or women,
rather than spend their time trying to explain nonbinary gender identi-
ties.93 Nonbinary respondents to the 2015 USTS were almost twice as
likely as other transgender respondents to avoid asking their employers
to use their correct pronouns.

94

Other reactions to nonbinary identities may be dehumanizing. The
moment the sonogram technician proclaims “It’s a girl!” or “It’s a boy!”
may be the moment someone is first recognized as human.95 Some peo-
ple regard as monstrous “that which eludes gender definition. ‘ 96 They
may react with discomfort, disgust, or anger, feeling that a nonbinary
person is trying to deceive them.97 Nonbinary people may be targeted

90 Misunderstandings abound; there is an entire genre of online news articles that lists them.

See, e.g., Suzannah Weiss, 9 Things People Get Wrong About Being Non-binary, TEEN VOGUE
(Feb. 15, 2018, 4:56 PM), https://www.teenvogue.com/story/9-things-people-get-wrong-about-being-
non-binary [https:Hperma.cc/NDR5 – 3 TSZ]; Meg Zulch, 7 Things Genderqueer People Want You to
Know, BUSTLE (Dec. 3, 2015), https://www.bustle.com/articles/124009-7-things-genderqueer-
people-want-you-to-know [https://perma.cc/TA5 M-YNZ 9].

91 Bergman & Barker, supra note 31, at 36 (quoting a U.K. Ministry of Justice statement that it
is “not aware that that results in any specific detriment” to this group).

92 JAMES ET AL., supra note 2, at -55 (reporting that 14% of nonbinary respondents to the
USTS hid their “past transition to avoid discrimination in the past year”); Giang, supra note 57
(quoting one nonbinary job seeker: “I fear I and many other people may have to hide an essential
part of who we are – our genders – in order to find jobs”). See generally KENJI YOSHINO,
COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS ix (2006) (“To cover is to tone down
a disfavored identity to fit into the mainstream.”).

93 JAMES ET AL., supra note 2, at 49 (finding that 44% of nonbinary respondents to the 2015
USTS “usually let others assume they were a man or woman, and 53% sometimes corrected others”).
The most common reasons for not disclosing a nonbinary identity were: “[m]ost people do not un-
derstand so they do not try to explain it” (86%), “[iut is easier not to say anything” (82 %), “[mIost
people dismiss it as not being a real identity or a ‘phase”‘ (63%), and “[tihey might face violence”
(43%). Id.

94 Id. at 154.
95 See JUDITH BUTLER, BODIES THAT MATTER 232 (1993).
96 PETER BROOKS, What is a Monster? (According to Frankenstein), in BODY WORK 199, 219

(1993) (“Because a monster is that which calls into question all our cultural codes, including lan-
guage itself, we can understand the persistent afterlife of Mary Shelley’s creation, which shows us
that, quite literally, once you have created a monster, whatever the ambiguities of the order of its
existence, you can never get rid of it.”); cf Susan Stryker, My Words to Victor Frankenstein Above
the Village of Chamounix: Performing Transgender Rage, i GLQ: J. LESBIAN & GAY STUD. 237,
250 (1994) (“Like [Mary Shelley’s] creature, I assert my worth as a monster in spite of the conditions
my monstrosity requires me to face, and redefine a life worth living.”).

97 Doan recalls an incident of street harassment in which a man confronted her with “smoulder-
ing anger” and “started yelling ‘I know what you are! You can’t fool me! You are disgusting!”‘
Doan, supra note 58, at 640.

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for violence and assault because they are perceived as both socially vul-
nerable and without human feeling and dignity.98 Nonbinary gender
identities may unleash moral panic because they call into question ac-
cepted social norms about gender identity.99 One agender person reports
regularly being told to “throw myself on the tracks” when waiting for a
subway train.100 People may fear that those who are willing to trans-
gress social norms with respect to binary gender may also be willing to
transgress other social boundaries, posing threats to safety.10 1 Or they
may fear contagion. One nonbinary trans man reports that his father
kicked him out of the house for fear that he would influence his younger
sister to “be gay or be trans.

” 10 2

Investments in binary gender may also drive animus against nonbi-
nary people. Those who celebrate and cherish gender difference may
fear that nonbinary identities will render their views politically incorrect
or even legally impermissible.10 3 They may worry that binary gender
will become a minority perspective that is no longer the default position
respected by public discourse or institutions. Additionally, those who
are privileged because they fall on the masculine side of the gender bi-
nary may fear a loss of that privilege if gender were reconceived as a
free-form range of possibilities. Or, those whose feminine identities af-
ford them particular forms of privilege – such as access to all-female
social spaces or awards – may fear the intrusion of nonbinary people,
the dilution of benefits as nonbinary people insist on spaces for them-
selves, or the dissolution of the very categories of women or femininity.

10 4

98 Doan tells about an incident in which a drunken man in an elevator groped her breasts,

expecting to find them false. Id. at 641. What was most hurtful about the assault was that the man
had a female companion, which had “lulled” Doan “into feeling safe.” Id. Doan writes, “I am fairly
certain that if he had tried to fondle a female whose femininity was unimpeachable, his companion
would probably have pulled him back in horror…. This incident simply drove home the point that
people whose gender does not seem quite right are fair game for all manner of treatment.” Id.

99 See Tucker Carlson, Are “Gender-Neutral” Babies the Future?, Fox NEWS (July 17, 2017),
http://video.foxnews.com/v/5510847908001/?#sp=show-clips [https:Hperma.cc/FU8K-YQGY] (“Well
for all of our lives we’ve lived in a world of boys and girls but that is changing along with everything
else in 20:17…. Are we ready for a world here where baby boys and girls are replaced by baby
somethings?”). For discussion of moral panics, see generally STANLEY COHEN, FOLK DEVILS
AND MORAL PANICS: THE CREATION OF THE MODS AND ROCKERS (1972).

100 Gender. The Space Between, supra note -8, at 7:oo (interviewing Brin Solomon).
101 Cf Kath Browne, Genderism and the Bathroom Problem: (Re)materialising Sexed Sites,

(Re)creating Sexed Bodies, ii GENDER, PLACE & CULTURE 331, 336-38 (2004) (discussing expe-
riences of the “bathroom problem” “where individuals are challenged in toilet spaces and their gen-

der questioned,” id. at 336-37, and hypothesizing that “where bodies are revealed as unstable and
porous, flowing between sexes may be more threatening,” id. at 338).

102 Gender. The Space Between, supra note -8, at 2:34 (interviewing Quinn Diaz).
103 See Cal. Assemb. Transp. Hearing, supra note 86 (statement of Michael McDermott) (opposing

California’s Gender Recognition Act because “the purpose of political correctness is neither to in-
form nor to educate, but rather to humiliate”).

104 See Jessica Chasmar, Girls Complain After “Non-binary” Boy [sic] Is Crowned Prom Queen
in NYC, WASH. TIMES (June 29, 2 o 6), https://www.washingtontimes.com/news/2 o1 6/jun/29/high-

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General trends of increasing political polarization may increase hos-
tility toward nonbinary people, who may be figured as emblems of the
left’s position on gender roles. Opposition to nonbinary gender identity
may result in intentional “misgendering”: the refusal to refer to a person
by the correct pronouns or other gender designations.10 5 Nonbinary
people may be stereotyped as “difficult. ‘ 10 6 Underlying this concern
may be a fear of causing social offense by using the wrong terms.107
Nonbinary people may be associated with controversial ideas in higher
education, such as “trigger warnings” or “political correctness.'” 108

C. Convergences and Divergences with Other Rights Struggles

Advocates of nonbinary recognition have framed their case in terms
of universal values such as self-determination, love, safety, privacy, hu-
man flourishing, inclusion, and respect.10 9 This section begins to map
out some of the connections between the movement for nonbinary
gender rights and feminist, LGBT, intersex, antiracist, and postcolonial

school-girls-complain-after-non-binary-boy-is/ [https://perma.cc/WB6N-CY8J] (discussing negative
reactions on social media). But see Zoe Sullivan, Wisconsin High School to Unveil Gender-Neutral
Homecoming Court, THE GUARDIAN (Oct. 16, 2015, 7:00 AM), https://www.theguardian.com/
us-news/2Q1-5/oct/i 6/wisconsin-high-school-to-unveil-gender-neutral-homecoming-court [https://
perma.cc/SY3 S-WGYL] (“A high school in Wisconsin is poised to unveil a gender-neutral home-
coming court after nearly half the student body signed a petition calling for changes to the court’s
structure…. Instead of being crowned ‘king’ or ‘queen’, the top vote earners at Madison West will
be able to choose their titles.”).

105 Misgendering may also be negligent or accidental. Nonbinary people sometimes report that
a consequence of accidental misgendering is a demand that the nonbinary person forgive and con-
sole the person who made the mistake. See, e.g., Mamone, supra note 84; Paulus van Horne, Intro-
ducing Myself as “They/Them/Their” at My Workplace, at 19:58, PUB. RADIO INT’L (Aug. 8, 2o16,
ii:oo AM), https://www.pri.org/stories/2o6-o8-o8/so-what-are-your-pronouns [https:/perma.
cc/WQK6-GNFD] (interview with Jack Qu’emi) (“You don’t need to make a big deal about it….
I had somebody misgender me and then cry in front of me about it. I was uncomfortable … .

106 Bergman & Barker, supra note 31, at 37.
107 See supra note iO5 .
108 Bergman & Barker, supra note 31, at 37.
109 See, e.g., Cal. Assemb. Judiciary Hearing, supra note i (statement of Cristina Garcia, Member,

Assemb. Standing Comm. on Judiciary) (responding to an opponent of the Gender Recognition Act:
“I do hope that as we move forward, we come from a place of love, a place of understanding, and
a place where we let individuals decide for themselves what they need”); id. (statement of Ash
Kalra, Member, Assemb. Standing Comm. on Judiciary) (arguing in support of the Gender Recog-
nition Act as a way to “stand on the side of ensuring that we create not just a safe community for
all but one in which everyone can live their full potential and live their lives in a way that allows
them to be loved and supported by their community”); Press Release, Exec. Office of the Mayor
of D.C., Mayor Bowser Announces Addition of Gender Neutral Identifier to Drivers Licenses
and Identification Cards (June 23, 2017), https://mayor.dc.gov/release/mayor-bowser-announces-
addition-gender-neutral-identifier-drivers-licenses-and [https:Hperma.cc/V4VS-8AYT] (quoting a
Washington, D.C., official: “The implementation of a gender neutral identifier is consistent with our
DC values of inclusion and respect”).

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advocacy, with an emphasis on legal arguments.110 It is beyond the
scope of this Article to canvass these connections in any comprehensive
way. This section intends to provide an overview of some potential
convergences and divergences among the legal interests of these identity
movements. Its aim is to illustrate that nonbinary gender identity is
worthy of independent analysis and has broad implications.

. Feminist Arguments. – Feminist theory of the late twentieth cen-
tury criticized binary concepts of gender, and those critiques found lim-
ited uptake in the law. Nonbinary gender rights advocacy today both
draws on feminist arguments and diverges from them, opening new legal
possibilities.

Early feminist critiques of binary gender were built on a distinction
between sex as physical and gender as social.1 11 In 1975, cultural an-
thropologist Gayle Rubin criticized the “sex/gender system,” which she
analogized to Marx’s explanation of the relationship between race and
slavery.1 12 Rubin argued for critical analysis of the “social apparatus
which takes up females as raw materials and fashions domesticated
women as products.”‘1 13 She described how kinship systems, resting on
“[c]ompulsory heterosexuality,”‘1 14 organized social life and production
around marriage and “the sexual division of labor,” making men domi-
nant breadwinners and women subordinate caretakers.1 15 This system
rests on “a taboo against the sameness of men and women, a taboo di-
viding the sexes into two mutually exclusive categories, a taboo which
exacerbates the biological differences between the sexes and thereby cre-
ates gender.”‘1 16 Thus, Rubin made the case for freeing women from the
constraints of subordination. But her theory was also about broader
gender freedom. She concluded: “Ultimately, a thoroughgoing feminist
revolution would liberate more than women. It would liberate forms of
sexual expression, and it would liberate human personality from the
straightjacket of gender.”‘117

110 These topics were selected due to the extent of their overlap with nonbinary rights claims,

but that is not to deny that there may also be useful intersections to explore with respect to disability,
class, age, religion, and other identities.

I See, e.g., Donna J. Haraway, “Gender” for a Marxist Dictionary: The Sexual Politics of a
Word, in CULTURE, SOCIETY AND SEXUALITY: A READER 82, 86-89 (Richard Parker & Peter
Aggleton eds., Routledge 2d ed. 2007) (999).

112 See Gayle Rubin, The Traffic in Women: Notes on the “Political Economy” of Sex, in TO-

WARD AN ANTHROPOLOGY OF WOMEN 157, 158-59 (Rayna R. Reiter ed., I975).
113 Id. at ’58.
114 Id. at ’98. This term was popularized in an essay by Adrienne Rich. Adrienne Rich, Com-

pulsory Heterosexuality and Lesbian Existence, 5 SIGNS: J. WOMEN CULTURE & SOC’Y 631
(1980).

115 Rubin, supra note 112, at 178.
116 Id.

117 Id. at 200.

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Twentieth-century feminists debated whether this liberation would
result in a sort of idealized androgyny, where all individuals combine
the best of both masculine and feminine traits,1 18 or in an unbounded
diversity of gender identities, with each person determining their own
reconfigurations of masculinity and femininity, and other genders off the
spectrum.119 Fiction, like Ursula Le Guin’s novel The Left Hand of
Darkness, assisted in the project of imagining different configurations of
gender. 120

At the same time, feminist lawyers pursued legal strategies that at-
tempted to chip away at legally enforced sex roles for men and women,
stereotype-by-stereotype, rather than engaging in wholesale critique of
binary gender.12 1 In these cases, men challenged rules that assumed that
only women would be caretakers,122 and women challenged rules that
assumed only men would be breadwinners.123 Today, the U.S. Supreme
Court is skeptical of laws that classify on the basis of sex, requiring that
they be supported by an “exceedingly persuasive justification. ‘ 124 That
justification must hold up by present-day standards.125 The Supreme
Court’s sex-stereotyping jurisprudence protects gender nonconformists:
for example, women who want to attend military academies and men

118 Compare CAROLYN G. HEILBRUN, TOWARD A RECOGNITION OF ANDROGYNY, at ix-x

(1973) (“0]ur future salvation lies in a movement away from sexual polarization and the prison of
gender toward a world in which individual roles and the modes of personal behavior can be freely
chosen.”), with Joan W. Scott, Deconstructing Equality- Versus-Difference: Or, the Uses of Poststruc-
turalist Theory for Feminism, 14 FEMINIST STUD. 33, 45 (1988) (arguing that the problem with
“subsuming women into a general ‘human’ identity” is that it brings us back “to the days when
‘Man’s’ story was supposed to be everyone’s story”).

119 See, e.g., Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Re-
form, 96 HARV. L. REV. 1497, 1578 (1983) (“Rather than shades of grey as an alternative to all black
and all white, I envision reds and greens and blues.”).

120 URSULA K. LE GUIN, THE LEFT HAND OF DARKNESS (1969) (depicting, in science fiction,
an androgynous species in which individuals move back and forth between male and female repro-
ductive roles). For a different fictional vision of androgyny, see MARGE PIERCY, WOMAN ON
THE EDGE OF TIME (1976).

121 See, e.g., Cary Franklin, The Anti-stereotyping Principle in Constitutional Sex Discrimina-
tion Law, 85 N.Y.U. L. REV. 83, 120 (2010).

122 See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 648-53 (1975) (holding unconstitutional a
Social Security rule that provided benefits to mothers but not fathers).

123 See, e.g., Frontiero v. Richardson, 411 U.S. 677, 688-91 (1973) (plurality opinion) (holding
unconstitutional a statutory requirement that female officers, but not male officers, needed to prove
the dependency of their spouse in order to receive benefits).

124 Sessions v. Morales-Santana, 137 S. Ct. 1678, 169o (2017) (quoting United States v. Virginia,
518 U.S. 515, 531 (1996)).

125 Id. (“Moreover, the classification must substantially serve an important governmental interest
today, for ‘in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights
and societal understandings can reveal unjustified inequality … that once passed unnoticed and
unchallenged.”‘ (alterations and omission in original) (quoting Obergefell v. Hodges, 135 S. Ct. 2584,
2603 (2015))).

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THEY, THEM, AND THEIRS

who want to attend nursing schools.126 Even without the Court’s direc-
tion, the antistereotyping principle has succeeded in convincing legisla-
tures to remove sex classifications from the statute books.

127

But the force of the antistereotyping principle has been limited. The
Court has distinguished laws based on “overbroad generalizations about
the different talents, capacities, or preferences of males and females”
from those sex classifications based on the “enduring” nature of “[p]hys-
ical differences between men and women.’ 128 Thus, equal protection
challenges against laws that forbid women, but not men, to bare their
chests, have had mixed success.129 Courts have refused to upset sex-
specific rules they regard as reflecting “comfortable gender conventions”
and having a trivial impact on women, such as job requirements that
women, but not men, wear makeup.130 And courts have upheld policies
that consider sex for affirmative action purposes. 131

In the twentieth century, the more radical feminist project of re-
envisioning gender identity to include genders that are not male or fe-
male ran into opposition. Conventional wisdom is that everywhere one
looks, one sees human life sorted into male and female categories –
with counterexamples written off as exceptions to the rule. 132 The

126 Virginia, 518 U.S. at 534 (holding that the exclusion of women from the Virginia Military

Institute was unconstitutional); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 729-31 (1982) (hold-
ing unconstitutional a policy of excluding men from a nursing school because it “tends to perpetuate
the stereotyped view of nursing as an exclusively woman’s job,” id. at 729).

127 For example, although the Supreme Court in -98′ upheld a state statute defining statutory
rape as sexual intercourse by a male with a female, Michael M. v. Superior Court, 450 U.S. 464,
472-73 (’98’), all U.S. states have since amended their laws to apply to anyone who has sex with a
minor, Carolyn Cocca, “i6 Will Get You 2d’: Adolescent Sexuality and Statutory Rape Laws, in
ADOLESCENT SEXUALITY: A HISTORICAL HANDBOOK AND GUIDE 15, 21 (Carolyn Cocca ed.,

2006). Though the statutes may be gender neutral, it is important to note they are selectively en-
forced along gendered lines. See Cynthia Godsoe, Recasting Vagueness: The Case of Teen Sex Stat-
utes, 74 WASH. & LEE L. REV. 173, 204 (2O17).

128 Virginia, 518 U.S. at 533; see also id. at 55o n.I9 (noting that physical differences between
male and female cadets “would undoubtedly require alterations necessary to afford members of
each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical
training programs”). In 2001, the Supreme Court upheld an immigration rule that “require[d] un-
wed U.S.-citizen fathers, but not mothers, to formally acknowledge parenthood of their foreign-
born children in order to transmit their U.S. citizenship to those children.” Morales-Santana, :37
S. Ct. at 1694 (discussing Nguyen v. INS, 533 U.S. 53, 62-63 (2ooi)). The explanation: because of
the physical nature of pregnancy, a woman’s parental status is established when she gives birth,
while an unwed father’s connection to a child requires some additional evidence. Id.

129 Compare Free the Nipple v. City of Fort Collins, 216 F. Supp. 3 d 1258, 1264-66 (D. Colo.
2oi6) (denying a motion to dismiss plaintiff’s equal protection challenge), with Tagami v. City of
Chicago, 875 F.3 d 375, 380 (7 th Cir. 2017) (upholding, in a divided decision, a law that allows men,
but not women, to bare their breasts against equal protection challenge).

130 YURACKO, supra note 30, at 45.
131 See, e.g., Johnson v. Transp. Agency, 480 U.S. 616, 619-20 (-987) (Title VII challenge);

Schlesinger v. Ballard, 419 U.S. 498, 499-500, 510 (-975) (constitutional challenge).
132 See Joan C. Williams, Feminism and Post-Structuralism, 88 MICH. L. REV. 1776, 1778 (1990)

(reviewing ZILLAH R. LISENSTEIN, THE FEMALE BODY AND THE LAW (‘988)) (arguing that

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critique of binary gender is often reduced to straw figures easily dis-
missed. For example, critics charge that feminists deny biological facts
about sexual dimorphism in the human species or deny biology alto-
gether.133 Critics assume the only alternative is an impossible form of
gender blindness or a tyrannical form of gender abolition.

134

Some advocates for nonbinary people today frame their arguments
in terms that recall Rubin’s idea of “liberat[ing] human personality from
the straightjacket of gender.’ 135 These new arguments emphasize the
liberty and autonomy of each individual with respect to gender, rather
than the potential for subordination in dualisms like male/female.

136

They also emphasize authenticity.
Consider the case brought by Dana Zzyym challenging the State

Department’s policy of requiring an applicant to mark either M or F on
a passport application.137 Zzyym is intersex138 and nonbinary139 and
uses they/them pronouns.140 Zzyym requested a passport with an X as
the sex designation, and the State Department denied that request.

141

The district court ruled for Zzyym, holding that the State Department’s
“gender policy is arbitrary and capricious and not the product of rational
decision making. ‘ 142 While the court’s decision did not discuss the

theory cannot dissuade people, rather, feminists need “detailed redescription” in the form of “psy-
chological data that allows us to see how a continuum of behavior variation is so consistently inter-
preted as a male/female dichotomy” in order to “help[] people recognize the artificiality of the gender
verities they ‘see’ at work around them”).

133 Many feminist arguments have been “interactionist”: about the relationship between biology
and culture, not a denial of biology. Haraway, supra note iii, at 87.

134 Suzanne B. Goldberg, Essay, Risky Arguments in Social-Justice Litigation: The Case of Sex-
Discrimination and Marriage Equality, 114 COLUM. L. REV. 2087, 2089, 2133 (2014) (arguing that
judges may have “an internalized sense … that if sex-based rules were not tolerated on occasion,
we would all wind up in unisex tunics, having lost our sexed and gendered bearings,” id. at 2133);
Joan Williams, Implementing Antiessentialism: How Gender Wars Turn Into Race and Class Con-
flict, 15 HARV. BLACKLETTER L. 41, 81 (1999) (“We live in a world where most people feel
awkward if they don’t know whether you are a ‘he’ or a ‘she.’ A world where gender was as
unimportant as eye color, many people feel, would leave them literally speechless. (The alternative
of inventing a new language, which holds considerable appeal for intellectuals, probably holds little
appeal for most people.)”).

135 Rubin, supra note 112, at 200.
136 See, e.g., Cal. Assemb. Judiciary Hearing, supra note i (statement of Carly Mitchell) (“We

need autonomy over our own bodies and minds, which means we need doctors taken out of this
process.”).

137 Zzyym v. Pompeo, No. i5-cv-02362, 2018 WL 4491434, at *1 (D. Colo. Sept. 19, 2018).
138 Id.
139 Reporter’s Transcript Hearing on Pending Motions at 7, Zzyym v. Kerry, 220 F. Supp. 3 d

iio6 (D. Colo. 2o16) (No. i5-cv-02362) [hereinafter Zzyym Transcript].
140 Id.
141 Zzyym, 2018 WL 4491434, at *1.
142 Id. at *8. The court also held that the State Department had exceeded its statutory authority,

because “[t]he authority to issue passports and prescribe rules for the issuance of passports under
22 U.S.C. § 2iia does not include the authority to deny an applicant on grounds pertinent to basic
identity, unrelated to any good cause as described in” Supreme Court precedents. Id. at *9.

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nature of the harm to Zzyym, Zzyym’s rights claims were plainly im-
portant. The government’s lawyer accused Zzyym of “cause litigation,”
arguing they were “asking the Court to upset the traditional binary that
pervades our society.’ 143 The accusation of “cause litigation” suggests
that theoretical arguments against binary gender are not persuasive, per-
haps because they are political rather than legal. The government fur-
ther argued that the passport “is not a matter of self-expression,” rather,
it “is a government form.

‘ 144

The judge, however, asked questions suggesting the issue was the
right of nonbinary people to travel internationally, without having to
misrepresent their identities by selecting inaccurate F or M designa-
tions.145 This argument stakes a claim to a type of liberty, but not in
the thin sense of freedom of choice. It asserts that nonbinary people
should not be forced to adopt a binary sex category that is a lie. As
California Senator Scott Wiener explained in support of the Gender
Recognition Act: “[W]e want people to live their authentic lives as who
they are, and this is simply removing a government barrier.’ 146 Senator
Wiener connected the Gender Recognition Act to the feminist critique
of binary gender:

We have a history in this country and in this world of forcing people into
gender roles. Whether it’s forcing women to be a certain way in life or
forcing young boys to be a certain way or forcing all manner of people to
be who society says they are as opposed to who they actually are.

147

While nonbinary gender rights claims may build on feminist argu-
ments, it is important to note potential areas of divergence between fem-
inist and nonbinary gender advocacy. Some feminists may be concerned
that expanding the space outside binary gender will trade off with ef-
forts to expand what it means to be a woman.148 Others may believe
sex discrimination law should challenge only the most egregious forms
of subordination of women, rather than pursuing the libertarian project

143 Zzyym Transcript, supra note 139, at 45.
144 Id. at 52.
145 See, e.g., id. at 14 (question from Judge Jackson asking the lawyer for the government to

respond to the concern that a “person with … ambiguous genitalia, who is neither male or female,
can’t leave the country because you have to have the passport to get out legally, can’t leave the
country unless they lie. And by lie, they check ‘F’ or they check ‘M.”‘).

146 Cal. Assemb. Judiciary Hearing, supra note i (statement of Sen. Scott Wiener).
147 Id.; see Brandon Interview, supra note 62, at 13 (“[T]o me, really, identifying as non-binary is

really a rather cool notion because you’re basically looking at centuries worth of this enforced ex-
pectation of the gender you were assigned at birth and just saying, ‘Screw that, that’s not how I
feel, this is how I feel and I want this to be respected.”‘).

148 Cf. Freeman, supra note 52 (discussing an interview with nonbinary writer and director Jill
Soloway in which the interviewer voiced the concern “that the definition of a woman should be
broader, as they have shown in their work. To retreat from being called a woman feels as if they
are giving up the field”).

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of releasing all people from the straightjacket of gender.149 And others
have criticized moves toward gender neutrality on the ground that, due
to the unique forms of subordination experienced by people who were
socialized as women, certain spaces or opportunities should be reserved
for only those who were assigned female at birth.1 5 0 In debates over
nonbinary gender rights, some radical feminists have expressed concerns
about the “implications … for the safety, privacy, and bodily integrity
of women and girls.

‘ 15 1

Other feminists have drawn upon transgender experiences without
concern about how feminist projects would affect transgender people.

152

Feminists have been criticized for reducing transgender people to useful
examples, rather than subjects in their own right. In the i99os, Riki
Wilchins described the evolution of academic approaches to transgender
people as one in which “psychiatrists” first cast them as “patients,” and
“[t]hen came the feminist theorists who – while erasing our own voices,
and without soiling their pages with the messy complexities of our lived
experience – appropriated us as illustrations for their latest telling the-
ories or perceptive insights. We had become examples.’ 15 3 A feminist
movement focused on expanding the social space for gender noncon-
forming women or men does not necessarily make space for those who
cast off those labels altogether.

As nonbinary people become increasingly visible, their existence may
work to undermine the conventional wisdom that gender identities are
binary and that sex-specific rules are largely inoffensive. The circula-
tion of narratives about nonbinary people trying to navigate social and

149 See YURACKO, supra note 30, at 23-24 (describing how this view influences legal doctrine in
the context of “sex-based grooming codes”).

150 For an example of this genre of “radical feminist” writing, see Sheila Jeffreys, The Politics of

the Toilet: A Feminist Response to the Campaign to “Degender” a Women’s Space, 45 WOMEN’S
STUD. INT’L F. 42, 42 (2014). For background on arguments raised by radical feminists such as
Jeffreys against transgender rights in general, see Michelle Goldberg, What Is a Woman?: The Dis-
pute Between Radical Feminism and Transgenderism, NEW YORKER (Aug. 4, 2014), https:/www.
newyorker.com/magazine/2014/o8/04/woman-2 [https:Hperma.cc/565N-5 DBQ]. For a thoughtful
response to the radical feminist argument, see generally Lori Watson, The Woman Question, 3
TRANSGENDER STUD. Q. 246 (2o16).

151 WoLF Members Pushing Back Against Local “Gender Identity” Legislation, supra note 39
(“Will any man, for any reason, be allowed to declare himself to be ‘nonbinary gender’ and gain
access to women’s spaces? Will the District’s special programs for women and girls become avail-
able to men who self-identify as ‘non-binary’?”).

152 The same could be said of some feminist appropriations of postcolonial and antiracist strug-
gles, without concern for how feminist projects might impact people of color. See infra section
I.C.5, pp. 930-33.

153 RIKi ANNE WILCHINS, READ My Lips: SEXUAL SUBVERSION AND THE END OF GEN-
DER 21 (1997). This Article makes no effort to advance any particular gender theory. It does not
intend to use nonbinary people as “patients,” “examples,” or, as Wilchins charges anthropologists
with doing, as “natives.” Id. at 22. This Article attempts to ask what it would mean for U.S. law
to take nonbinary people seriously as full and equal participants in social, economic, and political
life.

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legal institutions founded on binary sex classifications can compel em-
pathy, understanding, and efforts at inclusion.1 5 4 As the diversity of
nonbinary gender identities becomes more apparent, it may defang the
arguments that inclusion requires enforced androgyny, the end of gen-
der, or the abolition of programs that benefit women.

2. Transgender Rights. – Some nonbinary people identify as
transgender, but others do not. 155 Most transgender respondents to the
2015 USTS primarily identified as men or women.1 5 6 From its incep-
tion, the transgender rights movement has included voices arguing for
what might now be called nonbinary inclusion.157 But the legal strate-
gies of transgender men and women may sometimes diverge from those
whose gender identities are nonbinary.

Whatever their gender identities, transgender people may share in-
terests in self-determination with respect to sex and gender.1 , They
may sometimes agree that the law should not classify people by sex or
gender at all. 159 Advocates for nonbinary rights also stake their claims
in terms of the commonalities of discrimination, oppression, and vio-
lence visited upon nonbinary people and transgender men and women.

160

154 Cf Edward Schiappa et al., The Parasocial Contact Hypothesis, 72 COMM. MONOGRAPHS

92, 94-97, iii (2005) (discussing support for the “Contact Hypothesis”: that interpersonal contact
with members of minority groups reduces prejudice, especially with respect to gay men and lesbi-
ans, and conducting experiments providing some support for the “Parasocial Contact Hypothesis”:
that exposure to television and other mass media depictions of “gay men and male transvestites”
also reduces prejudice, id. at iii); Martha Minow, Rights of One’s Own, 98 HARV. L. REV. i084,
1099 (1985) (reviewing ELISABETH GRIFFITH, IN HER OWN RIGHT. THE LIFE OF ELIZABETH

CADY STANTON (I984)) (discussing the history of women’s rights struggles, including “Lucy
Stone’s unprecedented decision to keep her own name after marriage,” and reflecting that
“[a]lthough one who takes extreme positions runs the risk of moving beyond the comprehension
of people in the mainstream, being ‘ultra’ may also succeed in expanding the bounds of what is
comprehensible”).

155 For a definition of “transgender,” see supra text accompanying note 12. Out of nonbinary
respondents to the 2015 USTS, 82% reported they were “‘very comfortable,’ ‘somewhat comforta-
ble,’ or ‘neutral’ … with the word ‘transgender’ being used to describe them.” JAMES ET AL.,
supra note 2, at 40.

156 JAMES ET AL., supra note 2, at 45 (reporting that 29% of USTS survey respondents identified
primarily as a “transgender man” or a “man” and 33% identified primarily as a “transgender
woman” or a “woman”). But see Rob Clucas & Stephen Whittle, Law, in GENDERQUEER AND
NON-BINARY GENDERS, supra note 27, at 73, 74 (arguing it is “short sighted” to view transgender
men and women as binary, because they too undermine the naturalization of gender).

157 See, e.g., Bergman & Barker, supra note 31, at 32-33 (discussing work by Kate Bornstein and

Stephen Whittle written in the I99os).
158 See, e.g., Clarke, Identity and Form, supra note 28, at 763-64 (discussing “elective” concepts

of sex and gender).
159 See, e.g., Olga Tomchin, Comment, Bodies and Bureaucracy: Legal Sex Classification and

Marriage-Based Immigration for Trans* People, ioi CALIF. L. REV. 813, 815 n.4, 818 (2013) (argu-
ing that “only total elimination of ‘sex’ as a legal category will eliminate [the] harms” of rules such

as those “governing marriage-based immigration for trans* people,” id. at 818).
160 See, e.g., Cal. Assemb. Judiciary Hearing, supra note i (statement of Carly Mitchell) (“So, why

do we need a non-binary identification? This week alone, I was harassed multiple times, because

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These claims sound in universal rights to human flourishing and respect,
rather than liberty. They tap into arguments against group-based
stigma, caste, and subordination.

161

But “who decides your sex or gender?” is a different question than
“how many options are there?” In law, arguments for transgender rights
have sometimes been in tension with critiques of binary gender.162 Some
transgender people may want legal recognition of their male or female
gender identities, rather than elimination of those categories.163 On the
flip side, scholars and activists who critique binary gender have long
debated whether the inclusion of transgender people in the existing cat-
egories of “male” or “female” will make it more difficult to reimagine
those categories.

164

Pragmatic legal advocates may calculate that it is strategic to decou-
ple arguments for recognition of a male or female gender identity from
arguments for recognition of nonbinary identities. Nonbinary gender
may sound less sympathetic, more disruptive, and too novel to judges
and the public. There is a Kafkaesque “man trapped in a woman’s
body” narrative that is sometimes persuasive to non-transgender people,
who can imagine what it would be like to wake up one day in the wrong
body.1 65 But nonbinary people may seem to disrupt this narrative. For
example, Wilchins has said, “I’ve never been trapped in anyone else’s
body, and I hope you haven’t either …. I admit I do still occasionally

I deviate from my assigned gender. We are assaulted, imprisoned, murdered, and this daily stress
has caused 41% of us to attempt suicide, like I did.”); supra p. gio.

161 See Jessica A. Clarke, Frontiers of Sex Discrimination Law, ii5 MICH. L. REV. 809, 833-37

(2 017) (book review) (discussing antisubordination theories and their potential in transgender rights
litigation).

162 See, e.g., JANET HALLEY, SPLIT DECISIONS: HOW AND WHY TO TAKE A BREAK FROM

FEMINISM 262-63 (2006) (asking how “insistence on the fluidity of all the elements of gender and
sexuality” would “cope with the strong desire of many transsexuals to embody one gender or the
other, really, and to consolidate themselves and their lovers as m or f all the way down”).

163 See, e.g., Talia Mae Bettcher, Trapped in the Wrong Theory: Rethinking Trans Oppression and
Resistance, 39 SIGNS: J. WOMEN CULTURE & Soc’Y 383, 385 (2014) (“Many trans people see
themselves as men and women. Taken to its most extreme, the beyond-the-binary model suggests
these people are mistaken (i.e., it invalidates their self-identities).”).

164 See, e.g., WILCHINS, supra note 153, at 67 (expressing the concern that a “transgender rights
movement.., unable to interrogate the fact of its own existence, will merely end up cementing the
idea of a binary sex which I am presumed to somehow transgress or merely traverse”). For a recent

debate about how this plays out in legal arguments, compare YURACKO, supra note 30, at 174
(arguing that “[v]ictory” for nonconformists who rely on arguments about the immutability of gen-
der identity “may come at the expense of greater rigidity of gender roles and expectations for all
workers”), with Paisley Currah, Transgender Rights Without a Theory of Gender?, 52 TULSA L.
REV. 441, 446 (2017) (book review) (arguing that Yuracko has no evidence of a causal connection
between the successes of transgender plaintiffs who argue gender identity is immutable and the
losses of other gender-nonconforming plaintiffs), and Cruz, supra note 26, at 277 (arguing that those
authors concerned about tradeoffs “overstate what a court must do to rule for a transgender plaintiff”).

165 Riki Wilchins, Epilogue: Gender Rights Are Human Rights, in GENDERQUEER: VOICES
FROM BEYOND THE SEXUAL BINARY, supra note 17, at 289, 290.

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THEY, THEM, AND THEIRS

awake quivering in the night with the conviction that I am trapped in
the wrong culture.

‘ ‘166

Additionally, nonbinary gender seems to require more extensive so-
cial change in disrupting sex-segregated spaces and binary gender
norms. In a 2017 case in which a transgender boy won the right to use
facilities consistent with his gender identity, the court noted approvingly
that “allowing transgender students to use [male or female] facilities that
align with their gender identity has actually reinforced the concept of
separate facilities for boys and girls. ‘ 167 Courts may perceive requests
for accommodation from nonbinary individuals as a much greater “ask”
than requests to be integrated into male or female categories.

Opponents of the extension of discrimination law to cover gender
identity may point to nonbinary people as demonstrating the purported
absurdity of the project.168 While these opponents may have been will-
ing to agree that it is gender identity-based harassment for an employer
to insist on referring to a transgender woman as “he” and “Mr.,” they
may not agree that employers should be required to use more unfamiliar
pronouns, such as “ze and hir. ‘ 169 Issues related to pronouns are
often distorted and politicized. After a guide on gender-neutral pro-
nouns led to false reports that the University of Tennessee, Knoxville,
had banned the use of “he” and “she,” the Tennessee legislature voted to
defund the University’s Office for Diversity and Inclusion, and to forbid
the University from using state funds “to promote the use of gender
neutral pronouns.”170 But sometimes, nonbinary gender recognition
may be uncontroversial. When New Jersey passed its Babs Siperstein
Law”‘ recognizing the right of transgender people to change the sex
designations on their birth certificates without the need for any medical

166 Id. at 290-91.
167 Whitaker ex rel Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d 1034, 155 (7 th Cir. 2017).
168 See supra notes 85-86 and accompanying text (discussing unique reasons for opposition to

nonbinary gender identities, including the idea that these identities are a trend or are absurd).
169 Cf Eugene Volokh, Opinion, You Can Be Fined for Not Calling People “Ze” or “Hir” If That’s

the Pronoun They Demand that You Use, WASH. POST: VOLOKH CONSPIRACY (May 17, 2o6),
https:Hwapo.st/24Xqa6Y [https:Hperma.cc/3 D4 H-5 B2E] [hereinafter Volokh, You Can Be Fined]
(“Or what if some people insist that their title is ‘Milord,’ or ‘Your Holiness’? They may look like
non-gender-related titles, but who’s to say?”). Professor Volokh himself, however, has a number of First
Amendment objections to harassment doctrine in general, and might not even agree that it should
be illegal harassment to insult a transgender woman by calling her “Mr.” and “him.” See, e.g.,
Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. REV. 1791,
I819-43, i846 (1992). For a discussion of harassment law, see infra section III.B. 3 , pp. 957-63.
170 TENN. CODE ANN. § 9-4-5119 (West 2018); see also Scott Jaschik, Fear of New Pronouns,

INSIDE HIGHER ED (Sept. 8, 2Q15), https://www.insidehighered.com/news/2Q15/o9/o8/u-tennessee-
withdraws-guide-pronouns-preferred-some-transgender-people [https:Hperma.cc/L7R 3 -X2 QT].

171 N.J. STAT. ANN. § 26:8-40.12 (West 2018).

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documentation, the fact that the law also included a new “undesignated/
non-binary” option did not seem to attract any specific opposition.

17 2

A related novelty concern may be that legal claims that sex discrim-
ination law prohibits discrimination on the basis of transgender status
will be weighed down by nonbinary gender, because nonbinary gender
was not envisioned by the drafters of civil rights-era statutes in the
I96Os and i97oS.17 3 This controversy turns on what “sex” discrimination
means. 17 4 Federal courts increasingly agree that discrimination against
someone for being transgender is a form of sex discrimination because
it rests on sex stereotypes.17 5 The Obama Administration explicitly ex-
tended this logic to nonbinary gender identity, promulgating regulations
that clarify that “[sex] stereotypes can include the expectation that
individuals will consistently identify with only one gender.”‘ 17 6 This

172 Or at least, none is apparent from the legislative history. See Hearing on A. 1718 Before the

Assemb. Human Servs. Comm., 2 isth Leg., 2018 Sess., at 1:07:08 (N.J. 2o18) https://www.njleg.state.
nj.us/media/mp.asp?M=A/2018/AHU/0312-0200PM-Mo-i.M4 A&S=2018 [https:Hperma.cc/X5 MA-

BES2].
173 See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2oooe-2(a) (2012); Title IX of the

Education Amendments of 1972, 20 U.S.C. § i68i(a) (2012). There is a good argument that the

drafters’ intentions should not govern this question. See Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 79-80 (1998) (Scalia, J.) (holding that, with respect to the meaning of “sex” dis-
crimination in Title VIi, “statutory prohibitions often go beyond the principal evil to cover reason-
ably comparable evils, and it is ultimately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed,” id. at 79).

174 See Clarke, supra note 161, at 824. Title VII and Title IX do not include “gender identity” as
a prohibited ground for discrimination, although many state and local rules do. See State Maps of
Laws & Policies, HUM. RTS. CAMPAIGN, https://www.hrc.org/state-maps [https://perma.cc/2DQ3 –
C2 QZ] (cataloguing state laws that prohibit discrimination on the basis of gender identity in edu-
cation, employment, identification documents, hate crimes, housing, public accommodations, and
health care). But cf Mary Anne Case, Essay, 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, 1366-68 (2014) (discussing how “gen-
der identity” provisions might be defined or interpreted so as to preclude coverage for nonbinary
forms of gender identity and expression).

175 Grimm v. Gloucester Cty. Sch. Bd., 302 F. Supp. 3 d 730, 745-46 (E.D. Va. 2018) (discussing
precedents from the First, Sixth, Ninth, and Eleventh Circuits). A recent Sixth Circuit opinion held

that discrimination based on transgender status is sex discrimination because, among other reasons,
it rests on sex stereotyping and might be analogized to discrimination based on religious conversion.
EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 56o, 574-76 (6th Cir. 2018).

176 45 C.F.R. § 92.4 (2017) (defining sex stereotypes in Department of Health and Human Services
(HHS) regulations interpreting the Affordable Care Act); Nondiscrimination in Health Programs
and Activities, 81 Fed. Reg. 31,375, 31,392 (May 18, 2o16) (responding to the comment that there
was no authority for the proposition that “non-binary genders” are “a protected class” by explaining
that prohibited “[s]ex stereotypes can also include a belief that gender can only be binary and thus
that individuals cannot have a gender identity other than male or female”). The Affordable Care
Act borrows its definition of sex discrimination from Title IX. 42 U.S.C. § i8116(a) (2012). For

discussion of litigation over this regulation, see infra section II.E, pp. 986-90.
The Sixth Circuit noted its approval of the Obama Administration’s argument in a Title VII

sex discrimination case, stating:
[D]iscrimination because of a person’s transgender, intersex, or sexually indeterminate sta-
tus is no less actionable than discrimination because of a person’s identification with two

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interpretation may be exploited by opponents of transgender rights.1 7 7

Their argument: Congress’s references to “one sex” or “the other sex” in
another provision of the statute demonstrate that Congress could not
have intended to cover nonbinary genders.17 8 But no court has adopted
this view. If a court were to agree with this argument, it would justify
voiding the regulation only as to nonbinary gender, not as to transgender
men and women.

3. Sexual Orientation. – Gender identity is conceptually distinct
from sexual orientation.17 9 Nonbinary people have a diverse array of
sexual orientations. In response to the 2015 U.S. Transgender Survey,
17% of nonbinary people reported being asexual,1 80 2% reported being
straight or heterosexual, and the other 81% reported various orienta-
tions, such as queer, pansexual, bisexual, gay, or lesbian., In discussing
why many nonbinary people prefer terms such as pansexual and queer,
scholar Genny Beemyn explains: “They see bisexual as implying a bi-
nary, and they are attracted to individuals who are outside of a gender
binary or identify outside of a gender binary themselves, or they con-
sider bisexuals to be attracted to different aspects of gender in different
people, whereas they are attracted to people regardless of gender.

18i 2

There are many convergences between arguments for equality based
on nonbinary gender identity and arguments for lesbian, gay, and bisex-
ual equality. Advocates for nonbinary recognition often phrase their
claims in the same core values of the marriage equality movement,
such as love and acceptance.18 3 Legal arguments for nonbinary gender

religions, an unorthodox religion, or no religion at all. And ‘religious identity’ can be just
as fluid, variable, and difficult to define as ‘gender identity’; after all, both have ‘a deeply
personal[,] internal genesis that lacks a fixed external referent.’
R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3 d at 575 n.4 (quoting Sue Landsittel,

Comment, Strange Bedjellows? Sex, Religion, and Transgender Identity Under Title VII, 104 Nw.
U. L. REV. 1147, 1172 (2010)).

177 See Plaintiffs’ Brief in Support of Their Motion for Partial Summary Judgment or, in the
Alternative, Preliminary Injunction at -3, Franciscan All., Inc. v. Burwell, 227 F. Supp. 3 d 66o
(N.D. Tex. 2o6) (No. i6-cv-ooio8), 2o6 WL 9049696.

178 Id. at i6 (quoting 20 U.S.C. § i68i(a)(2), (8)). The relevant provisions of Title IX include an
exception for “father-son or mother-daughter activities at an educational institution, but if such
activities are provided for students of one sex, opportunities for reasonably comparable activities
shall be provided for students of the other sex,” 20 U.S.C. § i68i(a)(8), as well as an exemption for
certain institutions transitioning from single-sex to admitting “students of both sexes,” id.
§ i68i(a)(2).

179 GLAAD MEDIA REFERENCE GUIDE, supra note 9, at 6 (defining sexual orientation as “an
individual’s enduring physical, romantic and/or emotional attraction to members of the same and/or

opposite sex, including lesbian, gay, bisexual, and heterosexual (straight) orientations”).
180 See Emens, supra note 43, at 307-29 (discussing asexuality as a sexual orientation).
181 See supra note 78 and accompanying text.
182 Genny Beemyn, Coloring Outside the Lines of Gender and Sexuality: The Struggle of Nonbi-

nary Students to Be Recognized, 79 EDUC. F. 359, 360 (2015) (discussing interviews of college
students).

183 See sources cited supra note o9.

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inclusion in the United States are possible only against the backdrop of
prior achievements in sexual orientation equality.1 8 4 Before Obergefell
v. Hodges,1 8 5 opponents of nonbinary gender rights had the easy argu-
ment that binary sex definitions were required to ensure marriage was
only between a man and a woman.18 6 That argument is no longer in
their quiver.

However, nonbinary people may end up with interests in conflict
with some LGBT rights arguments, for reasons similar to the marginal-
ization of bisexuality.8 7 As Professor Kenji Yoshino has explained, one
reason bisexuality is often left out of discussions of LGBT rights is that
it seems to detract from the argument that sexual orientation is immu-
table.8 8 “[Immutability offers absolution by implying a lack of
choice.”1 9 Yet bisexuals are perceived to have had the choice to engage
in heterosexual relationships.190 On the one hand, nonbinary gender
identity might be perceived as mutable, particularly by those who see it
as a phase, a political statement, or a trend.19 1 On the other hand, non-
binary gender (like bisexuality) might be immutable in the sense of being
an expression of one’s authentic self and a fundamental feature of iden-
tity that no one should be asked to change.192 A second reason for bi-
sexual erasure is that the LGBT community may perceive bisexuals as
“flight risks – individuals who could at any time abandon the gay

184 See Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015) (holding that same-sex couples may

not be deprived of the right to marry); United States v. Windsor, 570 U.S. 744, 751 (2013) (striking

down a federal law that excluded same-sex partners from the definition of “spouse”); Lawrence v.
Texas, 539 U.S. 558, 578 (2003) (striking down a Texas statute criminalizing same-sex intimacy
between consenting adults).

185 135 S. Ct. 2584.

186 See, e.g., Mathew D. Staver, Transsexualism and the Binary Divide: Determining Sex Using

Objective Criteria, 2 LIBERTY U. L. REV. 459, 473 (2008).
187 See Michael Boucai, Sexual Liberty and Same-Sex Marriage: An Argument from Bisexuality,

49 SAN DIEGO L. REV. 415, 452-53 (2012) (discussing how advocates in the marriage equality cases
went to great lengths to ignore bisexuality and to characterize their clients as lesbian or gay); Ann
E. Tweedy & Karen Yescavage, Employment Discrimination Against Bisexuals: An Empirical
Study, 21 WM. & MARY J. WOMEN & L. 699, 699-700 (2015) (arguing that bisexuals “remain
largely invisible in the case law and in the popular understanding of discrimination”).

188 See, e.g., Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 STAN. L. REV. 353,
405-07 (2000) (offering several explanations for the marginalization of bisexuals in lesbian and gay
rights movements).

189 Id. at 406; see also Clarke, supra note 43, at 13-17 (discussing the “powerful intuitive appeal,”
id. at 17, of the concept that a person should not be penalized for “‘accidents of birth’ … because
they bear no relationship to individual responsibility,” id. at 16, and tracing this idea through equal
protection law).

190 Yoshino, supra note 188, at 406. This is despite the fact that some bisexuals report they could
not live exclusively as heterosexuals or homosexuals. Id. at 407 n.294.

191 See supra pp. 91o-ii; cf Tran & Glazer, supra note 26, at 401-02 (“[W]hat troubles society

most about transgender people is that they make choices about aspects of their gender that society
believes are not their choices to make.”).

192 See Clarke, supra note 43, at 23-28 (discussing this version of immutability).

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THEY, THEM, AND THEIRS

community to lead straight lives. ‘ 193 Similarly, one reason for bias
against nonbinary people is fear that their choices as to gender identity
will be reversed.194 A third reason for bisexual erasure is that, by as-
serting that sex might not be the primary factor in desire, bisexuality
threatens sex as a primary category of social organization.195 Many var-
iations on nonbinary gender identity do this explicitly rather than im-
plicitly.19 6 And finally, bisexual people make poor poster children due
to stereotypes that they are “promiscuous.'” 197 Nonbinary people, many
of whom adopt sexual orientations other than straight, gay, or lesbian,
may trigger this prejudice as well.

Yet there are also opportunities for convergence. To the extent that
nonbinary legal advocacy challenges the need for legal sex classifica-
tions, it may assist legal arguments for nondiscrimination on the basis
of sexual orientation. Federal antidiscrimination statutes, such as Title
VII of the Civil Rights Act of 196419′ and Title IX of the Education
Amendments of 1972,199 do not explicitly prohibit discrimination on the
basis of “sexual orientation.” One controversy in federal courts is
whether discrimination on the basis of sexual orientation is always a
type of sex discrimination prohibited by federal law.20 0 The Second
Circuit has accepted the argument that it is, because to discriminate on
the basis of sexual orientation, the discriminator must first classify peo-
ple based on sex – for example, the discriminator must identify a person
as a woman, and then disapprove of her sexual attraction for other
women.20 1 Opponents argue that this logic would void every sex classi-
fication by employers, disturbing, for example, sex-differentiated dress

193 Yoshino, supra note i88, at 407.
194 See supra notes 83-86 and accompanying text (discussing the fear of flightiness as a reason

for bias against nonbinary people).
195 Yoshino, supra note i88, at 413 (“Without a clear and privileged distinction between ‘man’

and ‘woman,’ there is no clear and privileged distinction between ‘straight’ and ‘gay.”‘).
196 See supra notes 95-98 and accompanying text. Some forms of third-gender identity may serve

to underscore the importance of sex as a category of social organization. See infra note 236 and
accompanying text.

197 Yoshino, supra note i88, at 420.
198 42 U.S.C. § 2oooe-2(a)(i) (2012).
199 20 U.S.C. § i68i(a) (2012).
200 Compare Zarda v. Altitude Express, Inc., 883 F.3 d ioo, i8 (2d Cir. 2018) (en banc) (holding

it is), and Hively v. Ivy Tech Cmty. Coll., 853 F.3 d 339, 341 (7 th Cir. 2017) (en banc) (same), with
Evans v. Ga. Reg’l Hosp., 850 F.3 d 1248, 1255 (Kith Cir.) (holding it is not), cert. denied, 138 S. Ct.
557 (2017).

201 Zarda, 883 F.3 d at 113-14. A similar argument is that discrimination against, for example, a
lesbian, is sex discrimination because if she were a man, her employer would not object to her sexual
attraction to women. Hively, 853 F.3 d at 345. This argument is consistent with a concept of sexual
orientation that recognizes people outside of sex and gender binaries. Robin A. Dembroff, What Is
Sexual Orientation?, i6 PHILOSOPHERS’ IMPRINT, no. 3, Jan. 2oi6, at i, i9-20.

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codes for men and women.20 2 As nonbinary people challenge the need
for sex-differentiated rules across a number of domains of social life, and
as nonbinary gender identities gain greater acceptance, they may under-
mine the persuasive force behind this type of argument.

4. Intersex Variations. – There are also obvious overlaps between
intersex and nonbinary organizing.20 3 But the intersex movement is a
distinct one, with its own particular relationships to other social justice
movements.20 4 Many people with intersex variations have binary gen-
der identities, but not all do. 20 5 And many people with nonbinary gen-
der identities do not have intersex variations.20 6 These groups may
sometimes share legal interests, although their interests may sometimes
diverge.

Individuals who are both intersex and nonbinary may be at the fore-
front of advocacy efforts, for strategic and practical reasons. Nonbinary
people with intersex traits may seem more sympathetic to the public and
judiciary, because intersex traits are regarded as somatic rather than
psychological or elective.20 7 In American legal discourse, psychological
conditions are often treated with skepticism.208 Nonbinary people like
Dana Zzyym, whose claims appear to be grounded in their physical bod-
ies, may have more legitimacy with a skeptical public and judiciary.

20 9

202 See Zarda, 883 F.3 d at 1o-51 (Lynch, J., dissenting); Brief for the United States as Amicus

Curiae at 17, Zarda, 883 F.3 d ioo (No. I5-3775), 2017 WL 3277292. There are also doctrinal argu-
ments against this position, for example, that courts can and do handle dress code controversies

under a special doctrinal framework.
203 One advocacy group marries these two concerns, calling itself the Intersex & Genderqueer

Recognition Project. INTERSEX & GENDERQUEER RECOGNITION PROJECT, http:/www.
intersexrecognition.org/ [https:Hperma.cc/LgNH-SWGS].

204 See, e.g., JULIE A. GREENBERG, INTERSEXUALITY AND THE LAW: WHY SEX MATTERS
97-105 (2012) (mapping out conflicts). To say the movement is distinct is not to say that everyone
agrees “intersex” is an identity. See Ellen K. Feder & Katrina Karkazis, What’s in a Name?: The
Controversy over “Disorders of Sex Development,” 38 HASTINGS CTR. REP., no. 5, Sept.-Oct. 2008,
at 33, 35 (discussing controversies over conceptualizing intersex as an identity versus a set of “clin-
ically specific diagnoses” that are “widely disparate” in their features).

205 See, e.g., PREVES, supra note 16, at 60-85.
206 See, e.g., JAMES ET AL., supra note 2, at 44 (describing a USTS survey question asking par-

ticipants to check all items that described their gender identities in which 31% of respondents se-
lected “non-binary” but only 3% selected “intersex”).

207 See M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern
Medical Science Is Key to Transgender Rights, 39 VT. L. REV. 943, 988 (2015) (“One of the barriers
to recognition and respect that transgender people face in the courts and beyond is that ‘brain sex’ is
not readily apparent, and transgender people must be believed about who they are.” (footnote omitted)).

208 See, e.g., Dov Fox & Alex Stein, Dualism and Doctrine, 90 IND. L.J. 975, 977-80 (2015) (ar-
guing that “much of our doctrine … treats mind and body as if they work and matter in critically
different ways,” often minimizing mental harm, id. at 979). Judges may be wholly unsympathetic
to what they perceive as choices with respect to identities. See sources cited supra note 189 and
accompanying text.

209 See supra pp. 918-19. In the Zzyym case, the government argued that it could not issue
passports with gender options other than M or F because of “uncertainty about how it would eval-
uate persons ‘transitioning’ to a third sex.” Zzyym v. Pompeo, No. i5-cv-02362, 2018 WL 4491434,

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THEY, THEM, AND THEIRS

They may be able to secure legal changes that redound to the benefit of
all nonbinary people. Intersex people in general embody the argument
that sex is not a coherent set of binary traits: that chromosomes, hor-
mones, and phenotype do not always provide a consistent answer to the
question of whether a person is male or female.

2 10

There is a risk, though, that legal efforts on behalf of people with
intersex variations may be limited to those deemed to possess an immu-
table or natural trait.2 11 This might exclude altogether the claims of
nonbinary people without intersex traits. Or it might support arguments
for medical gatekeeping – requiring that nonbinary people secure a
physician’s opinion regarding their psychological gender as a prerequi-
site to legal protection.2 12 Moreover, opponents of nonbinary recogni-
tion often point to the fact that a small percentage of the population is
intersex as a reason the law should not protect nonbinary people at
all .

2 13

One area of potential convergence is with respect to ending the prac-
tice of unnecessary surgeries to “fix” intersex infants. The new visibility
of nonbinary people may lend support to “[tihe primary goal of the in-
tersex movement,” which “is to eliminate or decrease the number of medi-
cally unnecessary cosmetic genital surgeries being performed on infants
with an intersex condition.’ 2 14 A United Nations Special Rapporteur

at *7 (D. Colo. Sept. -9, 2018). The court held that this argument “misse[d] the ball” because “in-
tersex people are born as they are.” Id. This argument also misses the ball for people undergoing
transitions to nonbinary gender identities. The State Department’s rules for receiving a passport
with a different gender marker simply require a letter from a doctor “stating the applicant has had
appropriate clinical treatment for gender transition to the new gender of either male or female.”
U.S. DEP’T OF STATE, 8 FOREIGN AFFAIRS MANUAL 403.3-2(B)(d)(5 ) (2o8), https://fam.state.
gov/FAM/o8FAM/o8FAMo 4o 3o3 .html [https://perma.cc/K7CD-2863]. Appropriate clinical treat-
ment does not always entail surgery or hormone therapy. See, e.g., WORLD PROF’L ASS’N FOR
TRANSGENDER HEALTH, STANDARDS OF CARE FOR THE HEALTH OF TRANSSEXUAL,
TRANSGENDER, AND GENDER NONCONFORMING PEOPLE 2, 8-9 ( 7 th ed. 2011) [hereinafter
WPATH STANDARDS]. If there is some reason a doctor’s certification is required, people with
nonbinary gender identities might also provide letters certifying that they have received appropriate
clinical treatment for their gender transitions.

210 See sources cited supra note 14 and accompanying text.
211 See Clarke, supra note 43, at 32-52 (discussing ways courts have artificially curtailed the

reach of discrimination law to exclude protection for traits deemed mutable).
212 Cf Dean Spade, Resisting Medicine, Re/modeling Gender, -8 BERKELEY WOMEN’S L. -5,

24 (2003) (critiquing requirements that trans people perform a certain narrative of binary gender
identity to medical professionals before receiving legal protection).

213 See, e.g., Letter from Women’s Liberation Front to John Wiesman, Sec’y, Wash. State Dep’t of
Health, Comments on Preproposal Statement of Inquiry to Amend Chapter 246-490 WAC, Vital Sta-
tistics (Aug. 22, 2017), at 2-3 (Sept. 28, 20:17) [hereinafter WoLF Letter], http:/womensliberationfront.
org/wp-content/uploads/2017/o9/Comment-on-wac-246 -490-075 -birth-certificates final_9-28-1 7.pdf
[https:Hperma.cc/CgUF-TKKC].

214 GREENBERG, supra note 204, at 4. See generally GEORGIANN DAVIS, CONTESTING IN-
TERSEX: THE DUBIOUS DIAGNOSIS (2015); ALICE DOMURAT DREGER, HERMAPHRODITES

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has characterized “involuntary genital normalizing surgery” as a form
of torture.215 An international coalition of medical authorities recom-
mends delaying “unnecessary genital surgery to an age of patient in-
formed consent.’ 216 Surgeries on infants have been criticized for
“caus[ingl more physical and psychological trauma than does growing
up with atypical genitalia.’ 217 One justification for these surgeries has
been that binary sexual anatomy is crucial for parents to raise a child
with a binary gender identity.218 Parents are sometimes advised to allow
these surgeries to avoid stigmatization of their child, or to ensure their
child appears “normal. ‘ 219 But, as Professor Georgiann Davis writes:
“Intersex is a problem because it disrupts the traditional gender order.
If our behaviors weren’t constrained by gender, if opportunities weren’t
filtered through gender, and if gender weren’t tied to bodies and identi-
ties, it is doubtful that intersex would be as problematic throughout the
world as it is today.’ 220 As nonbinary lives become mainstream, parents
and the medical profession may have less to fear for children with am-
biguous genitalia or other sex characteristics, and these surgeries may
decrease.

221

5. Antiracist and Postcolonial Struggles. – Struggles for nonbinary
gender rights also have convergences with and divergences from anti-
racist and postcolonial arguments.

Some nonbinary people point to intersections with antiracist strug-
gles. For example, Jessi Brandon reports that what resonated with them
was the slogan “[riespect my existence or expect my resistance,” because

AND THE MEDICAL INVENTION OF SEX (1998); KATRINA KARKAZIS, FIXING SEX: INTER-

SEX, MEDICAL AUTHORITY, AND LIVED EXPERIENCE (2008); SUZANNE J. KESSLER, LES-

SONS FROM THE INTERSEXED (1998).
215 Juan E. Mendez (Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment), Rep. of the Special Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment 77, U.N. Doc. A/HRC/22/53 (Feb. i, 2013), http://www.
ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53-English.pdf
[https:Hperma.cc/K7 2Z-U8M6].

216 Christopher P. Houk et al., Summary of Consensus Statement on Intersex Disorders and Their
Management, 118 PEDIATRICS 753, 755 (2006); see also INTERACT & LAMBDA LEGAL, PROVID-
ING ETHICAL AND COMPASSIONATE HEALTH CARE TO INTERSEX PATIENTS 2 (20 8), https:/

www.lambdalegal.org/sites/defaultlfiles/publications/downloads/resource-2018073 -hospital-policies-
intersex.pdf [https://perma.cc/7X 9 6-XMTC] (“Leading medical associations, recognizing that irre-
versible and deeply life-altering procedures can be safely delayed to both ensure best outcomes and
avoid the potential ramifications of anesthesia on the developing brain, are developing policies in-
formed by the patient community to delay harmful, medically unnecessary procedures.”).

217 GREENBERG, supra note 204, at 18.
218 See, e.g., Zeiler & Wickstr6m, supra note 14, at 367.
219 Id. at 360; see also id. at 367.
220 DAVIS, supra note 214, at 7-8.
221 But cf. Maayan Sudai, Revisiting the Limits of Professional Autonomy: The Intersex Rights

Movement’s Path to De-medicalization, 41 HARV. J.L. & GENDER 1, 19-20 (2018) (discussing how
some parents of intersex children may prefer medical understandings of intersex traits to avoid
associating their children with the LGBT movement).

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THEY, THEM, AND THEIRS

“all Black people want, what people of color want, all that queer people
and non-binary people want is to be respected and treated as equals, as
equals to someone who is cis gender or straight or white. ‘ 222 Others
point to how the intersection of racial and gender stereotypes can com-
plicate nonbinary identity. As writer Cicely-Belle Blain explains: “Soci-
ety does not allow space for black folks to be alternative, to be nerdy, to
be weird, to be queer, to be different from the narrow boxes created for
us throughout history.

‘223

Others argue by analogy. Lauren Lubin, a nonbinary athlete, criti-
cizes application forms that force an applicant to select one of two cat-
egories for sex, asking: “Can you imagine if you did that with race?

‘2 24

This argument invites a comparison to multiracial identities. In the race
context, there is debate over whether racial fluidity makes it impossible
to collect meaningful data about the persistence of racial disparities or
to identify beneficiaries of affirmative action programs.225 Those who
“decline to state” their race on official forms may be making the political
statement that they believe race should not be significant for purposes
of diversity programs.2 2 6 While it is unlikely that those nonbinary peo-
ple who resist sex classifications are doing so because they oppose af-
firmative action, similar concerns might be raised about the impact of
gender fluidity on data about sexism.227 Moreover, there could be ten-
sions between the goals of nonbinary rights movements and antiracist
struggles. For example, advocates for nonbinary and other transgender

222 Brandon Interview, supra note 62, at 14. “Cis” is a term meaning the opposite of trans – in
other words, a person who identifies with the gender associated with the sex they were assigned at
birth.

223 Cicely-Belle Blain, Opinion, The Political Rebellion of Being Black and Non-binary,
XTRA (June 9, 2017, I:34 PM), https://www.dailyxtra.com/the-political-rebellion-of-being-black-
and-non-binary-73646 [https:Hperma.cc/JW4 S-X 7RM]. Ashleigh Shackelford makes another inter-
sectional argument: “As we see in the media and within our interpersonal spaces, femininity is
significantly scripted through whiteness and thinness. I am none of those things.” Ashleigh
Shackelford, Why I’m Non-binary but Don’t Use “They/Them,” HUFFINGTON POST (Feb. 21,
2017, 1:36 PM), https://www.huffingtonpost.com/entry/why-im-nonbinary-but-dont-use-they-them-
us_58ac875ee4bo5e6b9bi92co7 [https:Hperma.cc/T6SH-QN6K] (“The way whiteness and white su-
premacist ideology is set up, we’re not seen as feminine or woman or human. In many ways, the
masculinizing of our bodies and performance has been the basis for our dehumanizing and denial
of gender conformity.”).

224 Aimee Heckel, Lauren Lubin, Former CU Athlete, Subject of Documentary, DAILY CAMERA
(Sept. 5, 2o6, 9:25 PM), http://www.dailycamera.com/news/ci-3o326197/lauren-lubin-former-cu-
athlete-subject-documentary [https:Hperma.cc/66Y4- 7FYH].

225 See Lauren Sudeall Lucas, Essay, Undoing Race? Reconciling Multiracial Identity with
Equal Protection, 102 CALIF. L. REV. 1243, 1245 (2014).

226 Camille Gear Rich, Decline to State: Diversity Talk and the American Law Student, i8 S.
CAL. REV. L. & SOC. JUST. 539, 549 (2009).

227 See, e.g., WoLF Letter, supra note 213, at 4 (speculating about the impact of nonbinary gender
recognition on the collection of crime statistics based on sex).

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people might seek better enforcement of hate crime statutes.228 But
those laws operate within the context of a criminal justice system that
disproportionately burdens racial minorities.

229

Other advocates of nonbinary recognition may link their resistance
with anticolonialism, pointing to the history of suppression of third gen-
ders in non-Western cultures. 230 Researchers highlight that nonbinary
genders have existed “across time and place” to challenge the view that
humanity is naturally and inevitably divided into male and female cat-
egories.23 1 Historical and present-day examples include Indian Hijra,
Thai Kathoey, Indonesian Waria, various Two-Spirit identities of First
Nations tribes, and South American Machi identities, among others,
each with a distinct meaning not reducible to man or woman. 232 These
examples may suggest it is possible “for alternate genders and sexual
categories to emerge in certain times and places, transcending sexual
dimorphism.’ 233 But these examples have been overlooked due to
“ethno-centric Western interpretations of gender” that “have dominated
the natural and social sciences.’ 234 For example, when the British came
to rule India, they passed laws criminalizing Hijra practices and remov-
ing state protection.235 Cross-cultural and historical arguments may
serve to denaturalize binary gender arrangements. But they may not
point the way toward gender liberation. For example, in India, despite
“the continued salience of the alternative gender role of the hijra,” hijras

228 However, it is important to note that transgender people, particularly those who are people

of color, are often reluctant to seek assistance from law enforcement. See JAMES ET AL., supra
note 2, at 188 (reporting that 57% of transgender respondents to the 2015 USTS were “somewhat
uncomfortable or very uncomfortable asking for help from the police”); id. at 189 fig. 14.9 (breaking
down percentages by race and ethnicity). Seventy-one percent of nonbinary respondents to the 2015
USTS reported they were “never or only sometimes … treated with respect” by law enforcement,
compared with 55% of transgender men and women. Id. at 186.

229 See generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION
IN THE AGE OF COLORBLINDNESS (rev. ed. 2012).

230 See Iantaffi Interview, supra note 47, at 18 (“[T]here are the bigger issues tha[n] the gender

binary itself … it’s part of this colonizing, Christianizing, white supremacist thing because the
more we really look at evidence from anthropology, there have always been a variety of genders in
lots of different cultures and places.” (ellipsis in original)).

231 Ben Vincent & Ana Manzano, History and Cultural Diversity, in GENDERQUEER AND
NON-BINARY GENDERS, supra note 27, at ii, ii; see also, e.g., Herdt, supra note 17; Vincent &
Manzano, supra, at i8-25. Vincent and Manzano also point out that European history includes

examples of nonbinary understandings of gender, such as English mollies, Italian femminielli, and
Albanian sworn virgins. Vincent & Manzano, supra, at 13-17.

232 See Vincent & Manzano, supra note 231, at 18-25. I cannot do justice here to these identities,

so I will not attempt to explain them. I refer readers to the cited texts.
233 Herdt, supra note 17, at -6 (posing this as a question).
234 Vincent & Manzano, supra note 231, at 12.
235 Serena Nanda, Hijras: An Alternative Sex and Gender Role in India, in THIRD SEX, THIRD

GENDER: BEYOND SEXUAL DIMORPHISM IN CULTURE AND HISTORY, supra note 17, at 373,

414. In 2014, India’s Supreme Court recognized a third gender category entitled to equal rights
under India’s Constitution. Nat’l Legal Servs. Auth. v. Union of India, (2014) 5 SCR 119, 142-44.

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THEY, THEM, AND THEIRS

remain stigmatized, and the “role functions in a culture in which male
and female sex and gender roles are viewed as essential, sharply differ-
entiated and hierarchical.

236

Thus, nonbinary gender identities are diverse. Nonbinary people are
targeted for discrimination due to animus, ignorance, disbelief, disre-
gard, disrespect, and the threat they pose to traditional gender norms.
The movement for nonbinary gender rights has complicated relation-
ships with other identity-based legal arguments. It may sometimes be
in tension with feminist, LGBT, intersex, and antiracist legal efforts, but
it also offers these movements new opportunities and possibilities for
convergence.

II. A CONTEXTUAL APPROACH TO
NONBINARY GENDER RIGHTS

This Part asks how the law might respond to rights claims by a di-
verse nonbinary minority.237 Its purpose is not to prescribe any partic-
ular model for legal response. Rather, it is to argue that there are many
ways the law might address nonbinary gender, and that efforts to find a
one-size-fits-all theory stifle discussion. It argues instead for a contex-
tual approach. It will begin by resisting the demand to define sex and
gender with precision, arguing instead that these terms are and should
be culturally contested, and must be defined with attention to each legal
context. It will then discuss possible regulatory models, resisting the
characterization of the issue as either third-gender recognition or gender
abolition.

A. Against Universal Definitions of Sex and Gender

Rather than attempting an all-purpose legal definition of sex or gen-
der, this section argues that when a definition is required, it should be
tailored to serve the interests at stake in regulation. Attempts to settle
metaphysical debates about what sex and gender are distract from the
question of how these concepts should be defined in particular legal con-
texts, if at all.

236 Nanda, supra note 235, at 417. But see Andrew Gilden, Toward a More Transformative Ap-

proach: The Limits of Transgender Formal Equality, 23 BERKELEY J. GENDER L. & JUST. 83, 122
(2008) (discussing historical examples from Native American societies in which “[g]ender variance
was fully incorporated into tribal life and was generally well-respected and valued within the
community”).

237 1 note where these various approaches are already supported by U.S. legal doctrine, but I
leave for another day questions about whether courts, legislatures, or agencies, or federal, state, or
local governments are best suited to implement legal change.

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Debates over procedural rules are instructive here.238 In these de-
bates, scholars ask whether rules should be “transsubstantive,” meaning
the same in every substantive context.23 9 The benefits of uniform rules
are simplicity and depoliticization. Uniform rules are easier for courts,
lawyers, and the public to learn.240 They are depoliticizing, because
they avoid debates over which rules apply in which contexts – debates
that will inevitably entail political judgments.24 1 The main disad-
vantage is that uniform rules may not serve the interests of particular
substantive regulatory schemes. Uniform definitions are inappropriate
for terms like “employee,” a concept that serves different purposes under
the common law, the Fair Labor Standards Act, the Occupational Safety
and Health Act, the Tax Code, and so forth.

242

The “simplicity” advantage of universal rules does not have much
force in the context of sex and gender. Because there are relatively few
contexts left in which the law requires an operative definition of sex or
gender, devising contextual definitions is not an unwieldy legal project.

243

The “depoliticization” argument works against universal definitions.
Because sex and gender identities are deeply controversial, personal, and
important to many people, any attempt at universal definition will be
met with immediate resistance. Even the distinction between sex and
gender, once the pivot point of feminist argument, is controversial.

244

Some on the left would prefer to deconstruct the distinction – following
the views of influential theorist Judith Butler.245 They argue that the
hormonal, genetic, nervous, and morphological aspects of what we call
sex are only about sex because we call them that.246 Some on the right

238 1 have previously analogized legal sex to the property law “metaphor of a bundle of sticks.”

Clarke, Identity and Form, supra note 28, at 829. Rather than thinking of ownership as a right to
a thing, this metaphor suggests it “is a bundle of rights, such as the right to exclude others from the
property, . .. to sell the property, and so forth.” Id. We might similarly think of legal identities as
bundles of rights that can be unbundled. Sex might be unbundled into the right to use certain
restrooms, to have particular occupations, to participate on certain sports teams, and so forth. See
id. at 831-32; see also infra Part III, pp. 945-90.

239 See, e.g., Stephen N. Subrin, The Limitations of Transsubstantive Procedure: An Essay on
Adjusting the “One Size Fits All” Assumption, 87 DENV. U. L. REV. 377, 378 (20-0).

240 Id. at 387.
241 See id. at 387-88.
242 See, e.g., Kristin E. Hickman & Claire A. Hill, Concepts, Categories, and Compliance in the

Regulatory State, 94 MINN. L. REV. 1151, 1179-81 (2010).
243 See infra Part III, pp. 945-90 (listing possible contexts).
244 See supra section I.C.i, pp. 915-21.
245 See JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDEN-

TITY 1-34 (1990).
246 Please forgive me for this oversimplification for the sake of brevity. See, e.g., Judith Butler,

Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, 40
THEATRE J. 519, 522 (1988) (arguing that although sex and gender purport to be natural, they are
both constituted by “tacit collective agreement to perform, produce, and sustain discrete and polar
genders”).

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THEY, THEM, AND THEIRS

would prefer to reconstruct an integrated understanding of sex and gen-
der.247 For example, the Catholic Church views traditional roles for men
and women as natural rather than socially constructed.24 The nuances
of these debates may be altogether lost on the judiciary, which uses the
word “gender” rather than “sex” because the term “sex” sounds sala-
cious. 249 Ultimately, neither the Catholic Church,250 nor the American
Psychological Association,25 1 nor the state of North Carolina252 can set-
tle ideological controversies over sex and gender by defining terms.

Moreover, “there is no logically necessary connection between show-
ing or proving that gender is contingent and achieving any particular
substantive outcome or result. ‘ 253 Some opponents of transgender rights
base their arguments on the premise that there is a distinction between
sex and gender identity.254 They argue sex should be primary.255 Which
definition of sex or gender should matter is a moral or political question.
It cannot be settled with factual arguments.

256

247 Consider the views of the Vatican. See Mary Anne Case, After Gender the Destruction of

Man? The Vatican’s Nightmare Vision of the “Gender Agenda”for Law, 31 PACE L. REV. 802, 803
(20 1) (“For the last several decades, the English word ‘gender’ has been anathema to the Vatican

and those seeking to influence secular law and policy throughout the world on its behalf.”).
248 The Church’s reasons include opposition to “ideologies which, for example, call into question

the family, in its natural two-parent structure of mother and father, and make homosexuality and
heterosexuality virtually equivalent, in a new model of polymorphous sexuality.” Id. at 806-07
(quoting Letter from Joseph Cardinal Ratzinger, Prefect, Congregation for the Doctrine of the Faith,
to the Bishops of the Catholic Church on the Collaboration of Men and Women in the Church and
in the World (May 31, 2004), http://www.vatican.va/roman-curia/congregations/cfaith/documents/
rc con cfaith doc 20040731 collaboration en.html [https:Hperma.cc/7J5 R-NNAX]).

249 In a now-famous story, then-lawyer Ruth Bader Ginsburg began using the term “gender”
rather than “sex” in the 197os, after her assistant pointed out that judges would be distracted by

seeing the term “sex” in legal briefs. For a colorful retelling, listen to More Perfect: Sex Appeal,
WNYC STUDIOS (Nov. 23, 2017), https://www.wnycstudios.org/story/sex-appeal/ [https:Hperma.cc/

94 6D-BR 3J].
250 See Case, supra note 247, at 806-07.
251 See AM. PSYCHOLOGICAL ASS’N, DEFINITIONS RELATED TO SEXUAL ORIENTATION

AND GENDER DIVERSITY IN APA DOCUMENTS (2015), https://www.apa.org/pi/lgbt/resources/
sexuality-definitions.pdf [https:Hperma.cc/CEA8-CWHH] (adopting progressive definitions).

252 See Public Facilities Privacy & Security Act, 2o6 N.C. Sess. Laws 3, § 1.3 (defining “biolog-
ical sex” as “male” or “female”), repealed by 2017 N.C. Sess. Laws 4, § 1.

253 Shannon Minter, Why Gender Theory Should Not Determine Transgender Advocacy 13
(2010) (unpublished manuscript) (on file with the Harvard Law School Library).

254 See, e.g., Boyden v. Conlin, No. 17-cv-264, 2018 WL 4473347, at *4 (W.D. Wis. Sept. ‘8, 2018)
(discussing the argument of opponents of health insurance coverage for transition-related care that
“sex is immutable, whereas gender identity is a developmental process”); WoLF Letter, supra note
213, at 2 (opposing nonbinary recognition on the ground that “[s]ex and ‘gender’ are distinct con-
cepts” and arguing the law should only recognize sex).

255 WoLF Letter, supra note 213, at 2-4.
256 See David B. Cruz, Essay, Getting Sex “Right”: Heteronormativity and Biologism in Trans

and Intersex Marriage Litigation and Scholarship, -8 DUKE J. GENDER L. & POL’Y 203, 217
(2010) (“It misdirects our focus, to someone’s political detriment, to appeal to the natural or to ‘the
facts’ of sex (as proclaimed by medical practitioners) as the basis for what are really political judg-
ments about what identities and relationships to recognize.”); Robin Dembroff, Real Talk on the

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Conversation might be facilitated by careful examination of the in-
terests at stake in each potential area of sex or gender regulation.

257

Whether sex or gender should be defined based on genetics, hormones,
morphology, physiology, psychology, elective choice, documentary evi-
dence such as birth certificates, public perceptions, something else, or
not at all – is a difficult question to answer in general.258 The answer
may be different if the law’s purpose is to forbid discrimination, express
respect for a person’s identity, ensure accurate medical records, create fair
divisions in sporting events, provide affirmative action for people disad-
vantaged by male dominance, or some mix of these goals. Meanings
may change over time. Rather than attempting to settle questions once
and for all, contextualized definitions might create opportunities for var-
ious constituencies to argue about what is at stake in each context of sex
or gender regulation. To be sure, one danger of contextual analysis is
that its results are contestable. Decisionmakers may ultimately priori-
tize interests in different ways and arrive at different outcomes.259 But
a particularized approach may create opportunities for discussion about
nonbinary gender rights that are not foreclosed at the outset by ideolog-
ical or theoretical disagreements about the meaning of sex or gender.

2 60

B. Regulatory Models for Nonbinary Gender Rights

Discussions of nonbinary gender rights are often stifled by the as-
sumption that those rights must always take the form of gender neutral-
ity or, alternatively, that the law must always recognize a third gender.

Metaphysics of Gender 1-2 (May 15, 2017) (unpublished manuscript) (on file with the Harvard Law
School Library).

257 But see Talia Mae Bettcher, Trans Women and the Meaning of “Woman,” in THE PHILOSO-
PHY OF SEX: CONTEMPORARY READINGS 233, 243 (Nicholas Power et al. eds., 6th ed. 2013)
(objecting to context-specific definitions of who is a woman because they mean that there could be
contexts in which a trans woman’s claims to being a woman might be false, while, on the author’s
alternative “multiple-meaning view, a trans woman can say that she is a woman in all legitimate
contexts because those contexts in which she is not a woman occur in a dominant culture” with a
view of gender that she rejects on philosophical grounds). While this Article assumes that people’s
gender identities are what they say they are, it does not begin from the premise that there could
never be a context in which the law might legitimately offer definitions based on something other
than self-identification. Instead, it examines each legal context.

258 See, e.g., Clarke, Identity and Form, supra note 28, at 760, 763-64, 792-99 (discussing alter-
native legal definitions of “sex”).

259 This objection is roughly analogous to a line of criticism of balancing tests in constitutional
law. See, e.g., T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J.
943, 982 (1987) (arguing that balancing approaches to constitutional law are problematic because,
among other reasons, “[n]o system of identification, evaluation, and comparison of interests has
been developed”).

260 Consider, for example, how some advocates of policies to address climate change have over-
come polarization by framing discussions around individual legal or policy questions on a micro
level. Hari M. Osofsky & Jacqueline Peel, Energy Partisanship, 65 EMORY L.J. 695, 70 1- 02 (2oi6)
(discussing research from psychology that explains why political polarization makes solutions to
climate change at the federal legislative level impossible and proposing that change proceed locally
by building consensus on specific proposals).

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Rather than advocating either of these options as the best fit for nonbi-
nary gender rights, this section describes potential upsides and down-
sides of each model. It proposes that there are variations on these mod-
els, and combinations of the two approaches, that might best fit different
circumstances. There is also a third option: integrating nonbinary peo-
ple into binary sex or gender regulations, but tailoring the definition of
“sex” or “gender” so as to best fulfill the purposes of the regulation, while
respecting every person’s gender identity to the extent possible.

i. Third-Gender Recognition. – A recognition model would provide
a third option to better reflect the lived experiences of people who do
not check the M or F boxes. This model has the potential upsides of
conferring legal dignity and protection, as well as facilitating affirmative
efforts at inclusion and accommodation. But recognition also has po-
tential downsides: the forms of gender identity the law can recognize are
limited. Additionally, a third legal option may generate backlash, rein-
force stereotypes about the third category, and domesticate the radical
potential of nonbinary gender.

A first potential benefit of third-gender recognition is in conferring
legal status and protection. A recognition model responds to concerns
about disbelief, disrespect, and disregard of nonbinary people. Recog-
nition legitimates nonbinary identity as a “civil status”; in other words,
it affirms the “position of a person within the legal system.’ 261 By giving
legal imprimatur to nonbinary gender, on par with the gender identities
of men and women, recognition expresses the civil equivalence of non-
binary identities. Legal recognition may serve as a shield, giving non-
binary people authority in their demands for fair treatment from public
and private actors.

Another advantage of recognition is that it might facilitate projects
that see nonbinary gender as an aspect of organizational diversity that
should be sought after. Recognition can facilitate the collection of data
and information on the nonbinary population to identify problems and
challenges people with nonbinary gender identities commonly face, as
with the U.S. Transgender Survey. It might entail a right to affirmative
changes in policy to accommodate nonbinary gender identities. The
concept of “reasonable accommodation” found in disability law is a type

261 Press Release No. 95/2017, Bundesverfassungsgericht, Civil Status Law Must Allow a

Third Gender Option (Nov. 8, 2017), https://www.bundesverfassungsgericht.de/SharedDocs/
Pressemitteilungen/EN/2017/bvg’7-095.html [https://perma.cc/F5 HP-MP8G] (describing an order
of the First Senate of the German Federal Constitutional Court recognizing the right to registration
of a “diverse” gender other than male or female); Peter Dunne & Jule Mulder, Developments, Be-
yond the Binary: Towards a Third Sex Category in Germany?, 19 GERMAN L.J. 627, 636-37 (2018)
(discussing how the German decision “expressly acknowledges and validates the legitimacy of non-
male and non-female identities,” id. at 637).

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of recognition.262 On this theory, institutions must make reasonable ad-
justments to their policies and practices to accommodate people with
disabilities. 263 When a person with a disability requests an accommo-
dation, their employer must engage in an “interactive process” to come
to a solution.

264

Whether the Americans with Disabilities Act 265 (ADA) protects non-
binary gender, as a legal matter, is a complicated question. The ADA
explicitly excludes “gender identity disorders not resulting from physical
impairments.’ 266 But one court has construed this provision “narrowly
to refer to simply the condition of identifying with a different gender,
not to exclude from ADA coverage disabling conditions that persons
who identify with a different gender may have – such as … gender
dysphoria.’ 267 This reasoning could extend to those nonbinary people
with gender dysphoria, but would not cover anyone unwilling or
unable to assert they suffer from a “disabling condition. ‘ 268 Some, but
not all, nonbinary people may have gender dysphoria.269 At present,
U.S. sex discrimination law does not include any right to reasonable

262 See, e.g., 42 U.S.C. § 121 12(b)(5)(A) (2012) (providing that prohibited discrimination includes
“not making reasonable accommodations to the known physical or mental limitations of an other-
wise qualified individual with a disability … unless … the accommodation would impose an un-
due hardship on the operation of the business”).

263 Id.
264 29 C.F.R. § 1630.2(0)(3) (2018) (“To determine the appropriate reasonable accommodation [for

a given employee,] it may be necessary for the [employer] to initiate an informal, interactive process
with the [employee].”).

265 42 U.S.C. §§ 12101-12213.

266 Id. § 122 ii(b)(i). For an argument that this exclusion is a violation of the Constitution’s

Equal Protection Clause, see Kevin M. Barry et al., A Bare Desire to Harm: Transgender People
and the Equal Protection Clause, 57 B.C. L. REV. 507, 551, 557-58 (2o16).

267 Blatt v. Cabela’s Retail, Inc., No. 14-cv-04822, 2017 WL 2178123, at *4 (E.D. Pa. May 18,
2 017). Gender dysphoria is significant distress or impairment resulting from incongruence between
one’s gender identity and one’s assigned sex. Id. at *2 & n.i. The Trump Administration agrees
that the ADA covers gender dysphoria when it results from a “physical impairment.” Statement of
Interest of the United States of America at 3, Doe v. Arrisi, No. i6-cv-o8640 (D.N.J. July 17, 2017).

268 Blatt, 2017 WL 2178123, at *3-4 (concluding that the plaintiff’s gender dysphoria was a dis-
ability because it “substantially limits her major life activities of interacting with others, reproduc-
ing, and social and occupational functioning,” id. at *4). One concern may be that disability law
pathologizes transgender identity. But see Kevin Barry & Jennifer Levi, Blatt v. Cabela’s Retail, Inc.
and a New Pathfor Transgender Rights, 127 YALE L.J.F. 373, 386 (2017) (“This concern ignores the
distinction between transgender identity and gender dysphoria. Transgender identity is not a med-
ical condition. Gender dysphoria, on the other hand, is a medical condition; it is real, serious, and
physically incapacitating, and often can only be ameliorated by medical care.” (footnote omitted)).

269 In 2013, the American Psychiatric Association’s Diagnostic Statistical Manual updated the
definition of “[g]ender dysphoria,” to “reflect[] a change in conceptualization of the disorder’s defin-
ing features by emphasizing the phenomenon of ‘gender incongruence’ rather than cross-gender
identification per se.” AM. PSYCHIATRIC ASS’N, HIGHLIGHTS OF CHANGES FROM DSM-IV-
TR TO DSM-5, at 14 (2013). It clarifies: “The experienced gender incongruence and resulting gen-

der dysphoria may take many forms.” Id.

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THEY, THEM, AND THEIRS

accommodation.270 Whether or not the letter of the law applies, nonbi-
nary people might make arguments for institutional inclusion that sound
in the theory of reasonable accommodation: sometimes equality requires
affirmative changes in structures and rules.

However, the recognition model also has potential drawbacks. One
is that recognition may be purely expressive, amounting to lip service to
nonbinary gender that does not disturb existing institutional arrangements
that work to the advantage of the binary majority. Recognition does
not always entail accommodation. For example, recognition could mean
that a university includes “nonbinary” as an optional sex designation in
its official records but does no work to educate staff or students about
nonbinary gender identities, fails to respond to complaints of harassment
from nonbinary students, and maintains only single-sex dormitories.

Additionally, precisely because it expresses the legitimacy of nonbi-
nary gender identities, recognition may incur political backlash from
those who are invested in maintaining binary gender. As new identities
make claims for recognition, they are also met with resistance from those
fatigued by identity politics in general.27 1 To the extent that recognition
is perceived to entail costly accommodations, it may incur all the more
resistance.

27 2

Moreover, adding an X option to M and F does not confer dignity
on every gender identity; it only expands the list of legal sex classifica-
tions to three. The X designation may be a poor fit for those people
who regard their gender identities as hybrids of M and F, altogether
absent, or subversive. Conceivably, sex designations could be a blank
form field, allowing people to choose whatever gender descriptor they
might prefer, as on social media websites.27 3 But in the law, infinite
variation can be a problem. On the principle of numerus clausus, the
law sometimes limits the types of social forms that will be legally recog-
nized because third parties have an interest in understanding legal
claims.27 4 To the extent that there are third-party interests in under-
standing someone’s sex or gender identity, it may be impossible to

270 This is relevant assuming that sex discrimination includes discrimination against someone for
having a nonbinary gender identity. See supra p. 924.

271 See, e.g., Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 794 (2oii).
272 See, e.g., Michelle A. Travis, Lashing Back at the ADA Backlash: How the Americans with

Disabilities Act Benefits Americans Without Disabilities, 76 TENN. L. REV. 311, 31-1-12 (2009)
(identifying a “socio-legal backlash,” for which “[a] primary target… has been the ADA’s accom-
modation mandate”).

273 See, e.g., Facebook Diversity, supra note 45.
274 See Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property:

The Numerus Clausus Principle, iio YALE L.J. i, 4 (2000). This is the case in property law, where
a limited number of types of ownership are recognized. Id. In other instances, such as in contract
law, the law enforces a nearly unlimited variety of forms of private agreements. Id. at 3. For
applications of this theory to sex and gender, see Clarke, Identity and Form, supra note 28, at 769;
and Katyal, supra note 28.

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recognize an unlimited variety of identities. Many fill-in-the-blank gen-
der identities are unlikely to have widespread social understanding or
may be misunderstood.

By identifying a third gender, the recognition model also runs the
risk of reinforcing new stereotypes, exclusionary categories, and stigma-
tizing practices. The X category may come to stand for a new “package”
of gender stereotypes, rather than opening space for a diversity of gender
identities.27 5 Authorities may end up policing who is and is not a legit-
imate member of the third category. The history of racial categorization
demonstrates that the addition of new categories can be in the service
of subordination rather than liberation.27 6 Even if it is freely chosen,
the X may come to mark stigma. In those cultures that recognize third
genders, the third-gender category is usually subordinate.

27 7

A recognition model also risks domesticating nonbinary identity, in
the way that queer theorists expressed concern that marriage would do-
mesticate LGB people, blunting the edge of radical critiques of norma-
tive sexualities.27 Integration of nonbinary people into a third category
may remove the pressure to eliminate the state’s power to impose legal
sex classifications.27 9 But whether this is likely to be true in a given
context is an empirical question. Social movements might pursue recog-
nition as a stopgap strategy, while keeping more radical goals as long-
term aspirations. Or they might pursue limited forms of recognition in
some contexts and make more radical demands for sex or gender neu-
trality in others.

2. Sex or Gender Neutrality. – An alternative legal strategy is sex
or gender neutrality. The term “gender neutrality” has long generated
confusion.2 0 One question is what aspects of sex or gender the law
should treat neutrally. Another question is how neutrality is to be
achieved. Neutrality is unlikely to mean enforced androgyny. Rather,
the law might insist on masking gendered characteristics in certain con-
texts, eliminating rules that classify by sex, or decoupling certain traits

275 See Mary Anne Case, Unpacking Package Deals: Separate Spheres Are Not the Answer, 75
DENV. U. L. REV. 1305, 13o6 (1998).

276 Professor Mary Anne Case offers the example of “the ever finer slicing of racial classifications

from Black and White to quadroon and octoroon in antebellum Louisiana, or the distinction be-

tween Black, White, and Colored in South African apartheid law.” Case, supra note 25, at 15 n.35.
277 See, e.g., S.F. Ahmed et al., Review, Intersex and Gender Assignment; The Third Way?, 89

ARCHIVES OF DISEASE IN CHILDHOOD 847, 848 (2004). But see Gilden, supra note 236, at 122-
23 (describing the “high status granted to gender variant individuals” in some Native American
communities, id. at 123).

278 See, e.g., MICHAEL WARNER, THE TROUBLE WITH NORMAL: SEX, POLITICS, AND THE

ETHICS OF QUEER LIFE 84-116 (999); Katherine M. Franke, Commentary, The Domesticated
Liberty of Lawrence v. Texas, 104 COLUM. L. REV. 1399, 1400-01 (2004).

279 Cf Currah, supra note 164, at 445-46 (discussing an analogous debate with respect to rights

for transgender men and transgender women).
280 See, e.g., Joan C. Williams, Deconstructing Gender, 87 MICH. L. REV. 797, 837-38 (1989).

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THEY, THEM, AND THEIRS

from sex classifications. Alternatively, it might follow the nonendorse-
ment or pluralism strands of the law’s treatment of religion.

One view is that the law should be neutral not only with respect to
sex, in the physical sense of that term, but also with respect to gender,
in the social sense of masculinity and femininity.2 l This would mean
abolition of gender – the old radical feminist dream of an androgynous
or unisex society.2 2 But ending gender is a troublesome legal project,
for theoretical and practical reasons.2 3 As a matter of theory – what
would it mean to end gender? Would it mean no one could wear frilly
dresses or suits and ties?28 4 Would it mean jobs like firefighting, which
prize traditionally masculine traits, like risk-taking and physical
strength, must be restructured to give equal weight to traditionally fem-
inine traits, like caretaking and gentleness?2 5 As a practical matter, this
version of “gender neutrality” would be difficult to implement and likely
to encounter political resistance. The idea that law could eradicate so-
cial practices like race or gender, even if it tried, is questionable.

2 6

Whatever the virtues of gender abolition might be, the idea is unlikely
to catch on in a culture in which gender remains a source of meaning
and identity for many people, including many transgender men,
transgender women, and nonbinary people.

Alternatively, gender neutrality might attempt a project of lesser am-
bition. It might aim not to eradicate gender across the board, but to
“mask” gendered social characteristics in certain contexts, as in the fa-
mous orchestra auditions study in which aspiring musicians played be-
hind a curtain so that the judges could not guess their sexes or gender

281 Psychologists have devised measures for determining what traits are gendered in this social

sense, such as the Bern Sex Role Inventory, which report the results of surveys about whether par-
ticular traits, behaviors, or characteristics are desirable in men or women. See, e.g., Andrew P.
Smiler & Marina Epstein, Measuring Gender. Options and Issues, in i HANDBOOK OF GENDER
RESEARCH IN PSYCHOLOGY 133, 134 (Joan C. Chrisler & Donald R. McCreary eds., 201o). No-
tably, these surveys allow masculinity and femininity to be assessed independently; individuals may
be high in both male and female traits or low in both. See id.

282 See supra p. gi6.
283 See YURACKO, supra note 30, at 144.
284 See JULIA SERANO, EXCLUDED: MAKING FEMINIST AND QUEER MOVEMENTS MORE

INCLUSIVE 128 (2013) (“What exactly is the ‘end of gender’? What does it look like? Are there
words to describe male and female bodies at the end of gender? Or do we purge all words that
refer to male- or female-specific body parts and reproductive functions for fear that they will rein-

force gender distinctions? Do we do away with activities such as sports, sewing, shaving, cooking,
fixing cars, taking care of children, and of course, man-on-top-woman-on-bottom penetration sex,
because these have been too closely associated with traditional masculine and feminine roles in the
past? What clothes do we wear at the end of gender?”).

285 See YURACKO, supra note 30, at 146-48. Or would it mean somehow attempting to delink
these stereotypical traits from gender?

286 Antidiscrimination law has more moderate ambitions: to intervene in particular social prac-
tices that uphold racialized, gendered, or otherwise problematic hierarchies. See, e.g., Robert Post,
I998-99 Brennan Center Symposium Lecture, Prejudicial Appearances: The Logic of American An-
tidiscrimination Law, 88 CALIF. L. REV. i, 17 (2000).

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identities, and as a result, more women ended up being selected.2 7 This
approach might aim to protect privacy in addition to ensuring equality.

Another limited form of neutrality is anticlassification. Rather than
insisting that the law neuter society, this variation on neutrality would
insist that legal rules stop classifying people based on sex.288 Rather
than adding a third-gender option to identity forms, this approach might
mean eliminating the sex category altogether from official documents.
It would mean treating sex more like race, which was once, but is no
longer, a classification listed on the face of birth certificates2 9 and a
mode of segregating restrooms. Eliminating classifications makes it
more difficult for governments and others “to locate and persecute mem-
bers of stigmatized groups.

‘290

Yet another approach is decoupling. Neutrality might mean decou-
pling traits or characteristics associated with men or women from sex.
To give another musical example, an a cappella group might limit its
members to those with tenor, baritone, or bass voices, rather than to
men only.291 Family law rules might define their beneficiaries in terms
of the category of “primary caretakers,” who could be mothers, fathers,
or parents with nonbinary gender identities, rather than limiting their
benefits to mothers.292 Or a sports team might limit players to those
with low levels of testosterone, rather than women per se.

293

Thus, these limited forms of sex neutrality may reduce discrimina-
tion against nonbinary people. But sex neutrality may also have ad-
vantages for other transgender and gender- nonconforming people, and
for society as a whole. One is that sex neutrality avoids the need for

287 See Claudia Goldin & Cecilia Rouse, Orchestrating Impartiality: The Impact of “Blind” Au-
ditions on Female Musicians, go AM. ECON. REV. 715, 715-16 (2000).

288 See HEATH FOGG DAVIS, BEYOND TRANS: DOES GENDER MATTER? io (2017) (arguing

that “[t]he administrative discretion to decide who is female and who is male is the essence” of a
harmful type of sex discrimination that the author terms “sex identity discrimination”); Tomchin,
supra note 159, at 861 (arguing that “legal sex classification … – which hurts so many – should
be eliminated, much like the formerly ubiquitous system of legal racial classification,” but not pro-
posing “gender-blindness,” which, “like race-blindness, would harm those who are most impacted
by discrimination”).

289 Racial data are still collected. See Clarke, Identity and Form, supra note 28, at Soo.
290 Laurie Shrage, Does the Government Need to Know Your Sex?, 20 J. POL. PHIL. 225, 228

(2012).
291 See Pat Eaton-Robb, Poof! Ivy League Glee Club’s Gender Restrictions Disappear,

ASSOCIATED PRESS (Feb. ii, 2oi8), https://www.apnews.com/76974daffade44ed8ii9618f8437fcao
[https:Hperma.cc/7BBA- 7MH8] (“The 14-member Whiffenpoofs, a group formed in igog, will con-
tinue to comprise tenor, baritone and bass voices, and the Whims will continue to be for sopranos
and altos.”).

292 See, e.g., Williams, supra note 280, at 839-40 (“People disadvantaged by gender can be pro-
tected by properly naming the group: in this case, not mothers, but anyone who has eschewed ideal
worker status to fulfill child-care responsibilities.”).

293 See, e.g., Joanna Harper, Athletic Gender, So LAW & CONTEMP. PROBS. 139, 151-53 (2017)
(proposing the concept of “athletic gender,” which would be determined based on testosterone levels
solely for purposes of sporting events and considered distinct from one’s gender identity).

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gender policing, which can be degrading and humiliating. Professor
Heath Fogg Davis offers the example of the “male” and “female” stickers
that the Southeastern Pennsylvania Transportation Authority insisted
on affixing to bus passes up until 2013.294 As a result of the stickers,
many gender-nonconforming people were refused rides, harassed, hu-
miliated, or had their passes confiscated.295 This included both people
who self-identified as LGBT and those who did not, such as younger
and older people with more androgynous appearances.296 Gender po-
licing is often based on definitions of masculinity and femininity in-
flected with classism and racism.2 97 A second set of advantages is ex-
pressive. Sex segregation may reflect archaic or confining stereotypes
about men and women. Its unquestioned use sends the message that
sex is a primary and important way of dividing people into groups.2 98

It also suggests one’s sex is, and should be, a public matter or one left
to the government.299 A third advantage is practical: as with the a cap-
pella example, it is possible that the best baritone is not a man. Confin-
ing the group to men means that the group may not include the best
voices.

But even limited forms of sex neutrality have drawbacks. The anti-
classification strand in race discrimination law is often faulted for failing
to redress covert or implicit biases, disparate impacts, and structural
inequalities.3 0 0 These same criticisms are leveled at contemporary sex
discrimination doctrine. Neutrality may be in name only. Neutral rules
may have the purpose or effect of classifying based on traditional notions
of sex, for example, if testosterone testing is intended to (or widely be-
lieved to) preserve women’s sports for “real women.’ 30 1 In practice,

294 DAVIS, supra note 288, at 2. The purported purpose of these stickers was to stop husbands
and wives from sharing monthly bus passes. Id. at 2-3.

295 Id. at 3 (describing “the widespread harm done by the stickers” to “people who self-identified

as transgender and those who did not, as well as… riders who self-identified as queer and those
who did not”).

296 Id. at 5-6.
297 See, e.g., id. at 30.
298 Cf. id. at 14 (“We are asked to tick binary sex boxes on myriad bureaucratic forms ranging

from school, job, mortgage, and apartment rental applications to government census forms, dental
and medical intake questionnaires, online dating sites, social media and marketing surveys, and on
and on.”).

299 Cf Robin Dembroff, The Nonbinary Gender Trap, N.Y. REV. BOOKS (Jan. 30, 2018, 7:00
AM), http://www.nybooks.com/daily/2018/0i/3o/the-nonbinary-gender-trap/ [https:Hperma.cc/
DRV6-GTJF] (“For me, adding ‘nonbinary’ to the list of legal gender options does not address the
core problem: any legal system that requires a person to record their gender perpetuates government
control over our bodies and identities.”).

300 See, e.g., Neil Gotanda, A Critique of “Our Constitution is Color-Blind,” 44 STAN. L. REV. I,
68 (i99i); Reva B. Siegel, Discrimination in the Eyes of the Law: How “Color Blindness” Discourse
Disrupts and Rationalizes Social Stratification, 88 CALIF. L. REV. 77, 84-107 (2000).

301 Cf. Katrina Karkazis & Morgan Carpenter, Impossible “Choices”: The Inherent Harms of
Regulating Women’s Testosterone in Sport, J. BIOETHICAL INQUIRY 3 (Aug. i6, 2oi8), https:/

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supposedly neutral baselines often favor those who adopt traditionally
male life patterns. Feminists have long argued that in workplace and
family law, the sex-blind approach can result in rules tailored for the
“ideal worker” who needs no flexibility because he is supported at home
by a caretaking partner.30 2 While women could theoretically meet the
“ideal worker” standard, they rarely do because of the prevalence of
gender roles. Moreover, a rule against all sex classifications could sweep
away not only those classifications that perpetuate subordination, but
also those designed to remedy it.303 For example, some legal rules might
give women favorable treatment.30 4 To impose “neutrality” might mean
“leveling down” by holding women to the same inhumane standards as
men, rather than “leveling up” to give men the same humane treatment
as women.

30 5

Another version of the neutrality model would draw on religious
freedom for support, employing concepts such as nonendorsement and
pluralism.30 6 Such a model might protect a panoply of beliefs about
gender identity, just as the First Amendment protects a wide array of
religious beliefs without endorsing any particular set of beliefs. For pur-
poses of this Article, I will refer to pluralism strategies as those in which
a sex or gender neutral option is created alongside a sex or gender seg-
regated one. In practice, however, the neutral category may end up
indistinguishable from a third-gender one, incurring all the disad-
vantages of third-gender recognition, such as the possibility of stereo-
typing and stigmatization. Moreover, a pluralism model invites objec-
tions from those with religious commitments to traditional, binary

link.springer.com/article/io o.1007/s-1-673-0 I8-9876-3 [https:Hperma.cc/2ETP-QWPX] (arguing that
even a testosterone rule that states that it does not intend to question a competitor’s sex can “mete
out both suspicion and judgment on the sex and gender identity of the athletes regulated”).

302 JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND

WHAT TO Do ABOUT IT 2 (2000); see also, e.g., id. at 1-3.
303 See, e.g., CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN

117 (1979) (proposing an alternative approach to sex classifications that would ask “whether the
policy or practice in question integrally contributes to the maintenance of an underclass or a de-
prived position because of gender status”).

304 See, e.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1689-93 (2017) (scrutinizing an immi-

gration rule that gave favorable treatment to the children of unmarried citizen mothers over those

of unmarried citizen fathers).
305 See id. at 1701 (selecting leveling down as a remedy to apply the same harsh standard whether

the child’s U.S. citizen parent was their mother or father).
306 See David B. Cruz, Disestablishing Sex and Gender, 90 CALIF. L. REV. 997, 1005, 1040

(2002) (discussing the analogy to religious freedom and describing how U.S. law’s neutrality, non-
preferentialism, and nonendorsement approaches to religion could be translated to sex and gender);
Katyal, supra note 28, at 477 (advocating “gender pluralism as a replacement for the binary
system” that would “demonopolize the classificatory power of the state in determining sex or gender
identity”).

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THEY, THEM, AND THEIRS

notions of sex, who will argue that their interests should win out over
the interests of gender nonconformists when in competition.

3 0 7

3. Integration into Binary Sex or Gender Regulation. – A final
approach to nonbinary gender rights would be to integrate nonbinary
people into binary sex or gender regulations, while tailoring the defini-
tion of “sex” or “gender” so as to best fulfill the purposes of each legal
rule, and respecting every person’s gender identity, to the extent possi-
ble.30 8 This approach would ask what interests sex segregation serves,
and whether the definition of sex or gender used is tailored to meet that
interest.30 9 For example, if a program sought to increase gender diver-
sity in a traditional, male-dominated workplace, it might define its ben-
eficiaries as not just “women,” but also “people who do not identify ex-
clusively as male and LGBT people.’ 310 The advantage of this
approach is that it may be the least disruptive to binary structures that
would require time and money to change, such as physical or digital
architectures, and so it might serve as a stopgap or compromise solution
as regulators consider recognition and neutrality approaches. But inte-
gration strategies have all the drawbacks of third-gender recognition. In
addition, they are likely to shoehorn nonbinary people into misfit cate-
gories at the expense of gender self-determination.

Rather than being faced with a choice between third-gender recog-
nition and gender neutrality, the law offers an array of options for the
protection of nonbinary gender identities. Determining which legal
model is optimal requires investigation of the interests at stake in binary
sex or gender, and will therefore depend on context. Any definition of
sex or gender should be tailored to serve the purposes of regulation.

III. LEGAL INTERESTS IN BINARY SEX OR GENDER?

This Part responds to the claim that nonbinary gender rights would
upset a host of legal interests that are ostensibly advanced by maintain-
ing a single, uniform system of binary sex classification.3 11 Nonbinary
rights would have implications for the law with respect to identification
documents, antidiscrimination, and sex-segregated physical spaces and

307 For an example of these arguments in the sexual orientation context, see Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Commission, 38 S. Ct. I719, 1724 (2018).

308 This integration strategy differs from the decoupling strategy described above only in that

there is no formal attempt at neutrality – it uses binary categories that are explicitly about sex or
gender.

309 See supra section ILA, pp. 933-36.
310 See infra section III.B.i, pp. 952-54.
311 See supra p. 903.

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activities. 3 12 These domains have also been sites of contestation for
transgender people seeking recognition as men and women. It is often
assumed that nonbinary people only complicate and heighten these chal-
lenges. But that assumption may be based on unquestioned premises
about the need for binary categories and simplistic ideas about the legal
options for advancing nonbinary gender rights.

This Part rebuts the argument that nonbinary gender rights would
upset some foundational premise of the legal order, with unforeseen
and catastrophic results. Rather than being a universal ordering prin-
ciple, legal sex and gender classifications are diminishing and excep-
tional. A careful look at the remaining contexts in which the law regu-
lates sex and gender reveals no abiding and universal interest in binary
classification. Rather, it shows that the purported interests binary clas-
sifications serve are variable and context dependent. These interests
might include protecting conventionally gendered ideas of privacy or
safety; facilitating easy identification; preserving free speech; providing
opportunities for women; collecting relevant data; creating educational,
athletic, or health care programs tailored toward the needs of specific
populations defined by sex or gender; or avoiding the costs of transition.
This Part argues that in most instances, these interests are weak or un-
substantiated, or they can be accommodated, if not better served, by one
of the regulatory approaches to nonbinary gender rights discussed in
Part II: neutrality, recognition, or integration.

This Part builds from the premise that in most every context of sex
or gender regulation, the law should recognize self-determination with
respect to someone’s gender identity as a man or woman.3 13 It also takes
for granted that nonbinary genders deserve the same legal status as bi-
nary ones, rather than making that case on abstract grounds.314 It asks
how the assumption that nonbinary gender identities should be accorded
the same status as male and female gender identities would transform
legal debates. It offers tentative conclusions on the best regulatory
model for nonbinary gender rights in each context, considering how non-
binary rights claims might converge and diverge with those of other
identity-based movements, including feminist and other LGBT inter-
ests. These conclusions reflect political judgments about how to priori-
tize the various interests at stake in each context. There is room for
reasonable disagreement with my particular conclusions as to the best
approach in each case. But my overall argument does not depend on
the outcomes of these fine-grained legal debates. Rather, I aim to show
that legal regimes that rely on binary sex or gender classification are

312 While my main focus is on legal rules, at points this discussion also considers how nongov-

ernmental institutions might revise their rules and procedures to take nonbinary gender identities
seriously. For detailed advice on how to conduct a “gender audit” to “make [an] organization[] more
inclusive of people with diverse sex identities,” see DAVIS, supra note 288, at 151.

313 See supra note 42 and accompanying text.
314 See supra note 43 and accompanying text.

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THEY, THEM, AND THEIRS

exceptional, not inevitable, and not a reason to resist the larger project
of nonbinary gender rights.

A. Identification

One argument often raised against nonbinary inclusion is that it will
render efforts at identification and surveillance by law enforcement
more difficult. This argument has long been made with respect to any
changes to official sex markers, even from M to F or F to M. 3 15 But the
argument takes new forms with respect to nonbinary gender, which
would also require the recognition of an X category or, alternatively, the
elimination of any sex or gender markers altogether. The question is,
does law enforcement need binary M and F sex markers to identify peo-
ple, determine police or emergency response, or track crimes?316 Third-
gender recognition is the best option in this context, at least at present.

Those who assert the importance of binary gender markers for iden-
tification documents do not explain why law enforcement needs those
markers in addition to photographs.3 17 In Zzyym v. Pompeo,3 18 the court
concluded that the State Department’s policy of requiring an applicant
to mark either M or F on a passport application was arbitrary and ca-
pricious.319 Not all law enforcement databases include sex or gender
designations, and in the case of transgender individuals, the designations
in various databases may already conflict. 320 The “identity fraud” ar-
gument – that criminals will change their gender markers so that their
names do not come up in law enforcement databases – is not a unique
problem with recognizing nonbinary gender; it is a problem with any
system that allows corrections to gender markers. The State Department
already allows sex marker corrections between M and F, without proof
of surgery.32 1 Moreover, fraud concerns are dubious considering the

315 See, e.g., Lisa A. 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. 373,413-I5 (2013).

316 See WoLF Letter, supra note 213, at 2 (arguing that the government has “legitimate interests
in recording and maintaining accurate information about its residents’ sex, for purposes of identi-
fication, tracking crimes,… and determining the appropriate emergency medical and police

services”).
317 Even if photographs can be tampered with, those seeking to commit fraud can tamper with

the gender marker as well, or can simply find false passports with M or F markers that match their
own appearances. Facial recognition and other biometric forms of identification are better tailored
to address fraud concerns.

318 No. i5-cv-02362, 2018 WL 4491434 (D. Colo. Sept. I9, 2018).

319 Id. at *i. Zzyym brought suit under the Administrative Procedure Act, which disallows

agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 7o6(2)(A) (2012).

320 See Zzyym, 2018 WL 4491434, at *6 (noting that a passport holder’s identity could be verified

without checking the gender designation because databases include “other fields” such as “social
security number, date of birth, name, etc.”).

321 Mottet, supra note 315, at 415.

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number of other countries, including Australia, New Zealand, and India,
that have managed nonbinary markers without apparent incident.

3 22

The United States accepts passports from these countries with nonbi-
nary gender markers.323 The International Civil Aviation Organization,
the UN agency that sets international standards for machine-readable
passports, has long allowed “X” as a sex marker for “unspecified.’3 24 As
Judge Jackson put it during a hearing in the Zzyym case, “I’ll bet you
that if the State Department rethought its policy and decided to accept
the X designation, the sun would still come up tomorrow.

325

Another version of this argument might be that law enforcement and
emergency services routinely use binary gender identifiers to visually
identify crime suspects and people in need of assistance.326 But author-
ities may use any number of descriptors for these purposes, not just per-
ceived sex or gender presentation, but also race, age, height, weight, and
other identifying features. Under equal protection doctrine, this limited
use of visually identifying features, even racial ones, is widely regarded
as permissible.327 It is therefore implausible that recognition of nonbi-
nary gender rights would invalidate the use of perceived gendered char-
acteristics for purposes of visual identifications. Nor should it.

Opponents of nonbinary gender recognition have also expressed the
worry that it would skew crime statistics, obscuring the fact that men
commit more violent crimes than women.328 But considering the
vast disparities in violent crime rates between men and women, the
number of criminals likely to identify as nonbinary is too small to have
this effect.

329

322 See Zzyym Transcript, supra note 139, at 37. The lawyer from the State Department in Zzyym

was not aware of any evidence that jurisdictions that recognize an X designation had any law
enforcement trouble. Id. at 46.

323 Id. at 35-36 (discussing how the U.S. State Department will permit noncitizens from Australia
to enter the United States with an X designation on their passports, but will not allow citizens of
the United States to leave with an X designation).

324 Int’l Civil Aviation Org. [ICAO], Machine Readable Travel Documents, at 14, ICAO Doc.
9303 (7 th ed. 2015), https://www.icao.int/publications/Documents/9303-P4-cons-en.pdf [https:/
perma.cc/H6DH-LFN4 ] (allowing “F for female, M for male, or X for unspecified”).

325 Zzyym Transcript, supra note 139, at 52.
326 Bela August Walker, Note, The Color of Crime: The Case Against Race-Based Suspect De-

scriptions, 103 COLUM. L. REV. 662, 671 (2003) (“The description of a criminal suspect, whether
created by the victim, an eyewitness, or the police, always begins with race and gender.”).

327 R. Richard Banks, Race-Based Suspect Selection and Colorblind Equal Protection Doctrine
and Discourse, 48 UCLA L. REV. 1075, 1090-95 (2001) (explaining that race-based suspect descrip-
tions have not triggered equal protection scrutiny because “the prevailing approach [is to assume]
that suspect description reliance should never be viewed as a racial classification”). Even if this
were not the case, suspect descriptions might survive the test of strict scrutiny, as narrowly tailored
to achieve a compelling state interest. See id. at 1119.

328 See WoLF Letter, supra note 213, at 4.
329 See id. (citing FBI statistics that men committed 88% of murders in 2015). The Williams

Institute estimates that 0.58% of adults in the United States identify as transgender. FLORES ET
AL., supra note 21, at 3.

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THEY, THEM, AND THEIRS

Recognition of an X designation may have law enforcement benefits.
Some nonbinary people do not consistently appear to others as men or
women.330 A third designation might better match how they are per-
ceived. Providing an X designation might avoid friction from police,
customs, or TSA officers who would otherwise question a person whose
gender identity does not appear to match the designation on their docu-
ments.33 1 This type of friction is administratively costly for law enforce-
ment, leading to unnecessary delays and even wrongful arrests and
detentions. More importantly, it harms nonbinary people and their fam-
ilies, who are forced to reargue their gender identities with officials on
a regular basis.

332

As many have argued, the fact that official documents include sex
designations at all is offensive to the values of self-determination and
privacy, and it reinforces state authority over sex and gender in a trou-
bling way.33 3 An X designation has the potential drawback of allowing
those who would harm nonbinary people to identify targets for violence
and abuse, although I am unaware of any examples in which identity
documents have been used for this purpose.334 At present, there are
good reasons to prefer a recognition model to a neutrality one. Recog-
nition is more politically palatable, it allows the limited collection of sex-
differentiated statistics to continue, and identity documents that reflect
a person’s gender identity offer that person a measure of security and
legitimacy. A partial solution is to make sex designators on identifica-
tion documents optional, giving people the choice to leave them blank,
as New York City does with its identification cards.

335

330 See JAMES ET AL., supra note 2, at 48; supra p. 9o8.
331 See JAMES ET AL., supra note 2, at 89 (reporting that 1o% of nonbinary respondents to the

2015 USTS had been denied services or benefits when the name or gender on their identification
documents did not match their gender presentation).

332 Cal. Assemb. Transp. Hearing, supra note 86 (statement of Jonathan Clay) (discussing how a
nonbinary child’s incorrect ID “always opens us up to all sorts of questions going through security
and other places …. Which is very difficult for my wife and I, because it puts [us] in a role where
we are now having conversations with people, whether it’s security, doctors, other folks. Having
this conversation in a venue that we don’t control, and unfortunately, it typically happens in front
of our child which is also very difficult. Because that identity is very important to them”).

333 See, e.g., Spade, supra note 28, at 738 (“Why is gender identification taken for granted as a
legitimate domain of governance?”); Wipfler, supra note 28, at 492 (“Ultimately,… so long as such
documents include a sex designation field, new and seemingly progressive government policies of
gender inclusivity harmfully reify sex classification.”).

334 This concern was initially raised in litigation over the X designation on U.K. passports, but
dropped when evidence failed to substantiate it. R (on the application of Elan-Cane) v. Sec’y of
State for the Home Dep’t [2o08] EWHC (Admin) 1530 [i6], [82], 2018 WL 03093374. The U.K.
court nonetheless refused to require an X designation on passports pending a “comprehensive re-
view” of the implications of such a change by U.K. authorities. Id. at [124].

335 Wipfler, supra note 28, at 526 (discussing this approach, which has been adopted by a number
of municipalities, but arguing it “still runs the risk of outing those who choose not to include a sex
designation as abnormal if the majority of bearers opt to display their gender”). Another idea would

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One reason the drafters of California’s Gender Recognition Act
opted for the recognition model was because it had been used by the
District of Columbia, Oregon, and countries outside of the United States
without problems.336 Additionally, federal regulations implementing the
REAL ID Act require “gender” designations on identity documents, giv-
ing states discretion to define that term.

33
1

Moreover, the federal government uses birth certificate sex data, just
as it uses data on race, for purposes of collecting public health statis-
tics. 338 Although this is an argument for continuing to collect the data,
it does not suggest that the data must be displayed on the face of the
certificate.33 9 Collection of information on intersex infants and nonbi-
nary gender identities might improve this data by allowing researchers
to study the health of these populations.

3 4 0

Additionally, identity documents with gender designations can act as
shields against discrimination and sources of validation for transgender
people, whether those designations are M, F, or X. Designations that
better match a person’s self-presentation may help avoid difficult and
dangerous conflicts with law enforcement.34 1 Transgender men and

be to design application forms that leave the gender designation blank by default, requiring indi-
viduals who wish to have gender designations to affirmatively select them.

336 Cal. Assemb. Transp. Hearing, supra note 86 (statement of Sen. Toni Atkins) (responding to

the question, “why even have gender or sex on an ID card, or on a driver’s license specifically” with
the answer: “We could go the other route, but we really would then be further out of compliance
with what other countries and states are doing”).

337 6 C.F.R. § 37.17 (201-8) (“To be accepted by a Federal agency for official purposes, REAL ID
driver’s licenses and identification cards must include on the front of the card (unless otherwise
specified below) the following information: . .. (c) Gender, as determined by the State.”).

338 Wipfler, supra note 28, at 539.
339 One scholar has proposed a partial neutrality approach: that the birth certificate provided to

parents not include sex information on its face, but that data about the baby’s phenotypical sex at
birth be collected and sent to the National Center for Health Statistics, to be treated like data on
race and kept confidential. See Elizabeth Reilly, Radical Tweak – Relocating the Power to Assign
Sex, 12 CARDOZO J.L. & GENDER 297, 318 (2005) (proposing that the “sex” field on the birth
certificate be moved from the section on identifying data to the one on “information for medical
and health purposes only”).

340 How sex or gender should be defined depends on the aims of the research. Canada offers one
model. See, e.g., Gender of Person, STAT. CAN. (Jan. 25, 2oi8), http://www23.statcan.gc.ca/imdb/
p3Var.pl?Function=DEC&Id=410445 [https:Hperma.cc/CR2J-XNDM] (urging that users of statis-
tics exercise caution in comparing indicators for sex and gender, as “[s]ex and gender refer to two

different concepts”); Classification of Gender, STAT. CAN. (Jan. 25, 2oi8), http://www23.statcan.
gc.ca/imdb/p3VD.pl?Function=getVD&TVD=467245 [https:Hperma.cc/Q4 SK-EMY8] (providing
options for gender including “Male gender,” “Female gender,” and “Gender diverse”).

341 See Cal. Assemb. Transp. Hearing, supra note 86 (statement of Cecilia Aguiar-Curry, Member,
Assemb. Standing Comm. on Transp.) (“In emergency services, and if someone were to come upon
an automobile accident or something along that, be able to look at someone’s identification and
know that they’re special and may need special handling, that would be really important to me as

a family member.”). Documents alone cannot always overcome prejudice. See DAVIS, supra note
288, at 55 (discussing an incident in which a bouncer harassed a transgender woman in the women’s
restroom, and when she showed him an ID demonstrating she was a woman, he said: “Your ID is

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THEY, THEM, AND THEIRS

women may need readily available documentation to prove they are not
trespassing in sex-segregated spaces like restrooms.342 This may be a
particularly acute concern “[flor low-income trans women of color,” for
whom an “‘accurate’ ID is essential to avoiding harassment or violence,
being turned away for public assistance, or being placed in dangerous
sex-segregated environments in detention facilities and/or homeless
shelters.

343

Identity documents such as passports, driver’s licenses, and birth
certificates can also play a meaningful role in a person’s conception of
self.344 The documentary formalities that recognize nonbinary gender
can legitimate an individual’s claim to that status.345 In recognizing
nonbinary gender, state and local governments express its moral equiv-
alence to male and female gender identities, which may undermine dis-
crimination by delegitimizing arguments that nonbinary identity is not
real or valid.

B. Antidiscrimination Rules

Taking nonbinary gender seriously would entail protection from dis-
crimination and harassment in housing, employment, education, public
accommodations, and other domains.

As an initial matter, some might object that nonbinary identities are
too diverse and amorphous to be included as a “protected class” for pur-
poses of antidiscrimination law. But antidiscrimination law can protect
a diverse array of nonbinary gender identities, just as it protects people
of every race and religion.346 Nondiscrimination rules do not generally
define identity groups with precision; rather, they define prohibited
grounds for discrimination (such as “sex” or “gender identity”).347 The
question in a sex discrimination case is not whether the plaintiff be-
longed to a particular class.3 48 It is whether the plaintiff was mistreated
because of sex. For example, it is sex discrimination for an employer to

neither here nor there”); Wipfler, supra note 28, at 539 (arguing that in the short term, transgender
people need IDs reflecting their gender identities to avoid “gender-probing” and other administra-
tive problems).

342 Wipfler, supra note 28, at 541.
343 Id. at 540 (footnote omitted).
344 See Clarke, Identity and Form, supra note 28, at 792.
345 See, e.g., JAMES ET AL., supra note 2, at 85 (quoting one survey respondent: “As a non-binary

person, not being able to change my gender on any of my identification documents is really dis-
heartening, dysphoria inducing, and kind of dehumanizing. I’m not allowed to be me”).

346 Including atheists. Nancy Leong, Negative Identity, 88 S. CAL. L. REV. 1357, 1402 (2015)

(discussing antidiscrimination protection for atheists).
347 Jessica A. Clarke, Protected Class Gatekeeping, 92 N.Y.U. L. REV. io-, n1o (2017).
348 See id.; see also Cruz, supra note 26, at 278 (“Title VII sex discrimination doctrine … does

not actually confine protection to a limited class of persons and so does not require courts to decide
the sex/gender class to which a plaintiff belongs.”).

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insist that a worker conform to sex stereotypes.3 4 9 In the federal courts,
there is an emerging consensus that discrimination on the ground of
transgender status is a form of sex discrimination because it rests on sex
stereotypes.35 0 This logic extends to discrimination against someone for
not adhering to sex stereotypes that require binary gender identity.

35 1

Those federal, state, and local rules that ban discrimination on the basis
of “gender identity” should cover nonbinary gender identities as well.

35 2

Most of the arguments against prohibiting discrimination against
nonbinary gender identities are no different from the arguments against
prohibiting discrimination against transgender identities in general. But
there are some questions uniquely applicable to extending protection to
nonbinary gender identities, including (i) whether it would eliminate
data collection necessary to identify patterns of sex discrimination, and
relatedly, whether it would eliminate affirmative action for women, (2)
whether it would preclude pregnancy protections, and (3) whether har-
assment law would require the use of unfamiliar pronouns. This section
will discuss these arguments, which apply to antidiscrimination doc-
trines generally. Later sections will discuss arguments that apply spe-
cifically to the operation of antidiscrimination law in particular do-
mains, such as educational programs, the workplace, housing, and
health care.

L Data Collection and Affirmative Action. – With respect to data
and affirmative action, recognition approaches work best.353 Institu-
tions collect information on racial identity, even though some people’s
identities are multiracial and others refuse to state any racial infor-
mation.354 The existence of complicated racial identities does not pre-
clude the enforcement of legal doctrines that depend on statistical un-
derrepresentation of minority groups, despite the fact that a larger
percentage of people identify as multiracial than transgender.355 Neither

349 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion) (“[W]e are
beyond the day when an employer could evaluate employees by assuming or insisting that they
matched the stereotype associated with their group … .

350 See supra note 175.
351 See supra note 176.
352 See supra p. 924.

353 For a discussion of theories of discrimination that rely on statistical patterns, such as “pattern
or practice” and “disparate impact,” and an argument that these theories can work without a con-
cept of the “protected class,” see Clarke, supra note 347, at 173-77.

354 See Lucas, supra note 225, at 1249; Rich, supra note 226, at 549.
355 See FLORES ET AL., supra note 2 1, at 3 (reporting that 0.58% of adults in the United States

identify as transgender); NICHOLAS A. JONES & JUNGMIWHA BULLOCK, U.S. DEP’T OF

COMMERCE, THE Two OR MORE RACES POPULATION: 2010, at 4 tbl.i (2012), https:/www.

census.gov/prod/cen2oi-o/briefs/c2o-obr-13.pdf [https://perma.cc/7 MNL-C2ZA] (reporting that 2.9%
of the population identified as two or more races).

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THEY, THEM, AND THEIRS

should the existence of complicated gender identities be a barrier to col-
lection of information on sex or gender identity.

3 56

As for affirmative action, the Supreme Court has held that Title VII
allows employers to consider an applicant’s sex as a factor pursuant to
an affirmative action plan.3 57 Nonbinary gender and other LGBT iden-
tities can be factors recognized for diversity or affirmative action pro-
grams as well.

3 58

Nor does nonbinary gender throw a wrench into gender-based af-
firmative action programs with numerical requirements.3 59 The recog-
nition that some people’s genders are not binary does not render unad-
ministrable laws that would require, for example, that corporate boards
include one or more self-identified women.3 60 The Democratic National
Committee charter states that all committees “shall be as equally divided
as practicable between men and women (determined by gender self-
identification) meaning that the variance between men and women in
the group cannot exceed one,” and that “gender non-binary delegates…
shall not be counted as either a male or female, and the remainder of

356 Equal Employment Opportunity Commission (EEOC) forms require data on race and sex to

help the Agency identify discriminatory patterns and trends. Camille Gear Rich, Elective Race:
Recognizing Race Discrimination in the Era of Racial Self-Identification, 102 GEO. L.J. 1501, 1520
(2014). At present, these forms include only two options for sex, but multiple options for “Race/
Ethnicity” including “Two or more races.” See Equal Emp’t Opportunity Comm’n, Standard Form
ioo, EMPLOYER INFORMATION REPORT EEO-x (2oo6) https://www.eeoc.gov/employers/
eeoisurvey/upload/eeo -2-2.pdf [https://perma.cc/9 DXU-VPTU]. The rules for racial data collec-
tion prioritize self-determination and privacy. See Rich, supra, at 1520-27. Just as rulemakers give
consideration to whether they are interested in data on race or ethnicity, they can give consideration
to whether they are interested in data on sex, gender identity, or some other trait. See supra note
340 (discussing how Canada’s national statistical agency takes this approach).

357 Johnson v. Transp. Agency, 480 U.S. 6i6, 632 (1987) (allowing consideration of sex as a factor
pursuant to an affirmative action plan designed to eliminate a “manifest imbalance” in a “tradition-
ally segregated job category”).

358 See, e.g., Exec. Order No. 11,246, 3 C.F.R. 339 (964-1965), amended by Exec. Order No.
11,375, 32 Fed. Reg. 14,303 (Oct. -7, 1967), Exec. Order No. 13,672, 79 Fed. Reg. 42,971 (July 21,
2014), reprinted as amended in 42 U.S.C.A. § 2oooe (West 2018) (providing that federal contractors
“will take affirmative action to ensure that applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion, sex, sexual orientation, gender
identity, or national origin”); CAL. PUB. RES. CODE § 2523o(a)(4), (b)(‘) (West 2018) (requiring that
a state commission that administers grants and loans “implement an outreach program” to minority
businesses, including “LGBT business enterprises” defined as those that are “at least 51 percent
owned by a lesbian, gay, bisexual, or transgender person or persons”).

359 These rules may fall outside the ambit of Title VII because Title VII applies only to employ-
ment relationships. They are not subject to constitutional requirements unless they are tied to state

action.
360 See 2018 Cal. Legis. Serv. 954 (S.B. 826) (West) (to be codified at CAL. CORP. CODE §§ 301.3,

2115.5). The question whether any particular gender-based affirmative action policy by a govern-
ment entity will survive constitutional scrutiny has never turned on whether gender is or is not
binary. Cf Ajmel Quereshi, The Forgotten Remedy: A Legal and Theoretical Defense of Intermedi-
ate Scrutiny for Gender-Based Affirmative Action Programs, 2 1 AM. U. J. GENDER SOC. POL’Y &
L. 797, 813-17 (2013) (outlining the various legal tests courts have applied to gender-based affirm-
ative action under the Constitution).

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the delegation shall be equally divided.’ 36 1 Such a rule does not create
incentives to exclude nonbinary people, but neither does it create any
incentives to include them. Policymakers should go further to reconsider
the purposes of these programs and ask whether those purposes might
be better served by rules that aim to affirmatively encourage the inclu-
sion of nonbinary and other LGBT people.

362

2. Pregnancy Protections. – Like transgender men who become
pregnant, nonbinary people may at first seem to pose a challenge to rules
that prohibit discrimination on the basis of pregnancy and related
conditions, or rules that afford accommodations for pregnancy363 or spe-
cial treatment for biological mothers.364 In the pregnancy context, a
decoupling approach works. 3 65 Pregnancy is distinct from gender iden-
tity. People of all gender identities can be pregnant,366 and pregnancy
protections can be neutral as to gender identity. Sometimes such pro-
tection requires no stretch of the statutory language. Title VII, for ex-
ample, prohibits pregnancy discrimination by defining discrimination

361 DEMOCRATIC NAT’L COMM., THE CHARTER & THE BYLAWS OF THE DEMOCRATIC

PARTY OF THE UNITED STATES 8 (2oi8), https:Hdemocrats.org/wp-content/uploads/2018/io/
DNC-Charter-Bylaws-8.25.1i8-with-Amendments.pdf [https://perma.cc/HG2Y-2J45].

362 The moral case may be stronger than the business one. See, e.g., Deborah L. Rhode &
Amanda K. Packel, Diversity on Corporate Boards: How Much Difference Does Difference Make?,

39 DEL. J. CORP. L. 377, 379 (2014) (“[T]he ‘business case for diversity’ is less compelling than other
reasons rooted in social justice, equal opportunity, and corporate reputation.”).

363 See NAT’L P’SHIP FOR WOMEN & FAMILIES, REASONABLE ACCOMMODATIONS FOR

PREGNANT WORKERS: STATE AND LOCAL LAWS (2oi8), http://www.nationalpartnership.org/
research-library/workplace- fairness/pregnancy-discrimination/reasonable-accommodations-for-
pregnant-workers-state-laws.pdf [https://perma.cc/45XZ-PWLS] (surveying state and local laws).

364 See, e.g., Douglas NeJaime, The Nature of Parenthood, 126 YALE L.J. 2260, 2314 (2017) (re-
viewing the law of parentage with respect to artificial reproductive technologies and concluding
that “even in an age of sex and sexual-orientation equality, courts and legislatures continue to treat
biological mothers as the parents from whom the legal family necessarily springs”).

365 1 focus here on pregnancy rather than parenting in general, but with respect to parental leave,
consider that even a scholar arguing for “fatherhood bonuses” to encourage fathers to take parental
leave admits that these benefits should also be extended to “lesbian co-mothers” and even “single
parents” who would receive double the benefits. Keith Cunningham-Parmeter, (Un)Equal Protec-
tion: Why Gender Equality Depends on Discrimination, 109 NW. U. L. REV. i, 55 (2014).

366 See, e.g., Lara Karaian, Pregnant Men: Repronormativity, Critical Trans Theory and the
Re(conceive)ing of Sex and Pregnancy in Law, 22 Soc. & LEGAL STUD. 211, 212-13 (2013); Tori
Truscheit, All the Things I Worry About as My Nonbinary Partner Prepares to Give Birth, THE
CUT (Dec. 12, 2Q17), https://www.thecut.com/2017/12/giving-birth-outside-the-gender-binary.html
[https:Hperma.cc/7MVL-X2DA]. Nonbinary people may also menstruate, see, e.g., James Michael
Nichols, Powerful Photo Shows that Women Aren’t the Only Ones Who Get Periods, HUFFINGTON
POST (Dec. 22, 2017), https://www.huffingtonpost.com/entry/cass-clemmer-trans-periods us
597ilbce4boaaI4ea78a25I [https:Hperma.cc/7 XWB-DYS4 ] (discussing trans menstrual health ad-
vocate Cass Clemmer), and lactate, see, e.g., Trevor MacDonald et al., Transmasculine Individuals’
Experiences with Lactation, Chestfeeding, and Gender Identity: A Qualitiative Study, 16 BMC
PREGNANCY & CHILDBIRTH I, 2 (2oi6), https:Hbmcpregnancychildbirth.biomedcentral.com/
articles/io.ii86/s12884-0i6-0907-y [https:Hperma.cc/6J8Y-3 LEX].

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based on “sex” to include discrimination based on pregnancy3 67 This
provision is not limited to discrimination against women.3 68 But some-
times statutory language refers to females or women. For example, Title
VII also includes a provision that states: “women affected by pregnancy,
childbirth, or related medical conditions” are to be treated the same as
nonpregnant workers “similar in their ability or inability to work.

‘3 69

Rules such as this can be clarified to specify that they apply to all
people who are pregnant.3 7 0 In statutes governing family law as well,
terms such as “gestational mother” might be replaced with “gestational
parent.’371

One feminist objection might be that this logic severs pregnancy
from women’s issues and indirectly hinders arguments for constitutional
protection.3 7 2 In 1974, the Supreme Court rejected an equal protection
challenge to a state disability fund that excluded pregnancy coverage,
reasoning that “[tihe program divides potential recipients into two
groups – pregnant women and nonpregnant persons. While the first
group is exclusively female, the second includes members of both
sexes.’ 37 3 One rebuttal to this formalistic argument is to insist, just as
formalistically, on the equivalence of women and pregnancy, because
only “biological women” get pregnant.37 4 This rebuttal has had some

367 42 U.S.C. § 2oooe(k) (2012) (defining discrimination “because of sex” to include discrimination

“because of … pregnancy, childbirth, or related medical conditions”).
368 See Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684-85 (-983)

(allowing male employees to challenge employer benefits plans that covered female employees’
pregnancies but not male employees’ spouses’ pregnancies).

369 42 U.S.C. § 2oooe(k).
370 For an example of one fix, see Cal. Fair Emp’t & Housing Council, Amendments to the Fair

Employment and Housing Act Regulations 25-26 (2015) (codified at CAL. CODE REGS. tit. 2,
§ 11o35(f)-(g) (2oi8)) https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/o6/FinalText.pdf
[https://perma.cc/UPX7-TLUU] (clarifying that an “eligible female employee” for purposes of preg-
nancy accommodation includes “a transgender employee who is disabled by pregnancy”).

371 The 2017 Uniform Parentage Act’s definitions of parents have moved in the direction of gen-
der neutrality. See, e.g., UNIF. PARENTAGE ACT § 107 (UNIE LAW COMM’N 2Q17) (“To the extent
practicable, a provision of this [act] applicable to a father-child relationship applies to a mother-
child relationship and a provision of this [act] applicable to a mother-child relationship applies to a
father-child relationship.” (alterations in original)). However, the Act still uses gendered terms such
as “woman who gave birth to a child.” E.g., id. § 301. This language could be changed to “person
who gave birth to a child” or “gestational parent” to include nonbinary people and transgender men.

372 Cf Chase Strangio, Can Reproductive Trans Bodies Exist?, i9 CUNY L. REV. 223, 229-30
(2oi6) (offering examples of this genre of argument against transgender inclusion in reproductive

rights discussions).
373 Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (i974).
374 See, e.g., Vivian M. Gutierrez & Berta E. Hernandez-Truyol, UnSexing Pregnancy?, in Darren

Rosenblum et al., Pregnant Man?: A Conversation, 22 YALE J.L. & FEMINISM 207, 233 (2010) (“A
person/parent with a female reproductive system is pregnant, regardless of how that person presents
socially or legally.”).

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success in state courts interpreting their own constitutions to prohibit
discrimination based on pregnancy.

375

But the argument also has risks for feminists. If the law defines
women as a class by their capacity to become pregnant, then this capac-
ity appears to be a legitimate basis for discrimination against women.

37 6

In any event, there are any number of more substantive arguments link-
ing pregnancy discrimination to sex: for example, that in practice, dis-
crimination based on pregnancy drives women’s inequality,37 7 that it is
based on the assumption that all workers meet a traditionally male
norm,378 or that it is a thinly veiled attempt to exclude women from the
workplace.379 The fact that nonbinary people, like transgender men,
may also avail themselves of pregnancy protections in no way under-
mines these substantive arguments.

Likewise, in the family law domain, even scholars arguing for rules
that would mostly benefit mothers are able to cast their prescriptive
recommendations in sex-neutral terms.3 0 Laws governing parents
might go further in the direction of gender neutrality by recognizing
more of the social as well as biological aspects of parenthood.3 l Non-
binary parents, like many other LGBT parents, may demonstrate the

375 A Connecticut state court advanced this formalistic argument, among several others, in hold-
ing that the Connecticut Constitution’s Equal Rights Amendment prohibited the state from refusing
to fund medically necessary abortions. Doe v. Maher, 515 A.2d 134, 159-6o (Conn. Super. Ct. 1986)
(“Since only women become pregnant, discrimination against pregnancy by not funding abortion
when it is medically necessary and when all other medical expenses are paid by the state for both
men and women is sex oriented discrimination.” Id. at I59.).

376 See, e.g., Cary Franklin, Biological Warfare: Constitutional Conflict over “Inherent Differ-

ences” Between the Sexes, 2017 SuP. CT. REV. 169, i8o (“[P]regnancy is, in some instances, deemed
to be a fundamental difference between the sexes that gives the state a legitimate reason to treat
men and women differently.”).

377 This was the type of argument that the Doe court regarded as “most important.” Doe, 515
A.2d at -59 (“Since time immemorial, women’s biology and ability to bear children have been used
as a basis for discrimination against them…. This discrimination has had a devastating effect upon
women.”).

378 Cf. id. (holding that a benefits plan was discriminatory because “all the male’s medical ex-
penses associated with their reproductive health, for family planning and for conditions unique to
his sex are paid and the same is provided for women except for the medically necessary abortion
that does not endanger her life”).

379 See Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974) (stating that “a showing that distinctions
involving pregnancy are mere pretexts designed to effect an invidious discrimination against the
members of one sex or the other” would be sufficient to constitute a violation of the Equal Protection

Clause).
380 See, e.g., Jennifer S. Hendricks, Fathers and Feminism: The Case Against Genetic Entitle-

ment, 91 TUL. L. REV. 473, 500 (2017) (arguing that genetics alone should not entitle a person to
parental rights, but biology along with a relationship should).

381 For an argument about how “[p]arentage law could move away from separate regulations of
maternity and paternity and instead work toward general regulation of parentage” by considering

social as well as biological connections, see NeJaime, supra note 364, at 2337-38. For an argument
that the law should go even further to “unsex” pregnancy protections by encouraging nonpregnant
partners to engage in more care work, such as setting up health care appointments, choosing a

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THEY, THEM, AND THEIRS

importance of social bonds as well as biological relationships in family
law, reproductive health care, and parenting.

38 2

3. Misgendering and Pronouns. – Another concern is whether law
will require the use of nonbinary pronouns and titles. Most transgender
people, including many who identify as nonbinary, use gendered
pronouns such as he and she.38 3 However, 29% of transgender respond-
ents to the USTS stated they use “they/them” pronouns.38 4 Some
transgender people may request even more unfamiliar pronouns, such
as ze (pronounced “zee”) and hir (pronounced “hear”).3 5 Rather than
Ms., Mrs., or Mr., some may request the honorific prefix Mx. (most often
pronounced “Mix”). 3 6 When nonbinary people request unfamiliar
pronouns, they may encounter discrimination and harassment.38 7 The
law should recognize nonbinary gender identities in this context, just as
it requires equal respect for male and female gender identities. Whether
harassment law applies will depend on the circumstances: harassment

pediatrician, purchasing a car seat, or taking a childcare class, see David Fontana & Naomi
Schoenbaum, The Sexed Pregnancy, COLUM. L. REV. (forthcoming 2019) (manuscript at I6-20) (on
file with the Harvard Law School Library).

382 This Article does not develop these arguments, because they have been discussed in other

work. See e.g., Darren Rosenblum, Epilogue and Response, in Rosenblum et al., supra note 374, at
261, 269 (“Parenting should be unsexed to embrace both the fluidity of contemporary understand-
ings of gender and the need for balancing roles within the family.”); supra note 38I.

383 JAMES ET AL., supra note 2, at 49 (reporting that 37% of nonbinary respondents to the 2015

USTS use he/his pronouns, 37% use she/her, 29% use they/their, 20% do not ask for any particular
pronouns, and 4% use other unique choices).

384 Id.
385 See, e.g., id. at 49-50 (reporting that 2% use ze/hir); Beemyn, supra note 182, at 359. Beemyn

explains that “students who want to be recognized as nonbinary have tended to gravitate toward
‘they/them/their,’ because it is language that others already have and its usage to describe one per-
son is gaining support in the dominant society.” Beemyn, supra note 89, at 251 (discussing the
results of a survey of iii nonbinary college students in 2014). “The handful of students I inter-
viewed who had chosen other pronoun options, specifically ‘ze/hir/hir,’ ‘ze/zim/zir,’ or ‘xe/xem/xir,’
often had difficulty, or did not try, getting people beyond their close friends to refer to them with
these pronouns.” Id.

386 Robin Henry, Now Pick Mr, Mrs, Miss, Ms… or Mx for No Specific Gender, THE TIMES
(May 3, 2015, i:oi AM), https://www.thetimes.co.uk/article/now-pick-mr-mrs-miss-ms-or-mx-for-
no-specific-gender-t2rb5bh62rs [https:Hperma.cc/B4 89-J2Y4 ] (reporting that “[lthe first recorded
use of Mx was in Single Parent, the American magazine, in 1977” and quoting an assistant editor
of the Oxford English Dictionary as saying: “The early proponents of the term seem to have had
gender politics as their central concern [and] saw the title as one which could sidestep the perceived
sexism of the traditional ‘Mr’, ‘Mrs’ and ‘Miss.”‘ (second alteration in original)); On the Pronunci-
ation of Mx, GENDER CENSUS (Apr. 25, 2o6, 12:40 PM), http://gendercensus.com/post/
14338280254o/on-the-pronunciation-of-mx [https:Hperma.cc/X83 B-6BG6] (informal online poll on
pronunciation).

387 See, e.g., Casey Parks, Gresham-Barlow School District Agrees to Pay Transgender Teacher,

Add Gender-Neutral Bathrooms After Complaint, OR. LIVE (May 20, 2o6), http://www.oregonlive.

com/education/index.ssf/2o16/o5/gresham barlow-transgender tea.html [https:Hperma.cc/Q8DW-
JJAZ]; Lori Rozsa, Transgender Teacher Removed from Classroom After Some Parents Object to
Gender-Neutral Prefix “Mx.,” WASH. POST (Sept. 29, 2017), http://wapo.st/2xLEiYL [https://
perma.cc/BRN4-SDK5].

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law does not reach accidental or isolated remarks, nor does it generally
require the use of any idiosyncratic pronouns a person might request.

Sincere questions about pronouns, as well as accidental or isolated
misgendering, do not qualify as harassment. This is because the law
generally requires that harassment be “severe or pervasive” to be action-
able.38 8 Even in the most protective of jurisdictions, harassment law
does not reach “petty slights and trivial inconveniences.38 9 For exam-
ple, the New York City Commission on Human Rights has issued a
guidance document stating that City rules require employers, landlords,
and providers of public accommodations “to use an individual’s pre-
ferred name, pronoun, and title (e.g., Ms./Mrs.).3 9 0 It further provides
that pronouns may include “they/them/theirs or ze/hir. 3 9 1 As an exam-
ple of a violation of the law, the guidance gives: “[i]ntentional or repeated
refusal” to use the correct terms “after [a person] has made clear which
pronouns and title she uses.3 92 Misgendering a nonbinary person could
therefore be part of a pattern of prohibited gender-identity or sex-based
harassment.

393

Additionally, the law requires that harassment be objectively hostile,
not just subjectively offensive.3 94 Thus, the law must account for the
social meaning of harassing language, not just the individual victim’s

388 Harris v. Forklift Sys., Inc., 51o U.S. 17, 21 (1993).
389 Nelson v. HSBC Bank USA, 929 N.Y.S.2d 259, 264 (N.Y. App. Div. 2011). New York does

not have a “severe or pervasive” requirement. Id. at 263.
390 N.Y.C. COMM’N ON HUMAN RIGHTS, LEGAL ENFORCEMENT GUIDANCE ON DIS-

CRIMINATION ON THE BASIS OF GENDER IDENTITY OR EXPRESSION: LOCAL LAW No. 3

(2002); N.Y.C. ADMIN. CODE § 8-102(23), at 4 (2oi6), https://wwwi.nyc.gov/assets/cchr/downloads/

pdf/publications/GenderIDInterpretiveGuide_2015.pdf [https:Hperma.cc/C994-QAMV]. This
Article generally avoids the term “preferred pronouns” because this phrasing suggests pronoun us-
age is a matter of mere preference rather than an issue of equal respect. It uses the term “correct
pronouns” instead.

391 Id.
392 Id. at 5; see also D.C. MUN. REGS. tit. 4, § 808.2 (2017) (providing that “[d]eliberately misus-

ing an individual’s preferred name[,] form of address or gender-related pronoun” “may constitute
evidence of unlawful harassment and hostile environment” considering “the nature, frequency, and
severity of the behavior,” among other factors).

393 A court might require a plaintiff to demonstrate some form of mistreatment in addition to
refusal to use gender-neutral pronouns. I have found no cases in which a nonbinary person has
brought a claim alleging discrimination based solely on a refusal to use gender-neutral pronouns.
In one Oregon case, a schoolteacher alleged that their employer forbade other employees from using
the correct pronoun (“they”), and their coworkers called them “she,” “lady,” or “Miss,” smeared
Vaseline on their cabinets, yelled insults at them in the hallway, and conspired to prevent them from
using the school’s only gender-neutral restroom. Parks, supra note 387. The teacher won a settle-
ment. Id.

394 Harris v. Forklift Sys., Inc., 51o U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work environment – an environment that a
reasonable person would find hostile or abusive – is beyond Title VIi’s purview.”).

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perspective.3 95 Harassment that expresses disrespect for a person’s gen-
der identity is objectively hostile, just like harassment that expresses
disrespect for a person’s racial or religious identity. For example, imag-
ine a scenario in which xenophobes harass a coworker they know to be
from India by referring to him as an “Arab. ‘ 396 This deliberate ascrip-
tion of an incorrect identity is a form of racism – among other things,
it expresses the idea that all people with brown skin are “Arab” and that
Indian identity is unworthy of respect.3 97 Similarly, intentional misgen-
dering expresses stereotypes about what real “men” and “women” are
and informs its target that their own gender identity is unworthy of re-
spect. It is unreasonable to refuse to refer to a person by their first
name, for example, calling a man “Jane” rather than “John,” due to a
disagreement about whether his male gender identity is valid.3 98 Like-
wise, it is unreasonable to insult him by referring to him as “she,” as the
Equal Employment Opportunity Commission has concluded.399 And if
a person uses they/them pronouns, it is unreasonable to insist on refer-
ring to them as “he” or “she.

‘400

But what if a person who goes by the name Jane-John insists on a
new set of pronouns that no one else uses ? 40 1 At present, it does not
seem unreasonable to deny this request, although it may be unkind. The
law does not protect a person’s right to be identified in any manner they
wish; it prohibits harassment based on sex. Pronouns, unlike proper
names, are “closed class words” that require particular “mental effort”

395 Some courts may consider the inquiry to ask what a reasonable person would think, “from
the victim’s perspective,” noting that men and women may view the same conduct differently. See,
e.g., Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. i99i). But not even this standard is a subjective
one; it asks what a reasonable person in the plaintiff’s circumstances would perceive.

396 See, e.g., EEOC v. WC&M Enters. Inc., 496 F.3 d 393, 401-02 (5 th Cir. 2007) (reversing a
district court’s conclusion that an Indian plaintiff whose coworkers called him an “Arab” was un-
protected by Title VII).

397 Cf Robin Dembroff & Daniel Wodak, He/She/They/Ze, 5 ERGO 371, 376 n.8 (2018). It also
denigrates Arab identity, but that is not the only reason it is wrong.

398 This is true whether or not John is transgender.
399 See Lusardi v. McHugh, EEOC Appeal No. 0120133395, 2015 WL 1607756, at *ii (Apr. i,

201-5) (“While inadvertent and isolated slips of the tongue likely would not constitute harassment, under
the facts of this case, S3’s actions and demeanor made clear that S3’s use of a male name and male
pronouns in referring to Complainant was not accidental, but instead was intended to humiliate
and ridicule Complainant. As such, S3’s repeated and intentional conduct was offensive and demean-
ing to Complainant and would have been so to a reasonable person in Complainant’s position.”).

400 See Dembroff & Wodak, supra note 397, at 372 (“[E]nough of the morally relevant facts that
explain why it is wrong to misgender transgender women … are equally applicable to genderqueer
individuals …. ).

401 Cf Brenda Cossman, Gender Identity, Gender Pronouns, and Freedom of Expression: Bill C-
16 and the Traction of Specious Legal Claims, 68 U. TORONTO L. 37, 51 (2018) (discussing the
“unsettled” controversy over whether Ontario’s human rights law grants the right to choose which
gender neutral pronouns to use).

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to adopt.40 2 They create a sort of numerus clausus problem.40 3 What is
objectively unreasonable is to misgender Jane-John as “he” or “she”
when there are gender-neutral alternatives, like the singular “they” or
“hir.” These options are not wholly idiosyncratic,40 4 they are not
novel,405 and regulated entities in some places have been put on notice
by administrative agencies that they might be required to use such
terms.40 6 Readers may object that harassment law offers no bright-line
rule as to what modes of address are required, but there is never any
bright-line test of what constitutes sexual, racial, or religious harass-
ment.40 7 The test cannot be pinned down with precision or frozen in
time because it must depend on context and contemporary norms.408

There are special institutional contexts in which there might be par-
ticular reasons to compel recognition of any pronouns used by a person,
including idiosyncratic ones. A California law known as the LGBT
Senior Bill of Rights, passed in October 2Q17, makes it unlawful for
nursing home staff to “[w]illfully and repeatedly fail to use a resident’s
preferred name or pronouns after being clearly informed of the preferred
name or pronouns,” unless that requirement is “incompatible with any
professionally reasonable clinical judgment.’ 40 9 Such a rule is war-
ranted in the context of the long-term care industry, which involves a

402 See John McWhorter, Goodbye to “He” and “She” and Hello to “Ze”?, CNN (Oct. 14, 2015,

8:31 AM), https://www.cnn.cOm/2015/-/14/OPinions/mcwhorter-pronouns-gender-neutral/index.
html [https:Hperma.cc/SU86-NJ5 5].

403 See supra p. 939.
404 See supra p. 957.
405 See, e.g., LESLIE FEINBERG, TRANS LIBERATION: BEYOND PINK OR BLUE 71 (1998)

(discussing the author’s use of “hir” and “ze” in the i99os).
406 See supra p. 958.
407 See, e.g., Post, supra note 286, at 17 (“[A]ntidiscrimination law is itself a social practice, which

regulates other social practices, because the latter have become for one reason or another contro-
versial. It is because the meaning of categories like race, gender, and beauty have become contested
that we seek to use antidiscrimination law to reshape them in ways that reflect the purposes of the
law.”).

408 Cf Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2o06) (per curiam) (holding that a court of
appeals had erred by concluding that the insult “boy,” used to describe an adult African American
man, was nondiscriminatory, and noting that whether a term is evidence of discrimination “de-
pend[s] on various factors including context, inflection, tone of voice, local custom, and historical
usage”).

409 CAL. HEALTH & SAFETY CODE § 1439.51 (West 2oi8). This is a criminal rather than a civil
statute because, when the law was first proposed, the long-term care industry objected to any pri-
vate right of action. See, e.g., Hearing on S.B. 219 Before the S. Standing Comm. on Judiciary,
2017-2o18 Leg., Reg. Sess. (Cal. 2017) [hereinafter Cal. Hearing on S.B. 219] (statement of Matthew
Robinson, California Association of Health Facilities), https://ca.digitaldemocracy.org/hearing/
52473 ?startTime =52&vid=6c776dddi a23 558229f9c6de97aadecc [https://perma.cc/ZDK7 -DB 4 U];
id. (statement of Lori Ferguson, California Assisted Living Association). Violations are misdemean-

ors, which could technically be penalized with fines of up to $2500, i8o days in county jail, or both,
depending on factors including “[w]hether the violation exposed the patient to the risk of death or
serious physical harm.” CAL. HEALTH & SAFETY CODE § 1290(c). If the statute were ever en-
forced, it is likely that prosecutors would seek small fines. Chris Nichols, Claims Mislead About

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THEY, THEM, AND THEIRS

captive and vulnerable population of LGBT seniors.410 Long-term care
providers are charged with protecting the physical and mental health of
this population and should not endanger the well-being of their charges
by disrespecting their identities, however idiosyncratic.

A number of objections have been raised to the extension of harass-
ment law to require recognition of nonbinary identity. Some object that
by requiring pronouns other than “he” or “she,” government is taking
sides on the acceptability of nonbinary gender identities, an issue on
which public opinion polls are divided.411 But discrimination law al-
ways takes sides in social controversies,412 and harassment law inevita-
bly intervenes in the use of language. Changing modes of address often
express changes in the social status of groups. During the civil rights
era, the Supreme Court once intervened to require that an African
American woman be addressed with the honorific “Miss,” just like a
white woman.4 13 Formerly common modes of class-based address –
such as “my lord” – have fallen out of favor.414 Experience with “Ms.”
demonstrates that new forms of address are possible and can quickly
become culturally legible.

4 1 5

Other objections are particular to pronouns. Law professor Eugene
Volokh has argued that “[c]ompelling people to change the way they use
the ordinary, commonplace words of everyday speech – turning plurals
into singulars (or vice versa) – is a serious imposition. ‘ 41 6 But why is

California Forcing Jail Time for Using Wrong Transgender Pronoun, POLITIFACT (Sept. 26, 2017,
5:13 PM), http://www.politifact.com/california/article/2017/sep/26/claims-mislead-about-california-
bill-forcing-jail-/ [https://perma.cc/U22T-QF5 U] (statement by the bill’s sponsor, Senator Scott
Wiener, that “no one is going to jail” for incorrect pronoun use, an infraction that he predicts will
be treated akin to a violation of the ban on smoking).

410 See Cal. Hearing on S.B. 219, supra note 409 (statement of Sen. Scott Wiener) (“[T]hese sen-
iors, people who are in their 70s, 8os, gos and above today, are the people who created the modern
LGBT community…. These are heroes, and they deserve to age gracefully and with the dignity
and respect that they have earned ioo times over.”).

411 See Josh Blackman, Opinion, The Government Can’t Make You Use “Zhir” or “Ze” in Place
of “She” and “He,” WASH. POST (June i6, 2016), https:Hwapo.st/itt4rWZ [https:Hperma.cc/Q4 MC-
GTTW] (opposing antiharassment rules that would require gender-neutral pronouns on the ground
that “while a non-binary view of gender may be orthodoxy in certain segments of society, a near-
majority of Americans reject it as a fact of life”).

412 See Post, supra note 286, at 17.
413 Bell v. Maryland, 378 U.S. 226, 248 n.4 (1964) (Douglas, J., concurring) (discussing Hamilton

v. Alabama, 376 U.S. 650 (1964) (per curiam)).
414 Titles of nobility never made it over to the United States. See U.S. CONST. art. I, § 9, cl. 8

(“No Title of Nobility shall be granted by the United States ….”).
415 “Ms.” has a long history, but quickly entered common usage in the 197OS due to feminist

advocacy. See, e.g., Ben Zimmer, Ms., N.Y. TIMES MAG. (Oct. 23, 2oo9), https:Hnyti.ms/2kgehvH
[https://perma.cc/KQV6-CXDS].

416 Eugene Volokh, Opinion, Claims by Transgender Schoolteacher (Who Wants to Be Called

“They”) Yield $60,ooo Settlement, Agreement to Create Disciplinary Rules Regulating “Pronoun

Usage,” WASH. POST. VOLOKH CONSPIRACY (May 25, 2o6), https:Hwapo.st/iqJ29RU [https:/
perma.cc/X6NS-BMUX].

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this a “serious” imposition? The objection might be related to grammar,
clarity, or compulsion.

Rules of grammar are often invoked to resist gender-neutral pro-
nouns.4 17 The primary problem with this objection is that it elevates
rules of grammar over considerations of how to treat one another
equally. But even on its own terms, the grammatical objection is dubi-
ous. Language is ever evolving. The American Dialect Society voted
the singular “they” Word of the Year in 2015, noting that it was used by
writers including Geoffrey Chaucer, William Shakespeare, and Jane
Austen to refer to an unknown person.418 Usage of the singular “they”
to describe an unknown person is still ubiquitous, despite the strivings
of Victorian grammarians to replace it with a universal “he.”

419

A related objection may be the lack of clarity – is the referent of
“they” a singular person or group? But context is usually clarifying, as
with “you,” a pronoun that is both singular and plural.420 While English
speakers once distinguished “thou” (singular) from “you” (plural), “thou”
has disappeared.421 While new uses of language may at first cause fric-
tion, as new terms become more familiar, confusion abates. The English
language is plastic, and “change is normal, ongoing, and entertain-
ing. ‘ 422 In any event, as philosophers Robin Dembroff and Daniel
Wodak have argued, “[e]ven if using they slightly complicates commu-
nication, it is preferable to further maligning minority gender groups.

‘4 23

The objection may be about government compulsion of speech: man-
dating particular pronouns rather than forbidding misgendering.4 24 Yet

417 Some ersatz grammarians are insincere. Bergman & Barker, supra note 31, at 43 (pointing

out that some people who oppose the singular “they” do not otherwise care about grammatical rules
and hypothesizing that grammatical objections are easier to voice than the real sentiment: “I think
your identity is invalid because it challenges my beliefs about the world”).

418 2015 Word of the Year Is Singular “They,” AM. DIALECT Soc’Y (Jan. 8, 2oi6), https:/www.
americandialect.org/2015-word-of-the-year-is-singular-they [https:Hperma.cc/F3MD-V296].

419 Geoff Nunberg, Everyone Uses Singular “They,” Whether They Realize It or Not, NPR (Jan.
13, 2o16, i:oo PM), https://www.npr.org/2oi6/o/i3/4629o6419/everyone-uses-singular-they-
whether-they-realize-it-or-not [https://perma.cc/gPDN-4 LEP].

420 See McWhorter, supra note 402.
421 See id.
422 AM. DIALECT SOC’Y, supra note 418.
423 Robin Dembroff & Daniel Wodak, The Problem with Pronouns, PHILOSOPHER (June

23, 2Q17), https:Hpoliticalphilosopher.net/2017/o6/23/featured-philosophers-robin-dembroff-daniel-

wodak/ [https://perma.cc/LUR6-UG5 D].
424 See Cossman, supra note 401, at 42-45 (discussing the compelled speech objection to

Canadian gender nondiscrimination law); Volokh, You Can Be Fined, supra note 169 (“New York
is requiring people to actually say words that convey a message of approval of the view that gender
is a matter of self-perception rather than anatomy, and that, as to ‘ze,’ were deliberately created to
convey that … message.”).

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harassment law constantly compels speech by requiring people to inter-
act on equal terms with others they believe are unequal.4 25 For example,
a sexist police officer would be compelled to refer to a female colleague
as “Officer,” even if he believes women should not have that title because
their role is in the home. Alternatively, those who object to the gender-
neutral honorific “Mx.” have the option of avoiding gendered honorifics
altogether, and not referring to any students or coworkers as “Mr.” or
“Ms.” An analogy to our instincts about harassment based on religion
might be instructive. Should it be considered harassment on the basis
of religion to refuse to refer to a person by religious titles such as “Your
Holiness,” “Rabbi,” or “Imam,” when no one else in a school or work-
place uses religious titles? To compel participants in secular life to use
religious honorifics seems incorrect. Those who object to gender-neutral
pronouns may use proper names to refer to everyone, as the district court
ultimately did in one of its Zzyym opinions.4 26 In close quarters, where
it is impossible to avoid the use of pronouns, equal treatment means
giving “them” the same respect as “he” and “she.”

C. Sex-Specific Roles and Programs

The law allows binary sex segregation in some educational programs,
sporting events, and workplaces. These limited contexts are not reasons
to reject the project of nonbinary inclusion.

. Education. – Many controversies over transgender students –
such as whether schools should respect the gender identities of children
over parental opposition – are not any different with respect to nonbi-
nary gender, and so are beyond the scope of this Article. But nonbinary
students may pose special challenges for sex-segregated schools, class-
rooms, and programs. Various neutrality, recognition, and integration
strategies may be ways forward in these contexts.

Many feminist scholars have advocated for an anticlassification ap-
proach to education, based on research finding that single-sex programs
have negligible educational benefits, they are costly, and they advance
damaging gender stereotypes.427 The existence of nonbinary students,

425 In 2006, the Supreme Court rejected a compelled speech objection to a law that required law

schools to treat military recruiters like other recruiters, even though it compelled law schools to
speak by including military recruiters in their promotional materials. Rumsfeld v. Forum for Acad.
& Institutional Rights, Inc., 547 U.S. 47, 61-62 (2006). The Court noted that the regulation of
speech is always “incidental” to the enforcement of antidiscrimination laws: the fact that Title VII
“will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that
the law should be analyzed as one regulating the employer’s speech rather than conduct.” Id. at
62.

426 See Zzyym v. Kerry, 220 F. Supp. 3 d iio6 passim (D. Colo. 2oi6) (referring to the plaintiff
throughout as “Dana” without pronouns).

427 See, e.g., Rebecca S. Bigler et al., Analysis and Evaluation of the Rationales for Single-Sex
Schooling, in 47 ADVANCES IN CHILD DEVELOPMENT AND BEHAVIOR 225, 252-53 (Lynn S.

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who do not fit the stereotypes behind single-sex education, provides an-
other argument against these programs. But those who disagree on the
policy arguments need not oppose inclusion of nonbinary people in gen-
eral, because the law requires pluralism. Department of Education reg-
ulations permit funding of single-sex schools and classes, so long as stu-
dent enrollment is “completely voluntary” and the school “provides to
all other students, including students of the excluded sex, a substantially
equal coeducational class or extracurricular activity in the same subject
or activity. ‘4 28 Thus, all students have the option of coeducational clas-
ses, while students who wish to claim binary gender identities can opt
into segregated classes.

Nonbinary gender also creates challenges for private women’s col-
leges.429 But these institutions have responded to these challenges with
integration strategies: asking what interests sex-segregation serves and
whether the definition of sex or gender used is tailored to meet those
interests.430 Thus, many are moving toward admitting any students
who identify as transgender (men or women) or nonbinary.431 The ar-
gument in favor of this move is that these institutions regard their mis-
sions as countering marginalization based on sex and gender identity.

432

Professor Davis suggests that these colleges should go further to become

Liben & Rebecca S. Bigler eds., 2014) (arguing that empirical research does not support rationales
for single-sex education, and that studies that show benefits fail to control for selection effects);
Diane F. Halpern et al., The Pseudoscience of Single-Sex Schooling, 333 SCIENCE 17o6, 1707 (2011)
(discussing evidence of the stereotyping argument); Erin Pahlke et al., The Effects of Single-
Sex Compared with Coeducational Schooling on Students’ Performance and Attitudes: A Meta-
Analysis, 140 PSYCHOL. BULL. 1042, 1O64-65 (2014) (meta-analysis of 184 studies of single-sex
education concluding that those that used the best research methods demonstrated only trivial ad-
vantages, and noting that poorly designed studies may be fueling advocacy for single-sex schooling).

428 34 C.F.R. § Io6. 3 4(b) (2o18). For an argument that this regulation is unconstitutional, see
David S. Cohen & Nancy Levit, Still Unconstitutional: Our Nation’s Experiment with State-
Sponsored Sex Segregation in Education, 44 SETON HALL L. REV. 339 (2014).

429 Title IX includes an exemption for “any public institution of undergraduate higher education
which is an institution that traditionally and continually from its establishment has had a policy of
admitting only students of one sex.” 20 U.S.C. § i68i(a)(5) (2012).

430 See DAVIS, supra note 288, at 98-1O1.
431 See Admission of Transgender Students, MOUNT HOLYOKE, https://www.mtholyoke.edu/

policies/admission-transgender-students [https://perma.cc/BLV2-HDLZ] (clarifying that it admits
anyone “who is female or identifies as a woman” in whole or in part); Anna North, Can Transgender
Students Go to Women’s Colleges? Across the Country, the Answer Is Evolving., Vox (Sept. 22,
2017, 11:17 AM), https://www.vox.com/identities/2017/g/2/631-5072/spelman-college-transgender-
students-womens-colleges [https://perma.cc/CAB3 -MEXC] (surveying women’s colleges and
demonstrating the trend toward admitting all transgender students).

432 Scott Jaschik, Trans Applicants Welcome, INSIDE HIGHER ED (Sept. 3, 2014), https:/www.
insidehighered.com/news/201-4/09/03/mount-holyoke-will-now-accept-applications-transgender-
women [https:Hperma.cc/5 NVG-GCQ6].

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THEY, THEM, AND THEIRS

“historically women’s colleges,” following the model of historically black
institutions that now admit students of all races.

4 33

Nonbinary students might also challenge school dress codes that pre-
scribe different standards for boys and girls. This would be a good thing,
because sex-differentiated dress codes perpetuate gender stereotypes
that are harmful to all students, “communicat[ing] that girls’ bodies are
inherently sexual, provocative, [and] dangerous” and that boys will in-
evitably objectify and harass girls.4 34 The best practice is sex neutrality:
to prohibit certain forms of inappropriate apparel or “mandate[] which
body parts must be covered,” and to apply the rules uniformly.

4 35

Another question is whether teachers should refer to students with
gendered terms. A radical demand would be for gender-neutral early-
childhood education, to allow young children to work out their own
gender identities.4 36 This would follow the model of some taxpayer-
funded preschools in Stockholm, Sweden, where teachers assiduously
avoid gendering their young charges, using the gender-neutral Swedish
pronoun “hen,” calling them “friends” rather than “boys and girls,” and
not treating them according to stereotypes.4 37 In the United States, how-
ever, where publicly funded preschool is not even universally available,
the goal of eliminating sex stereotyping in early childhood education

433 DAVIS, supra note 288, at 87; see id. at 107 (arguing that single-sex admissions policies are
not essential to the mission of women’s colleges and suggesting instead that these colleges require
essays that “ask prospective students to reflect upon how their own sex identities relate to the col-
lege’s commitment to fighting institutional sexism”).

434 Meredith Johnson Harbach, Sexualization, Sex Discrimination, and Public School Dress
Codes, 5o U. RICH. L. REV. 1039, 1044 (2oi6); id. at 1047 (discussing successful equal protection
challenges to discriminatory school dress codes).

435 Kimmie Fink, The Importance of Inclusive School Dress Codes, HUM. RTS. CAMPAIGN (Jan.
30, 2017), https://www.hrc.org/blog/the-importance-of-inclusive-school-dress-codes [https:/perma.
cc/J 3 NT-86HS] (advising schools to “[a]void gender-specific policies altogether and instead allow
all students the same clothing choices regardless of gender”).

436 See Iantaffi Interview, supra note 47, at -8 (“I dream of a world where a child is born and, of
course, we’re not going to know their gender until they tell us. So we just use gender neutral
pronouns and then when they’re four or five, they’ll tell us because that’s when children tell you

who they are.”).
437 John Tagliabue, Swedish School’s Big Lesson Begins with Dropping Personal Pronouns, N.Y.

TIMES (Nov. -3, 2012), https:Hnyti.ms/2uLI7sq [https:Hperma.cc/CJT7 -9S 4Y]. One study found
that children at a gender-neutral preschool scored lower on a measure of gender stereotyping and
were more willing to play with children of other genders. Kristin Shutts et al., Early Preschool
Environments and Gender. Effects of Gender Pedagogy in Sweden, :162 J. EXPERIMENTAL CHILD
PSYCHOL. 1, 12 (2017). Other Swedish psychologists are skeptical that the schools will have any
long-term impacts on the children or society. Katy Scott, These Schools Want to Wipe Away Gender
Stereotypes from an Early Age, CNN (Nov. 1, 2018, 8:39 AM), https://www.cnn.com/2017/09/28/
health/sweden-gender-neutral-preschool/index.html [https:Hperma.cc/8NK8-WGgE].

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seems a remote one.438 Nonetheless, teachers might work to avoid lan-
guage that excludes nonbinary students, using terms like “students” ra-
ther than “ladies and gentlemen.’ 439 Educational institutions should
provide nonbinary students with processes that allow them to decide
when to disclose their pronouns, without requiring that they confront
teachers or putting them on the spot to announce their gender identities
in front of other students.

440

2. Athletics. – Another domain in which nonbinary inclusion poses
a challenge is sports. In the longer term, nonbinary athletes may inspire
society to think creatively about forms of sport in which many different
types of bodies are competitive. But in the shorter term, neutrality strat-
egies may come at the cost of women’s participation, and integration of
nonbinary athletes into the men’s or women’s divisions may be prefer-
able. Whether neutrality or integration is the best solution will depend
on the type of competition, the age of the competitors, and the reasons
for sex-segregated events.441 In any event, the legal issues that nonbi-
nary gender raises for sports are not reasons to reject nonbinary gender
wholesale.

Sex discrimination in athletics may run afoul of U.S. law, most nota-
bly Title IX, which forbids sex discrimination in sports programs at
schools receiving federal funding.442 In 1975, Department of Education

438 See, e.g., U.S. DEP’T OF EDUC., A MATTER OF EQUITY: PRESCHOOL IN AMERICA (2015),
https:wWWw2 .ed.gov/documents/early-learning/matter-equity-preschool-america.pdf [https:/perma.
cc/8ZX 7 -EXH3 ] (describing the lack of access to preschool for many American children).

439 Meg-John Barker et al., Non-binary Staff and Student Guidance for Higher Education Insti-
tutions, REWRITING THE RULES 4, https:Hrewriting-the-rules.com/wp-content/uploads/2017/0c/
Non-BinaryGenderHigherEducationGuidance- .pdf [https:Hperma.cc/UX7 Y-GWS7].

440 Id. at 3-4; Beemyn, supra note 182, at 361- (interviewing over 200 college students who identify
outside of gender or sexual binaries and reporting “[tihe interviewees who approached faculty mem-
bers about their pronouns stated that most were willing to use the requested pronouns, but many
of the students did not feel comfortable going to their instructors, not knowing how they would
react or not wanting to have such a conversation with a professor”); Dembroff & Wodak, supra note
423 (“Your student should get to choose whether and when they disclose their gender identity to
others; you should not force them to disclose this information to strangers, partly out of respect for
their autonomy, and partly to protect them from serious risks of stigmatization and discrimination.”).

441 Cf DAVIS, supra note 288, at 113-14 (asking that, for each age and level of play, organizations
reconsider the aims of sex segregation in athletics, which might be fostering equal opportunity,
student athleticism, recreation, or elite competition, or catering to the desires of fans for gender
specialization).

442 20 U.S.C. § i68i(a) (2012) (“No person in the United States shall, on the basis of sex, be ex-
cluded from participation in, be denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial assistance [with certain specified excep-
tions].”). Additionally, the Fourteenth Amendment may forbid sex discrimination by sports leagues
that qualify as “state actors.” See Perkins v. Londonderry Basketball Club, i96 F.3 d i3, ‘8 (ist Cir.
1999) (concluding that a “voluntary, nonprofit” basketball league, id. at 16, did not qualify as a
“state actor”). Some state and local laws may forbid sex discrimination by sports leagues that qual-
ify as public accommodations. See Nat’l Org. for Women v. Little League Baseball, Inc., 318 A.2d

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THEY, THEM, AND THEIRS

regulations carved out an exception to this rule, allowing sex-segregated
teams “where selection for such teams is based upon competitive skill or
the activity involved is a contact sport.’ 4 4 3 If selection is based on com-
petitive skill, members of the sex whose athletic opportunities were pre-
viously limited (generally women or girls) “must be allowed to try-out
for the team offered unless the sport involved is a contact sport.’ 4 4 4 The
regulation requires that, on the whole, a school must “provide equal
athletic opportunity for members of both sexes.

445

Third-gender recognition is an unlikely approach to athletics. Op-
ponents of California’s Gender Recognition Act argued that recognition
of nonbinary gender would require that schools establish separate sports
teams just for nonbinary students.446 Even assuming the regulation ap-
plies to nonbinary athletes despite its reference to “both sexes,” separate
teams would not “effectively accommodate” nonbinary athletes because
they are too small in number at present.447 Moreover, without a critical
mass of athletes, separate nonbinary divisions are likely to amount to
stigmatization rather than inclusion.

448

The best way to accommodate nonbinary athletes may be incremen-
tal moves toward eliminating sex classifications in sports.4 4 9 Growing
recognition of gender fluidity renders the project of classification of ath-
letes into the male and female divisions more difficult and suspect.

45 0

33, 37-38 (N.J. Super. Ct. App. Div. 1974) (holding that a Little League was a place of public ac-
commodation and therefore could not discriminate on the basis of sex under New Jersey antidis-
crimination law).

443 34 C.F.R. § io6.4i(b) (2oi8). For legal discussion of the interaction between Title IX and
equal protection standards, and an argument in favor of revision of the statute or Department of
Education regulations, see Jamal Greene, Hands Off Policy: Equal Protection and the Contact
Sports Exemption of Title IX, ii MICH. J. GENDER & L. i33, 163-65 (2005).

444 34 C.F.R. § io6.4i(b).
445 Id. § io6.41(c).
446 See sources cited supra note 33 and accompanying text.
447 See 34 C.F.R. § io6.41(c) (discussing factors to consider in assessing “whether equal opportu-

nities are available,” including whether the allocation of teams “effectively accommodate[s] the in-

terests and abilities of members of both sexes”).
448 A third category for intersex athletes is particularly troubling. Karkazis & Carpenter, supra

note 301, at 6-7 (opposing the creation of an intersex division in track and field on the grounds that
it forces people into the “third sex as punishment” for refusing to submit to medical treatments that
would lower their testosterone and requires an athlete to disclose her “intersex variation violating
her privacy and calling her identity into question,” id. at 7).

449 Erin Buzuvis, Hormone Check: Critique of Olympic Rules on Sex and Gender, 31 Wis. J.L.
GENDER & Soc’Y 29, 48 (2OI6) (“The approach of eliminating gender categories [in sporting
events] would also be inclusive of those individuals whose gender-identities are non-binary or
fluid.”); Alex Channon et al., Introduction: The Promises and Pitfalls of Sex Integration in Sport
and Physical Culture, in SEX INTEGRATION IN SPORT AND PHYSICAL CULTURE 1, 3 (Alex
Channon et al. eds., 2017) (discussing, as a benefit of sex-integrated sports, “greater inclusivity of
non-binary people”).

450 See Ronald S. Katz & Robert W. Luckinbill, Changing Sex/Gender Roles and Sport, 28 STAN.
L. & POL’Y REV. 215, 241 (2017) (“[I1n a gender-fluid era, by what right does an organization or
person dictate to another on the subject of that other’s sex or gender?”).

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Nonbinary people’s narratives of the cruelties and indignities of classi-
fication are also persuasive arguments for integrating sports.45 1 Nonbi-
nary athlete Lauren Lubin has said: “The first identity I ever formed, as
a young child, was ‘I’m an athlete,’ before even a gender.’ 452 Lubin
played women’s college basketball until the dissonance with their inter-
nal sense of nonbinary identity caused them to quit the team and lose
their scholarship.

453

Reenvisioning sports without sex classifications aligns with the goals
of much feminist theory. A large body of sociological research describes
how sports inculcate gender roles: producing, maintaining, and validat-
ing male privilege and virtue.454 While women’s sports have given
women a chance to “challenge the notion that it is only men who can be
brave, competitive, and strong,” the fact that sports remain sex segre-
gated sends the message that men will always have the edge with respect
to these characteristics.

455

There are already many examples of integrated sports leagues for
children in grades K-12.456 Prior to puberty, children can play in the
same games, and arguments about safety and fairness find no basis in
statistical differences between boys’ and girls’ bodies.457 Some sociolog-
ical research supports the argument that at older ages, desegregated
events – such as equestrian competitions, cheerleading, karate, tennis,
korfball, quidditch, and floorball – can emphasize “collaboration and
teamwork” over “policing gender divisions and broadly help to establish

451 Jon Shadel, This Gender Neutral Athlete Wants to End Sex Segregation in Sports, VICE (Nov.

I, 2Q16, 4:28 PM), https://www.vice.com/en-us/article/mvk33x/this-gender-neutral-athlete-wants-
to-end-sex-segregation-in-sports [https:Hperma.cc/AKD9-5 3Y6] (observing that nonbinary “athletes
face a dizzying, seemingly impossible choice: disregard their gender identity – arguably an un-
healthy and wholly unacceptable option given the negative effects of remaining closeted – or sac-
rifice their love of sports”).

452 NON-BINARY INCLUSION IN SPORTS (WNET New York Public Media 2015), https:/tpt.
pbslearningmedia.org/resource/fpi 7.lgbtq.werun.nonbinary/non-binary-inclusion-in-sports/ [https:/
perma.cc/K9Q2-LQVB].

453 Kristin Russo, An Athlete Makes the Case for Gender Not to Matter in Sports, TIME (Oct. 7,
2015), http://time.com/4o63o96/how-important-is-gender/ [https:Hperma.cc/6Z9 2-5J97].

454 Channon et al., supra note 449, at i.
455 Id. at 2; see also Nancy Leong, Against Women’s Sports, 95 WASH. U. L. REV. 1249, 1275-78

(2018) (discussing how sex-segregated sports perpetuate gender stereotypes).
456 Scott Skinner-Thompson & Ilona M. Turner, Title IX’s Protections for Transgender Student

Athletes, 28 WIS. J.L. GENDER & Soc’Y 271, 274-79 (2013).
457 See id. at 287; see also Susanna Stenevi Lundgren et al., Normative Data for Tests of Neuro-

muscular Performance and DXA-Derived Lean Body Mass and Fat Mass in Pre-Pubertal Children,
ioo ACTA PEDIATRICA 1359, 1361 (2011) (finding “no constant gender differences” in neuromus-
cular performance such as balance and jumping in boys and girls under age twelve); Marnee J.
McKay et al., Reference Values for Developing Responsive Functional Outcome Measures Across
the Lifespan, 88 NEUROLOGY 1512, 1516 (2017) (comparing physical capabilities of children aged
three to nine and finding no significant sex differences).

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THEY, THEM, AND THEIRS

positive, supportive, mutually respectful relationships between men and
women.”

45 8

Sports might be redesigned so as not to advantage male or female
bodies.45 9 The Paralympic movement demonstrates how restructured
games and the integration of technology can facilitate competition for
athletes with different types of bodies.460 It also suggests ways athletes
might be classified other than by sex, including by age, body mass, or
performance level.46 1 Handicaps in golf and weight classes in wrestling
are examples.462 At some point in the future, the advantages of male
bodies might be leveled out by genetic enhancements or e-sports.

4 63

When asked about how sports will change to include nonbinary people,
Lubin said: “There’s not a single answer. I believe this is going to be
the culmination of many different disciplines and institutions coming
together to reorganize themselves.

‘ 464

But in the short term, inclusion of nonbinary athletes may require
integration into sporting events that are segregated by sex (or that, like

458 Channon et al., supra note 449, at 3; see, e.g., Eric Anderson, “I Used to Think Women Were

Weak”. Orthodox Masculinity, Gender Segregation, and Sport, 23 Soc. F. 257, 258 (2008) (studying
“heterosexual men who were first socialized into the masculinized sport of high school football but
later joined the feminized sport of collegiate cheerleading” and finding that “[v]irtually all inform-
ants who had not previously respected women’s athleticism reported changing their attitudes; and
all informants said they had learned to better respect women’s leadership abilities and to value their
friendship”); Adam Cohen et al., Investigating a Coed Sport’s Ability to Encourage Inclusion and
Equality, 28 J. SPORT MGMT. 220, 226 (2014) (conducting qualitative analysis of the coed sport
quidditch, including surveys and focus groups, and finding that “both females and males reported
a stereotype reduction of the opposite gender occurring due to their participation in the sport”).
This is not to say integrated sports are necessarily egalitarian; paternalistic sex stereotypes and male
dominance may simply change form in integrated games. See, e.g., Channon et al., supra note 449,
at 4 (offering examples); Cohen et al., supra, at 230 (noting that among quidditch players, “some
males held a degree of ambivalent sexism toward their female teammates … commend[ing] them
for their efforts, but maintain[ing] the belief that they are sacrificing competitiveness for the sake
of fairness or inclusivity”).

459 See Leong, supra note 455, at 1286-87 (imagining a gymnastics competition combining men’s
and women’s events, “floor, vault, beam, parallel bars, uneven parallel bars, high bar, pommel horse,
and rings,” in which the best all-around athlete would win).

460 For a critical take, see generally DAVID HOWE, THE CULTURAL POLITICS OF THE PARA-
LYMPIC MOVEMENT 120-52 (2008).

461 See, e.g., Sean M. Tweedy et al., Paralympic Classification: Conceptual Basis, Current Meth-
ods, and Research Update, 6 PM&R Sii, S12 (2014); see also Leong, supra note 455, at 1284.

462 Another example is a recreational tennis league that divides athletes into A, B, C, and D skill
levels, rather than by gender. See DAVIS, supra note 288, at I38.

463 Cf THE FUTURE OF SPORTS 14-15, 30-33 (Josh McHugh et al. eds., 2015), https://www.

gannett-cdn.com/usatoday/editorial/sports/The-Future-of-Sports-2 015 -Report. pdf [https://perma.
cc/4 DGP-98QN] (predicting that genetic enhancements for athletes will one day become common-
place and regulated and that e-sports will grow in popularity). To say this might be possible as a
technical matter is not to say it is likely that gaming culture will welcome non-male competitors.
Cf Giovanni Luca Ciampaglia, Can Online Gaming Ditch Its Sexist Ways?, THE CONVERSATION
(Nov. i6, 2017, 7:59 PM), https:Htheconversation.com/can-online-gaming-ditch-its-sexist-ways-
74493 [https:Hperma.cc/MB7 X-2CPX].

464 Shadel, supra note 451.

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mixed doubles tennis or pairs figure skating, require an athlete of each
sex).465 Integration requires careful analysis of the purposes for limiting
eligibility in each division, so that definitions of eligibility can be tailored
to meet those purposes.

4 6 6

The arguments in favor of excluding “non-males” (however defined)
from any male sports are weak. While some non-males may not have
the ability to compete at high levels, that is not an argument for exclud-
ing those who do.467 The exception for contact sports in Title IX’s im-
plementing regulations is much criticized.468 Courts have rejected the
argument that certain games are too dangerous for girls,469 and the num-
ber of girls playing football is on the rise.470 To the extent that male
games are too dangerous for women, girls, and nonbinary people, they
are likely too dangerous for men and boys as well.47 1 Paternalistic ar-
guments support banning these games, or changing the rules or equip-
ment to make them safer for everyone, rather than excluding non-males.
Arguments that nonbinary and female athletes degrade homosocial male
sporting experiences deserve particular skepticism for how they might
perpetuate toxic gender ideologies.

47 2

465 One alternative is a gender maximum rule. Quidditch, a game with seven athletes per team,

requires that teams may not have more than four or five players “who identify as the same gender
in play” at various points during the game. US QUIDDITCH RULEBOOK i0(12th ed. 2018), https:/
www.usquidditch.org/files/USQRulebook-i2.pdf [https://perma.cc/86QB-T3JL]. This rule applies

to “those who don’t identify within the binary gender system” as well as those who do. Id.
466 For an argument that this analysis is required by the Constitution’s Equal Protection Clause,

see Leong, supra note 455, at 1283-84.
467 See, e.g., Greene, supra note 443, at 136 (“[T]he skills gap, long used to justify exclusion of

females, is the best argument in favor of a reasonable one-way ratchet that allows women to par-
ticipate in male-only sports without extending the same opportunity to males who wish to partici-
pate in female-only sports.”); Katz & Luckinbill, supra note 450, at 226 (“[P]rohibiting females from
trying out for contact sports – has been consistently found by the courts to be unconstitutional….
Why should the i8o-pound woman be prevented from trying out for football when the 97-pound
male may do so?”); Skinner-Thompson & Turner, supra note 456, at 276 (“Put simply, courts have
often rejected essentialist arguments claiming that girls are physically incapable of participating in
youth sports with boys.”).

468 See, e.g., Greene, supra note 443, at 16o-63 (arguing that “[t]he contact sports exemption, even
if it directly affects only younger athletes, eventually affects the interest and abilities of older ones,”
id. at 16o; that it limits the number of teams on which women can be involved and thereby excludes
them from the educational, social, and health advantages of sports; and that it sends an expressive
message enforcing gender stereotypes).

469 Skinner-Thompson & Turner, supra note 456, at 275 (discussing cases rejecting arguments

about “keeping girls safe”).
470 Cork Gaines, The Number of Girls Playing High School Football Is on the Rise Even

Though Overall Participation Is Down, Bus. INSIDER (Oct. 3, 2o16, 2:47 PM), https:/www.
businessinsider.com/more-girls-are-playing-high-school-football -2o16-io [https:Hperma.cc/PPT7-

7DCA] (describing data from the National Federation of State High School Associations showing

an increasing number of girls playing football).
471 See Leong, supra note 455, at 1271-72.
472 See, e.g., Anderson, supra note 458, at 257 (discussing how “segregation of men into a homo-

social environment limits their social contact with women and fosters an oppositional masculinity

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As for women’s sports, this is a context in which gender neutrality
can have the disadvantage of precluding equal opportunity for
women.47 3 Where the competitive stakes are low, as with most high
school and amateur athletics, the best rule is one like California’s or
CrossFit’s: deference to a person’s choice to play in the women’s divi-
sion if it best matches their gender identity.474 Some nonbinary people
may be willing to play on women’s teams.475 A self-identification rule
is best because “equal opportunity” in this context means giving every-
one a chance to participate. It does not mean fairness in the sense of
leveling any natural advantage that was not the result of hard work and
training. Not just testosterone, but many traits give athletes advantages:
height, body mass, better eyesight, larger hands, coordination, and lung

that influences the reproduction of orthodox views regarding women”); Deborah L. Brake, Wres-
tling with Gender: Constructing Masculinity by Refusing to Wrestle Women, i3 NEV. L.J. 486, 488
(2013) (arguing that when boys refuse to wrestle girls, “what is really at stake in the incident is the
construction of masculinity, both the masculinity of the forfeiter and the masculinity of the sport of
wrestling – a masculinity that is deeply threatened by mixed-sex wrestling competition”); Channon
et al., supra note 449, at : (“[T]he exclusion of women from many high-profile sporting competitions
throughout much of the twentieth century preserved sport as a symbolic space for celebrating men’s
embodiment of. . . ‘masculine’ virtues, while the tendency to stigmatize and ridicule female athletes
when they did enter the ‘male’ sporting arena helped prevent them from effectively challenging the
legitimacy of men’s symbolic ownership of sport and its requisite qualities.”).

473 See Buzuvis, supra note 449, at 48-49.
474 See, e.g., CAL. EDUC. CODE § 221-.5 (f) (West 2018) (“A pupil shall be permitted to participate

in sex-segregated school programs and activities, including athletic teams and competitions, and
use facilities consistent with his or her gender identity, irrespective of the gender listed on records.”);
Mary Emily O’Hara, EXCLUSIVE: The CrossFit Games Will Now Allow Transgender Athletes to
Compete, THEM. (Aug. 4, 2oa’8), https://www.them.us/story/crossfit-games-trans-policy [https:/
perma.cc/UEZ4 -TSQM] (discussing the announcement by CrossFit’s CEO that “[iln the 20:19
CrossFit competitive season, starting with the Open, transgender athletes are welcome to partici-
pate in the division with which they identify”).

In 20:6, the Obama Department of Education took the position that Title IX requires that
schools defer to students’ gender identities rather than the sex assigned at birth, but the Trump
Administration rescinded that advice and is now reconsidering the issue. Dear Colleague Letter
from Sandra Battle, Acting Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ. & T.E. Wheeler,
II, Acting Assistant Attorney Gen. for Civil Rights, U.S. Dep’t of Justice (Feb. 22, 2017),
http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.docx [https://perma.cc/
SZX 3 -4 E82] (withdrawing the Obama Administration’s May 13, 2016 letter “in order to further
and more completely consider the legal issues involved”).

475 See, e.g., Kevin Majoros, Breaking Barriers for Non-binary Athletes, WASH. BLADE (Aug.
24, 2017, 3:51 PM), http://www.washingtonblade.com/2o17/08/24/breaking-barriers-non-binary-
athletes/ [https:Hperma.cc/X3JA-KPEG] (discussing competitive swimmer G Ryan who “identifies
as non-binary or genderqueer and swims on the women’s team at the University of Michigan”);
NCAA OFFICE OF INCLUSION, NCAA INCLUSION OF TRANSGENDER STUDENT-ATHLETES
-5 (201-1-), https://www.ncaa.org/sites/default/files/Transgender-Handbook_2011 Final.pdf [https://
perma.cc/UL7 N-A2L 7 ] (quoting Morgan Dickens, former Cornell basketball and rugby player, as
saying: “There are differences between being male and female, but being gender fluid doesn’t mean
I reject these differences, it just means I’m rejecting the idea that I have to be defined one way or
another”).

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capacity, among other accidents of birth.47 6 Some male athletes have
atypically high testosterone levels, but no one suggests they be barred
from competition.4 7 In any event, gains in “fairness” must be weighed
against the costs of subjecting intersex and transgender athletes to cruel
and demeaning sex-verification rules.

The specter of fraud haunts these discussions, but it is hard to find
evidence of recent bad faith claims to gender identity in sports, however
“bad faith” is defined.478 Due to continued stigma and bias against
transgender people, it is unlikely that many people would be willing to
claim a gender identity not their own in any public context. A more
likely “gender identity fraud” scenario is the man who chooses to identify
as nonbinary in an effort to show how lax the self-determination stand-
ard is and thereby undermine the case for nonbinary rights.47 9 A rule
against bad faith conduct would screen out these types of behavior. The
rule could forbid athletes from selecting nonbinary or female gender
identities for the sole purpose of prevailing in or disrupting athletic com-
petition. Such rules would not be inadministrable. The law of religious
accommodation offers a model for how to ensure that claims to identity
are not made insincerely.

4 0

There may be different considerations in elite sports. There is typi-
cally a ten to twelve percent performance difference between male and

476 Buzuvis, supra note 449, at 43 (citing Chand v. Athletics Fed’n of India, CAS 2014/A/3759
260 (CAS July 24, 2015)) (listing “increased hemoglobin levels caused by defective EPO receptors,

tallness (in some sports), shortness (in others), low body mass index, unusually high lung capacity,
mitochondrial conditions that increase aerobic capacity, acromegaly (i.e. large hands and feet), per-
fect vision, and unusually efficient systems for muscle growth and blood flow”).

477 See id.
478 See Katz & Luckinbill, supra note 450, at 242.
479 Similar protest strategies have been attempted in school restroom cases. See Doe v. Reg’l

Sch. Unit 26, 86 A. 3 d 6cc, 603 (Me. 2014) (discussing how a transgender girl’s “use of the girls’
bathroom went smoothly, with no complaints from other students’ parents, until a male student
followed her into the restroom on two separate occasions, claiming that he, too, was entitled to use
the girls’ bathroom. The student was acting on instructions from his grandfather, who was his
guardian and was strongly opposed to the school’s decision to allow [the transgender girl] to use the
girls’ bathroom”).

480 Courts are generally reluctant to find religious beliefs to be insincere. See Frederick Mark
Gedicks, “Substantial” Burdens: How Courts May (and Why They Must) Judge Burdens on Reli-
gion Under RFRA, 85 GEO. WASH. L. REV. 94, 112 (2017) (“Even when religiously contradictory
behavior is evident, the courts defer to the claimant’s explanations.”). But they can tell when a
claim to religious faith is no more than a sham to gain some particular benefit. See, e.g., Ideal Life
Church of Lake Elmo v. County of Washington, 304 N.W.2d 308, 318 (Minn. 1981) (holding that
an institution was not a “church” where “the primary, and perhaps the sole, purpose for incorporat-
ing… was to provide [taxpayers] the benefit of a tax-free home while maintaining the same use
and control they had prior to incorporation”); see also Ben Adams & Cynthia Barmore, Essay,
Questioning Sincerity: The Role of the Courts After Hobby Lobby, 67 STAN. L. REV. ONLINE 59,
59-6o (2014) (“There is a long tradition of courts competently scrutinizing asserted religious beliefs
for sincerity without delving into their validity or verity.”).

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THEY, THEM, AND THEIRS

female competitors at elite levels.48 1 Testosterone may be the reason,
although the evidence on this is, to say the least, complex.48 2 Professor
Erin Buzuvis has argued: “If eliminating the binary in sport is a strategy
for challenging gender stereotypes, it is one with great potential to back-
fire.14 3 At elite levels, gender neutrality would reduce the number of
women who qualify for national teams and win medals.48 4 If only a few
women succeed, they will be written off as “outliers” and their small num-
bers will be used as evidence of women’s natural athletic inferiority ra-
ther than “an indictment of society’s suppression of female athleticism.

485

This Article’s task is to argue nonbinary gender inclusion is feasible;
it cannot settle broader debates about intersex and transgender inclusion
in elite women’s sports. But one principle to consider might be protect-
ing the reliance interests of those people who have competed in women’s
sports all their lives.4 6 This principle avoids hormonal testing of ath-
letes with intersex variations, which is widely regarded as a public ref-
erendum on a female athlete’s gender identity.48 7 Athletes with intersex
variations disqualified from women’s sports have faced stigmatization
and shunning, and as a result of one case, an athlete attempted sui-
cide.4 8 On the ground, sex verification practices are suspiciously inter-
twined with racialized notions of femininity; it cannot be ignored that

481 See, e.g., Robinson Meyer, We Thought Female Athletes Were Catching Up to Men, but They’re

Not, THE ATLANTIC (Aug. 9, 2012), https://www.theatlantic.com/technology/archive/2012/o/8we-
thought-female-athletes-were-catching-up-to-men-but-theyre-not/260927/ [https:Hperma.cc/B6Y5-
98HD].

482 Buzuvis, supra note 449, at 40-42 (discussing evidence that there is no linear relationship
between endogenous testosterone and performance, that elite male and female performance levels
often overlap, that women whose bodies are insensitive to testosterone are overrepresented among
female athletes, and that many male athletes have low testosterone levels). But see Doriane
Lambelet Coleman, Sex in Sport, So LAW & CONTEMP. PROBS. 63, 70-84 (2017) (arguing the ten
to twelve percent performance gap is driven by differences in testosterone, even if there is no perfect
mathematical correlation).

483 Buzuvis, supra note 449, at 48.
484 Id.
485 Id. at 49.
486 Id. at 54-55 (“Reliance is the legal principle that says in some circumstances, one’s rights are

determined by the fact that one has been exercising those rights for a long time on the reasonable
assumption that those rights were secure.” Id. at 54.); see also Katz & Luckinbill, supra note 450,
at 241 (“[I]ndividuals should not have to go through invasive, humiliating and degrading procedures
about one of the most personal subjects, one’s sex or gender.”). Bioethicist Alice Dreger has long
taken this position. See, e.g., Alice Dreger, Intersex and Sports: Back to the Same Old Game, HAS-
TINGS CTR.: BIOETHICS . (Jan. 22, 2oo), https://www.thehastingscenter.org/intersex-and-sports-
back-to-the-same-old-game/ [https:Hperma.cc/ELE4 -63 7N].

487 See Buzuvis, supra note 449, at 47 (“[Als long as the categories for participation are still called
‘men’s’ and ‘women’s,’ (rather than ‘above’ and ‘below’ io nmol/L) the hormone standard will
likely be interpreted as a proxy for sex verification.”).

488 Id. at 37.

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women of color from the Global South are disproportionately (if not
exclusively) scrutinized by sporting authorities.48 9

Some transgender men may also have reliance interests in playing
women’s sports, having been denied equal athletic opportunities for
most of their lives.490 But there are concerns that, due to high levels of
testosterone from hormone treatments, these athletes will dominate and
crowd out opportunities for others. Accordingly, the NCAA allows
transgender men who are not taking testosterone to play women’s
sports.49 1 Transgender women, however, may not have had the same
history of disadvantage. Buzuvis therefore suggests a rule that “would
exclude transgender women who have not undergone hormone treat-
ment” from elite women’s sports unless they “bring their testosterone
level below the ‘normal male range’ cutoff of Ia nmol/L.’ ‘ 492 This same
rationale would support allowing elite nonbinary athletes who have long
competed in women’s sports to continue to do so, as long as they are not
pursuing masculinizing hormonal therapy.

4 93

While nonbinary athletes present a long-term challenge to sex-segre-
gated sports, in the short term, they may prompt rethinking of the rules
of eligibility for particular events, along with transgender and intersex
athletes.

3. Workplaces. – Another potential argument against nonbinary in-
clusion is that the labor market requires that men and women do differ-
ent jobs. Although the majority of job categories are filled primarily by
women (like administrative assistant) or men (like truck driver), formal
occupational sex segregation is rare.4 94 Title VII bars employer rules

489 Katrina Karkazis & Rebecca M. Jordan-Young, The Powers of Testosterone: Obscuring Race

and Regional Bias in the Regulation of Women Athletes, 30 FEMINIST FORMATIONS, 2018, at I,
6 (discussing how “black and brown women from the Global South come to be the exclusive targets
of the supposedly new, neutral, and scientific T regulation”).

490 Buzuvis, supra note 449, at 51-52 (“[A] transgender man may by virtue of his female body
and birth assignment have been raised as female, a designation that influenced – and likely lim-
ited -his athletic opportunities.” Id. at 52.).

491 Id. at 52 (citing NCAA OFFICE OF INCLUSION, supra note 475, at 8).
492 Id. at 53. The International Association of Athletics Federations now recommends a thresh-

old of 5 nmol/L for certain track and field events. Press Release, Int’l Ass’n of Athletics Fed’ns,
IAAF Introduces New Eligibility Regulations for Female Classification (Apr. 26, 2oi8), https:/
www.iaaf.org/news/press-release/eligibility-regulations-for-female-classifica [https:Hperma.cc/3 LSA-
GCE5 ].

493 See Buzuvis, supra note 449, at 55. For an argument that it is unwise and unfair to require
any hormonal treatment as a condition of participation in collegiate sports, see Elliot S. Rozenberg,
The NCAA’s Transgender Student-Athlete Policy: How Attempting to Be More Inclusive Has Led to

Gender and Gender-Identity Discrimination, 22 SPORTS LAW. J. 193, 207-08 (2015).
494 See, e.g., ARJANE HEGEWISCH ET AL., INST. FOR WOMEN’S POLICY RESEARCH, BRIEF-

ING PAPER: SEPARATE AND NOT EQUAL? GENDER SEGREGATION IN THE LABOR MARKET

AND THE GENDER WAGE GAP 13 (2010).

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THEY, THEM, AND THEIRS

that classify by sex,495 except where sex is a bona fide occupational qual-
ification (BFOQ).4 9 6 This defense is construed “narrowly, ‘ 4 97 and ap-
plies to a diminishing number of jobs. The simple fact that customers
might prefer men or women cannot support a BFOQ defense.4 98 Nor
can stereotypes about men or women.499 Apart from the BFOQ defense,
there are also judicially crafted exceptions to Title VII’s ban on explicit
sex-based classifications with respect to sex-differentiated dress codes
and physical standards.5 0 0 In light of the small number of remaining
employment contexts in which binary sex segregation is permissible, the
main challenge in integrating nonbinary people into employment mar-
kets is overcoming the biases against them. Nonetheless, nonbinary
workers may prompt renewed scrutiny of the validity of BFOQ de-
fenses, dress codes, and physical standards, requiring that employers
and courts rethink whether sex classifications meet important interests
or reaffirm stereotypes.

(a) The BFOQ Defense. – The most commonly accepted sex-based
BFOQ argument is that certain positions must be filled by men or
women to protect the privacy interests of patients, customers, or inmates
in being viewed or touched only by members of the same sex.5 0 1 To the
extent that nonbinary people throw a wrench in this doctrine, it is good
riddance. The doctrine tends to disadvantage women in the labor mar-
ket.5 0 2 The cases are premised on a troubling assumption of universal

495 See, e.g., City of L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 709 (-978).
496 42 U.S.C. § 2oooe-2(e) (2012) (allowing discrimination “on the basis of … sex … in those

certain instances where … sex … is a bona fide occupational qualification reasonably necessary
to the normal operation of that particular business or enterprise”).

497 Int’l Union, UAW v. Johnson Controls, Inc., 499 U.S. x87, 201 (x991).
498 See, e.g., Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 389 (5 th Cir. -971) (“[I]t would

be totally anomalous if we were to allow the preferences and prejudices of the customers to deter-
mine whether the sex discrimination was valid. Indeed, it was, to a large extent, these very preju-
dices the Act was meant to overcome.”); 29 C.F.R. § x6o4.2(a)(I) (2018).

499 See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542, 545 (x971) (Marshall, J., concurring)
(“By adding the prohibition against job discrimination based on sex to the 1964 Civil Rights Act
Congress intended to prevent employers from refusing ‘to hire an individual based on stereotyped
characterizations of the sexes.’ . . . The exception for a ‘bona fide occupational qualification’ was
not intended to swallow the rule.” (footnote omitted)).

500 Theories of discrimination that rely on statistical showings and affirmative action are dis-

cussed supra pp. 952 -54.
501 Amy Kapczynski, Note, Same-Sex Privacy and the Limits of Antidiscrimination Law, 112

YALE L.J. 1257, 1259 -6o (2003) (describing cases in which courts accepted this defense in “contexts
including labor and delivery rooms, mental hospitals, youth centers, washrooms, and nursing
homes” (footnotes omitted)).

502 Id. at 1283 (describing how same-sex privacy BFOQs disadvantage women in labor markets
because in the prison context, ninety-five percent of prisoners are men, and in the nursing context,
they prevent men from filling jobs in lower-status care work); see also KATHARINE T. BARTLETT
& DEBORAH L. RHODE, GENDER AND LAW: THEORY, DOCTRINE, COMMENTARY x 1 6-x 7 (4 th

ed. 2006) (arguing that the BFOQ defense reinforces “age-old stereotypes that Title VII was meant

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heterosexuality – that there is no same-sex sexual desire.5 0 3 The cases
overvalue traditional notions of female modesty and discount threats to
men.5 0 4 They sanction stereotypes about the female gaze as nonthreat-
ening50 5 and men as natural predators.5 0 6 They are “shot through with
discriminatory attitudes about class and possibly race.5 0 7 To give legal
sanction to these attitudes is troubling.

However, there may be instances in which the privacy BFOQ holds
up to scrutiny, involving physical touching or bodily exposure of vulner-
able populations. Professor Amy Kapczynski has explained “the same-
sex privacy BFOQ” as “a concession to the way people experience cross-
sex bodily exposure as a threat or risk. 5 08, She gives an example of a
woman in a prison who was forced to undergo a clothed body search by
a male correctional officer. The woman “was so distressed that ‘her
fingers had to be pried loose from the bars she had grabbed; she returned
to her cell-block, vomited, and broke down.’°5 0 9 Kapczynski reflects:

We could insist, of course, that her reaction was a kind of false conscious-
ness, that she was misidentifying all men as a threat, or at least misidenti-
fying this man as a threat. There is a way in which these things in fact
might be true – but is this the place to make that point? Would it be
possible, in a context in which approximately eighty-five percent of women
have been sexually or physically abused by men, to remake associations
between gender and assault by ignoring them?

5 10

to condemn – i.e., women’s role washing and cleaning up after people, and men’s role as the skilled
professional,” id. at 117).

503 Kapczynski, supra note 50i, at 1287.
504 See id. at 1291 (discussing how courts disregard the threat of same-sex assault against male

inmates).
505 See Kim Shayo Buchanan, Engendering Rape, 59 UCLA L. REV. 1630, 1638-39 (2012) (“[S]ur-

vey respondents consistently report much higher rates of sexual victimization by women staff than
by fellow inmates.”).

506 See, e.g., Ambat v. City and County of San Francisco, 757 F.3 d 1017, 1028 (gth Cir. 2014)
(reversing grant of summary judgment on a prison employer’s BFOQ defense because “the County
has not shown that the Sheriff had ‘a substantial basis for believing that all or nearly all’ male
deputies were likely to engage in sexual misconduct with female inmates, nor has it shown that ‘it
is impossible or highly impractical … to insure by individual testing’ that a male deputy does not
pose such a threat” (omission in original)); Breiner v. Nev. Dep’t of Corr., 61o F.3 d 1202, 12 11 (gth
Cir. 2010) (rejecting a BFOQ defense based on arguments that male correctional officers presented
a risk of sexual misconduct in a women’s prison as based on “unproven and invidious stereotype[s]”);
Kapczynski, supra note 5O1, at 1281.

507 Kapczynski, supra note 5O1, at 1286 (“Courts have been more solicitous of the privacy inter-
ests of white collar men who fear that a cleaning woman might knock on their bathroom door than
of the privacy interests of women and men incarcerated in prisons that are often the site of severe
violations of physical and sexual integrity.” (footnote omitted)).

508 Id. at 1274.
509 Id. at 1288 (quoting Jordan v. Gardner, 986 F.2d 1521, 1534 (gth Cir. 1993) (Reinhardt, J.,

concurring)).
510 Id. (footnote omitted). Men are also victims of sexual assault, including by other men.

Bennett Capers, Real Rape Too, 99 CALIF. L. REV. 1259, 1266-71 (2011). However, the law con-
cedes here to social norms that construct cross-gender exposure as uniquely threatening to one’s

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THEY, THEM, AND THEIRS

Kapczynski proposes that the costs of changing gender norms should
not be imposed on particularly vulnerable persons, such as inmates and
patients in residential care.

511

The best approach to this problem is to ask: “Might there be tech-
nologies, if not today, then tomorrow, that can accomplish the state’s
interest in engaging in bodily searches to maintain safety without raising
the troubling issue of gender?’ 5 12 In the interim, integration may be
best. Whether any particular nonbinary person might trigger fear of
sexual assault in vulnerable populations is not a question that can be
answered in general, due to the diversity of the nonbinary population.
Fears of sexual assault from nonbinary people may stem from anti-
transgender biases in general, that, like racism, the law cannot en-
dorse.5 13 In the limited set of jobs involving bodily contact with vul-
nerable people, or exposure of naked bodies, a compromise would be to
exclude those nonbinary people who will not identify as women (or men)
for purposes of the job.

The BFOQ defense might also justify sex-specific casting calls in
entertainment,5 14 and sex-specific hiring for sex work, although there is
little litigation on these questions.5 15 The idea of a sex BFOQ for acting
and sex work that might exclude transgender people is a strange one, as
transgender people have long been actors and sex workers.5 16 In the

dignity. See, e.g., Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3 d 1135, 1142 ( 9th Cir. 2011) (en
banc) (holding that a strip search of a male inmate was unreasonable under the Fourth Amendment
because it was conducted by a female officer in the absence of an emergency).

511 Kapczynski, supra note 5o1, at 1291-92; see also Teamsters Local Union No. 117 v. Wash.

Dep’t of Corr., 789 F.3 d 979, 990, 994 ( 9 th Cir. 2015) (affirming summary judgment to a prison

employer on its BFOQ defense for a narrow category of female-only job assignments to ensure
inmate privacy, improve security by allowing more pat downs, and prevent sexual assaults); Jones
v. Henryville Corr. Facility, 220 F. Supp. 3 d 923, 929 (S.D. Ind. 2oi6) (granting summary judgment
to an employer on its BFOQ defense where the prison preferred male employees for particular shifts
in case a strip search of male inmates might be required).

512 I. Bennett Capers, Unsexing the Fourth Amendment, 48 U.C. DAVIS L. REV. 855, 916 (2015)
(footnotes omitted) (discussing advances in surveillance technologies).

513 Cf TLDEF Helps Transgender Man Achieve Settlement in Discrimination Suit,
TRANSGENDER LEGAL DEF. & EDUC. FUND, http://www.transgenderlegal.org/headline-show.
php?id=429 [https:Hperma.cc/2DRK-3 NY 9 ] (discussing a 2011 settlement in a discrimination case
on behalf of a transgender man who was fired from a job “monitoring male outpatients as they
provided urine samples for drug testing” after his employer learned he was transgender).

514 See 29 C.F.R. § i6o4.2(a)(2) (2oi8); Russell K. Robinson, Casting and Caste-ing: Reconciling

Artistic Freedom and Antidiscrimination Norms, 95 CALIF. L. REV. I, 3 (2007).
515 Those cases discussed in Kimberly A. Yuracko, Private Nurses and Playboy Bunnies: Ex-

plaining Permissible Sex Discrimination, 92 CALIF. L. REV. 147, 157 & n.27 (2004), mostly involve
dicta about the possibility of this defense. For an argument that discriminatory preferences should
be allowed in “proximate sex work that involves physical contact or face-to-face interactions” be-
cause of the implications for “decisional privacy,” see Adrienne D. Davis, Regulating Sex Work:
Erotic Assimilationism, Erotic Exceptionalism, and the Challenge of Intimate Labor, 103 CALIF.
L. REV. 1195, 1269 (2015); and also id. at 1262-69.

516 Cf Case, supra note 25, at 12 n.23 (“I find it bizarre that sex is considered a BFOQ, in the
interests of ‘authenticity or genuineness,’ for the job of actor or actress. After all, the very essence

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1950s and I96as, “[tiransitioning often led to sharp downward mobility,
and for working class women especially, dancing and sex work were two
of the most likely jobs after surgery.5 1 7 Nonbinary people might also
play roles as men or women. Nonbinary actor Asia Kate Dillon, for
example, has played female characters5 Is as well as a nonbinary char-
acter.5 19 Dillon has said they wished to play male characters as well.

5 20

(b) Dress Codes. – Under a judicially crafted exception to Title VII,
employers are permitted to prescribe sex-differentiated dress codes, so
long as those dress codes do not impose “unequal burdens” on men and
women.5 2 1 This separate-but-equal doctrine is explained by courts’ de-
sires to protect employer prerogatives and comfortable gendered social
conventions, while avoiding subordination of women by ensuring
women are not overly burdened.5 22 Sex-differentiated dress codes may
not be problematic for transgender people, so long as they are permitted
to choose the set of rules consistent with their gender identities.5 23 But
they pose a challenge for those nonbinary people who do not feel com-
fortable complying with either set of rules.

While courts have not been persuaded by what they regard as free-
dom of expression arguments in favor of dress code noncompliance,

5 24

they are more likely to be persuaded by the claims of nonbinary people.
One reason is that many nonbinary people make arguments in the reg-
ister of immutability: that they have a core, authentic, essential identity
that they should not be forced to sacrifice to keep their jobs.5 25 A second
reason is the increasing uptake of the argument that binary gender is

of this job is to pretend to be something one is not. All that a producer should be allowed to require
is that the pretense be convincing.” (citation omitted)).

517 See Margot Canaday, Pink Precariat: LGBT Workers in the Shadow of Civil Rights, 1945-

2000 ch. 2, at 40 (Oct. 27, 2017) (unpublished manuscript) (on file with the Harvard Law School
Library). Professor Canaday discusses transgender soap opera star Aleshia Brevard, who had a
successful career as an actress in the i96os. Id. at 35-40.

518 Julie Miller, Meet the Actor Breaking Down Hollywood’s Gender Barriers, VANITY FAIR
(May 5, 2017, ‘:2’ PM), https://www.vanityfair.com/hollywood/2o17/05/asia-kate-dillon-mtv-
awards [https://perma.cc/FgBU-4 Z8S] (mentioning Asia Kate Dillon’s role as a female character on
the television show Orange is the New Black).

519 The Ellen DeGeneres Show (CBS television broadcast Mar. 20, 2017), https:/www.
youtube.com/watch?v=f97aLkl-kWc [https:Hperma.cc/D3 VC-FPgX] (discussing the character
Taylor Mason on Billions).

520 Id. (discussing their childhood desire to play the title role in Oliver!).
521 See, e.g., Jespersen v. Harrah’s Operating Co., 444 F.3 d 1104, iio8-11 (9th Cir. 2006) (en

banc).
522 See YURACKO, supra note 30, at 24.
523 See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3 d 56o, 572- 7 4 (6th Cir. 2018)

(rejecting the argument that enforcement of a sex-specific dress code that required men to wear a
pants-suit with a necktie and women to wear a skirt-suit would be a defense against a discrimina-
tion suit brought by a transgender woman).

524 See YURACKO, supra note 30, at 137-46.
525 See Clarke, supra note 43, at 23-27 (discussing the persuasiveness of the “new immutability,”

and the drawbacks of this argument).

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THEY, THEM, AND THEIRS

itself a subordinating sex-stereotype that may not be enforced.5 26 And
a third reason is that, as nonbinary gender presentations become more
mainstream, the implicit assumption that they are disruptive to em-
ployer prerogatives loses force.5 27 This mainstreaming also makes it less
likely that employers will respond to calls for neutrality by insisting that
all workers dress in a blandly androgynous manner.

5 28

(c) Physical Standards. – As for differential physical standards,
5 29

many of the same arguments that apply to segregated sports apply in
this context as well. 5 30 But here, sex neutrality may be the best ap-
proach: leveling down to the minimum standard required to do the job.
Courts have gone wrong by inventing legal rules that ask only whether
different rules for men and women are “separate but equal,” and giving
no consideration to whether the standard has any relationship to the
job.53 1 Disparate standards may perpetuate false stereotypes about
women’s inferiority for law enforcement and fire-fighting jobs.5 3 2 An
inquiry into the business reasons for disparate standards is likely to re-
veal that the bar is set too high for men: if women can do the job by
meeting a lower standard, then men can too.

5 33

526 See supra note 176.
527 Cf YURACKO, supra note 3o, at 146.
528 But see id. at 52 (“The employer who does not want to employ men in bob haircuts will simply

not make this an option under its dress code, even if it does not mind women wearing them.”).
529 A 2003 study found that approximately twenty-seven percent of police departments surveyed

that use physical fitness tests apply different cutoffs for men and women. Kimberly A. Lonsway,
Tearing Down the Wall: Problems with Consistency, Validity, and Adverse Impact of Physical Agil-
ity Testing in Police Selection, 6 POLICE Q. 237, 258 (2003).

530 See supra section III.C.2, pp. 966-74.
531 In one recent case, Bauer v. Lynch, 812 F.3 d 340 (4 th Cir. 2oi6), the Fourth Circuit applied

the judicially invented “equal burdens” analysis, id. at 349, which asks only if men and women are
equally burdened by separate tests. Id. at 349-5I (upholding a sex-differentiated standard for a
push-up test against a challenge by a male applicant for a position as an FBI special agent). But
the Supreme Court has prescribed a different rule in an analogous situation involving race. See
Ricci v. DeStefano, 557 U.S. 557, 585 (2009). Under Ricci, a higher standard for men would only
be allowed if an employer had a strong basis in evidence for believing that applying the same stand-
ard would have a disparate impact on women and if applying the same standard would not serve
a business necessity. See id. There is no basis in the text of Title VII for rejecting this rule in a sex
discrimination case. See Price Waterhouse v. Hopkins, 490 U.S. 228, 244 n.9 (989) (plurality opin-
ion) (“[T]he statute on its face treats each of the enumerated categories exactly the same.”). The

only potential difference is the BFOQ defense, which applies to sex but not race. Like the Ricci
framework, the BFOQ defense would have required an examination of the business justifications
for the disparate standard. See Eve A. Levin, Note, Gender-Normed Physical-Ability Tests Under
Title VII, ii8 COLUM. L. REV. 567, 590 (2018) (arguing the BFOQ defense should have applied in
Bauer).

532 Cf Ruth Colker, Rank-Order Physical Abilities Selection Devices for Traditionally Male Oc-
cupations as Gender-Based Employment Discrimination, I9 U.C. DAVIS L. REV. 761, 796 (1986)
(“The stereotype that ‘more strength is better’ has led employers to use physical performance tests
on a rank-order basis and thereby exclude women from employment opportunities.”).

533 Id.; see also Case, supra note 25, at 88-94.

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A number of nonbinary people serve in the military.534 Title VII
does not apply to the U.S. military, but the military too is moving away
from sex classifications, even with respect to physical fitness stand-
ards.535 Although the Supreme Court upheld the male-only draft system
in 1981,536 as of 2012, all positions in the U.S. military are formally open
to women.537 Only the Marine Corps still segregates male and female
troops for basic training.538 It is true that the status of transgender ser-
vicemembers is now uncertain. But the Trump Administration’s legal
arguments in favor of exclusion of transgender service members are
based in speculation about medical costs and do not differentiate be-
tween binary and nonbinary gender identities.

53 9

534 JAMES ET AL., supra note 2, at 168 (reporting that 22% of “non-binary people with male on
their original birth certificate” and 2% of “non-binary people with female on their original birth
certificate” were “[a]mong those with past or current military service”).

535 See Jeff Schogol, The PFT and CFT Can Be Gender Neutral. Here’s How., MARINE CORPS
TIMES (July IO, 2017), https://www.marinecorpstimes.com/off-duty/military-fitness/2017/07/10/the-

pft-and-cft-can-be-gender-neutral-here-s-how/ [https:Hperma.cc/YN94-BEXM] (quoting Lt. Col.
Misty Posey, commander of the Marine Corps’ only female recruit training battalion, as saying:

“Whether intentional or not, the Marine Corps has been evolving toward a single fitness standard”).
Air Force Major Mary Jennings Hegar argues, “I’ve seen firsthand that the warrior spirit is not
directly proportional to how many pull-ups you can do …. In my opinion, you keep the standards
very high and you maintain one standard. There shouldn’t be two standards for women and men,
there should be a standard for this job: To do this job, you should have to do these things. And

those requirements should be job-specific and not arbitrarily high in order to specifically keep
women out.” A Purple Heart Warrior Takes Aim at Military Inequality in “Shoot Like A Girl,”
NPR: FRESH AIR (Mar. 2, 2017, 2:56 PM) (alteration in original), https://www.npr.org/2017/03/
02/517944956/a-purple-heart-warrior-takes-aim-at-military-inequality-in-shoot-like-a-girl [https://

perma.cc/3 7NJ-FRAS].
536 See Rostker v. Goldberg, 453 U.S. 57, 83 (1981). Should the draft return, it seems likely it

would be gender neutral. See Jill Elaine Hasday, Fighting Women: The Military, Sex, and Extra-
judicial Constitutional Change, 93 MINN. L. REV. 96, 134 (2008) (“[E]xtrajudicial changes since
Rostker in women’s military status may undermine Rostker and support a Court judgment striking
down male-only registration, conscription eligibility, and combat positions.”). In 2o16, the Senate
approved a bill that would extend the draft to women, although the effort ultimately failed. Jennifer
Steinhauer, Senate Votes to Require Women to Register for the Draft, N.Y. TIMES (June 14, 2o6),
https://nyti.ms/iUtDflf [https:Hperma.cc/TRN3 -7UGS].

537 Memorandum from Martin E. Dempsey, Chairman of the Joint Chiefs of Staff & Leon
Panetta, Sec’y of Def., to Sec’ys of the Military Dep’ts, Acting Under Sec’y of Def. for Pers. and
Readiness & Chiefs of the Military Servs. (Jan. 24, 2013), https:Hdod.defense.gov/Portals/i/
Documents/WISRJointMemo.pdf [https://perma.cc/C7AM-MgGD]. Women have even begun

Navy SEAL training, although none have yet made it through. Nancy Coleman, First Woman
Enlists to Become a Navy SEAL, CNN (July 22, 2017, 11:19 PM), http://www.cnn.com/2017/07/
2 i/us/first-female-navy-candidates-seal-trnd/index.html [https:Hperma.cc/3 YCQ-6MNC].

538 Associated Press, The Marine Corps Is the Only Military Boot Camp that Separates Sexes.
That Could Soon Change in Southern California, L.A. TIMES (Aug. 8, 2017, 8:25 AM), https:/www.
latimes.com/nation/nationnow/la-na-women-in-combat-training-2017o88 -story.html [https:/perma.

cc/8JTV-Q6TG].
539 See Defendants’ Motion to Dismiss and Opposition to Plaintiffs’ Motion for a Preliminary

Injunction at 33-34, Karnoski v. Trump, No. CI7-1297 (W.D. Wash. Dec. 29, 2017), 2017 WL
7058272 (arguing that the exclusion “rests on the reasonable concern that at least some transgender

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D. Sex-Segregated Spaces

The law allows, and sometimes requires, sex segregation of public
and private spaces, most notably restrooms, changing facilities, and dor-
mitories. But these arrangements are exceptional, not inevitable, and
not a reason to resist the larger project of nonbinary inclusion.

i. Restrooms and Changing Facilities. – The restroom debate has
engendered political controversy over claims for recognition of the gen-
der identities of transgender people who are asking only to use the male
or female facilities.5 40 This Article is interested in how people with non-
binary gender identities change that debate. People with nonbinary gen-
der identities, like many transgender men and women, report avoiding
public restrooms altogether, with adverse health consequences.5 4 1 Be-
cause their gender presentations may not accord with norms, the pres-
ence of a nonbinary person in either the men’s or women’s restroom
may result in harassment or even violence.5 42 The best solution is neu-
trality: to phase out gendered restrooms in favor of spaces that provide
safety and privacy for each individual. This approach would require
legal, architectural, and social change – but that is not an argument for
disregarding nonbinary gender altogether. Stopgap efforts include inte-
gration: allowing people to use whichever male or female facility they
are most comfortable in, or recognition: creating third options such as
“family” restrooms, in addition to “male” and “female” ones.

individuals suffer from medical conditions that could impede the performance of their duties,” id.
at 33).

540 See, e.g., G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 714-15 (4 th Cir. 2o6),

vacated and remanded, -37 S. Ct. 1239 (2017) (mem.); Carcano v. McCrory, 203 F. Supp. 3 d 615,
621 (M.D.N.C. 2oi6).

541 JAMES ET AL., supra note 2, at 228 (reporting that 53% of nonbinary respondents to the 2015
USTS stated they “[s]ometimes or always avoid[ed] bathrooms in the past year”).

542 See, e.g., Hannah Boufford, Transgender, Non-binary Students Discuss Bathroom Concerns,
IND. DAILY STUDENT (Feb. 19, 2017, 7:58 PM), http://www.idsnews.com/article/2017/02/
transgender-non-binary-students-discuss-bathroom-concerns [https:Hperma.cc/NN2B-ZFGG] (quot-
ing nonbinary student Spencer Biery: “They say you can use whichever [restroom] you’re comfort-
able with …. And I’m not comfortable going into a restroom with a bunch of guys, but I also
know that if I went into a female restroom – which I also don’t really identify with – people
would cause even more of a ruckus.”); Ashe McGovern, Commentary, Bathroom Bills, Se~ries, and
the Erasure of Nonbinary Trans People, ADVOCATE (Apr. i, 2o6, 6:oi AM), https://www.advocate.
com/commentary/2o 16/4/ i/bathroom-bills-selfies-and-erasure-nonbinary-trans-people [https:/
perma.cc/NL5 H-KYTV] (“Most days, entering a bathroom means experiencing discomfort because
of disapproving, confused looks and comments. But it also brings up memories of when I’ve been
physically threatened and attacked because someone believes I’m in the ‘wrong bathroom.’ .. . As
a white, masculine-presenting person, I know experiences like mine, although far too common, are
also far from the worst ones.”); Jacob Tobia, Why All Bathrooms Should Be Gender-Neutral, TIME
(Mar. 23, 2017), http://time.com/4702962/gender-neutral-bathrooms/ [https:Hperma.cc/CVK2-
EQAJ] (“If I choose the women’s restroom, I risk facing panicked women who take one look at my
facial hair and assume that I’m a predator. If I choose the men’s restroom, I risk facing transphobic
men who, with one glance at my dangling earrings, begin hurling slurs or throwing punches.”).

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The ideal solution is neutrality: making all facilities “all gender,” with
larger, open, public spaces and fully enclosed private stalls that would
better ensure safety, accommodate families, and operate fairly and effi-
ciently.5 43 There are design ideas and architectural solutions that would
enable “people [to] sort themselves out by the equipment they need ra-
ther than what they putatively are. ‘544 As people gain experience using
all-gender facilities, concerns about safety, cleanliness, and discomfort
will deflate.

5 45

One revelation of the locker room debate is that many students –
whatever their gender identities – would prefer private spaces for un-
dressing.5 46 As the awareness and acceptability of same-sex desire have
increased, the assumption that same-sex spaces are “no sex” spaces has
withered.5 47 And students may want privacy for reasons other than
avoiding sexualization, such as maintaining autonomy over who can
view (and possibly judge and shame them for) their naked bodies.5 48 In
one case, an investigation revealed that girls in a girls’ locker room had

543 See, e.g., Mary Anne Case, Why Not Abolish Laws of Urinary Segregation?, in TOILET. PUB-
LIC RESTROOMS AND THE POLITICS OF SHARING 211, 220-25 (Harvey Molotch & Laura Noren
eds., 2010) (debunking the various arguments in favor of”urinary segregation”); Ruth Colker, Public
Restrooms: Flipping the Default Rules, 78 OHIO ST. L.J. 145, 152 (2017) (“We should transition
towards making large, communal public restrooms available to ‘all-comers,’ with a variety of pri-
vate toileting options, as well as have available a limited number of single-stall restrooms.”); Terry
S. Kogan, Public Restrooms and the Distorting of Transgender Identity, 95 N.C. L. REV. 1205, 1206,
1234-38 (2017) (discussing the sexist origins of separate men’s and women’s facilities, and arguing

that “all gender, multi-user public restrooms,” id. at 1238, would best protect everyone’s privacy
and safety); Joel Sanders & Susan Stryker, Stalled: Gender-Neutral Public Bathrooms, 115 S. AT-
LANTIC Q. 779, 781-88 (2o16) (similar).

544 Harvey Molotch, On Not Making History: What NYU Did with the Toilet and What It Means

for the World, in TOILET. PUBLIC RESTROOMS AND THE POLITICS OF SHARING, supra note
543, at 255, 265; see also Lisa Selin Davis, The Simple Design Solutions that Can Make Bathrooms
Better – For All Genders, QUARTZ (Mar. 16, 2017), https:Hqz.com/933704/how-to-design-
transgender-friendly-bathrooms-that-make-people-of-all-genders-feel-safe/ [https:Hperma.cc/LT82-
N 4 FV].

545 It is false that women’s restrooms provide safe hiding places from violent men, as men can

and do enter women’s restrooms to commit violence. Case, supra note 543, at 220. And it is false
that women’s restrooms are cleaner than men’s. See, e.g., Mary Schmich, Sharing Bathroom with
Men Raises Question of Cleanliness, CHI. TRIB. (Jan. 29, 2o16, 5:02 AM), http://www.chicagotribune.
com/news/columnists/schmich/ct-gender-neutral-bathroom-mary-schmich-o 129-2o 160128-column.
html [https://perma.cc/4 JMV-SRTM] (reporting the comment of the owner of one commercial clean-
ing service that women’s restrooms are dirtier “hands down”). In any event, it is unfair to subject
men or women to dirtier spaces based on stereotypes.

546 See Clarke, supra note 161, at 829.
547 Naomi Schoenbaum, Heteronormativity in Employment Discrimination Law, 56 WASHBURN

L.J. 245, 249 (2 0:17) (“[O]ne of the reasons behind sex-segregated bathrooms is the heteronormative
assumption that same-sex spaces will not entail sexuality or acts of sex.”).

548 Carcano v. McCrory, 203 F. Supp. 3d 615, 624 (M.D.N.C. 2o16) (discussing the testimony of
a school diversity officer who was “confident that the privacy interests of transgender and non-
transgender students alike could be accommodated through the same means used to accommodate
any student with body image or shyness issues” in locker rooms).

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THEY, THEM, AND THEIRS

devised a “buddy system” in which friends would hold up towels to pro-
tect one another’s privacy while they changed into swimming attire.

5 49

The best solution might be to provide privacy curtains for all students
who would prefer them.

But it is costly to upgrade old facilities. Moreover, some anachronis-
tic building codes require separate spaces.5 5 0 A pluralism approach is
an interim solution: creating additional “all gender” or “family” spaces
alongside the men’s and women’s ones.5 51 This approach is not optimal,
as it runs the risk of signaling that transgender people are different.
Transgender people might end up being required to use inadequate or
stigmatizing third facilities, when the male or female facilities would
accord with their gender identities.5 5 2 Another temporary solution is to
permit nonbinary people to use whichever facility they feel the safest in,
or which they believe best matches their sex or gender, just as
transgender men and women should be able to.

2. Housing. – Nonbinary inclusion may also threaten interests in
sex-segregated housing in unique institutional contexts such as incarcer-
ation, shelters, long-term care facilities, and education. Changing all
spaces to neutral ones is worth consideration. Barring that, institutions
can take an integration approach: determining the placement that will
be the safest and most affirming.

Third-category recognition strategies have been tried in some con-
texts, but they have major drawbacks. In the prison context, one exam-
ple is L.A. County’s special facility for LGBT inmates.5 5 3 This ap-
proach is problematic in many ways, including that prison officials rely
on stereotypes to determine which prisoners are LGBT; that it, in effect,
excludes bisexual people; that it constructs gay and transgender people
as victims; and that it forces inmates to disclose their LGBT status in
the violent context of incarceration.5 54 Sometimes correctional facilities
may have space to house nonbinary people in individual sleeping

549 Letter from Adele Rapport, Reg’l Dir., U.S. Dep’t of Educ., Office for Civil Rights, to Daniel
E. Cates, Superintendent, Twp. High Sch. Dist. 211, at 6 (Nov. 2, 2015), https://www2.ed.gov/
documents/press-releases/township-high-21 i-letter.pdf [https://perma.cc/A4 4 V-GET9].

550 Colker, supra note 543, at i6i.
551 See, e.g., Keress Weidner, I’m Non-binary, and “Trans-Accessible” Restrooms Should Include

Me, Too, GLSEN, https://www.glsen.org/blog/i%E2%8o%99m-non-binary-and-%E2%8o%gCtrans-
accessible%E2 %8o%gD-restrooms-should-include-me-too [https:Hperma.cc/V7 4 X-D6EN].

552 See, e.g., G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 716-17 (4 th Cir. 2ox6),
vacated and remanded, 137 S. Ct. 1239 (2017) (mem.).

553 Russell K. Robinson, Masculinity as Prison: Sexual Identity, Race, and Incarceration, 99

CALIF. L. REV. 1309, 1309 (2011) (“The Los Angeles County Men’s Jail segregates gay and
transgender inmates and says that it does so to protect them from sexual assault. But not all gay
and transgender inmates qualify for admission to the K6G unit. Transgender inmates must appear
transgender to staff that inspect them.”).

554 Id. (among other drawbacks).

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quarters, but there is a danger that they will end up isolated for too long,
which can be psychologically damaging.

555

As Professor Dean Spade has explained, gender-neutral prisons, or
“co-corrections,” are not unprecedented.556 Beginning in the 197os, a
number of minimum security prisons housed men and women together,
although men and women had separate living units.557 Some survey
research suggests these programs provided more safety and better
training opportunities for women, although they came with the disad-
vantage of increased surveillance.558 But “[iun the eyes of conservative
politicians,” these “minimum-security facilities were … coed ‘country
clubs. ‘559 The co-correctional experiment was a casualty of the “tough-
on-crime” policies of the i99os, and by 1999 there were no co-correc-
tional facilities left.560 The experiment is worth trying again.

From 2012 to 2018, the federal approach to housing gender-
nonconforming prisoners was integration: determining the best place-
ment for gender-nonconforming prisoners on a case-by-case basis.

5 61

Facilities were required to screen all individuals for their risk of perpe-
trating or experiencing sexual abuse, and to use that information to de-
termine housing.562 Rather than presenting an insurmountable chal-
lenge to sex classification in prisons, nonbinary people were assimilated
into it. This ought to have allayed any fears that nonbinary gender
might open a Pandora’s box of disruptive consequences for prison hous-
ing.563 Yet the Trump Administration has revised the policy to give

555 RHODES PERRY ET AL., N.Y.C. ADMIN. FOR CHILDREN’S SERVS., SAFE & RESPECTED:

POLICY, BEST PRACTICES, & GUIDANCE FOR SERVING TRANSGENDER, GENDER EXPAN-

SIVE, & NON-BINARY CHILDREN AND YOUTH INVOLVED IN THE CHILD WELFARE, DETEN-

TION, AND JUVENILE JUSTICE SYSTEMS 26-27 (2017), https://wwwi.nyc.gov/assets/acs/pdf/

lgbtq/SAFEAndRespectedUpdateo6 1417.pdf [https://perma.cc/56F4 -F4 8S].
556 Spade, supra note 28, at 81i.
557 MICHAEL WELCH, CORRECTIONS: A CRITICAL APPROACH 195 ( 3 d ed. 2011) (discussing

a co-correctional facility, the Federal Correctional Institution in Fort Worth, Texas, which housed
“low-risk and non-violent” inmates between 1971 and 1988).

558 Sue Mahan et al., Sexually Integrated Prisons: Advantages, Disadvantages and Some Recom-
mendations, 3 CRIM. JUST. POL’Y REV. 149, 149 (1989) (“Despite the shortcomings, staff and inmate
responses were in general agreement with the statement: ‘For the most part the co-corrections in-
stitution is an agreeable place.”‘); cf. James R. Davis, Co-Corrections in the U.S.: Housing Men and
Women Together Has Advantages and Disadvantages, 23 CORRECTIONS COMPENDIUM, Mar.
1998, at 1, 3 (discussing the need for longitudinal studies on co-correctional facilities).

559 WELCH, supra note 557, at 195-96.
560 Id. at 196 (“In view of the tough-on-crime campaigns and President George Bush’s initiative

to eliminate furlough and other unpopular policies, the U.S. Department of Justice worried that co-
corrections did not uphold the ‘tough’ image of prison life that the White House had been fiercely
promoting.”).

561 28 C.F.R. § 115.42(a), (c) (2018).

562 Id.

563 It should be worrying, however, that anyone can be assimilated into the system of mass in-

carceration. See generally ALEXANDER, supra note 229.

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THEY, THEM, AND THEIRS

primacy to “biological sex” for purposes of placement of transgender and
intersex inmates.

5 64

Economically marginalized transgender people encounter difficulties
seeking social services and shelters due to sex segregation.565 As a
result of fear of violence and harassment, transgender and nonbinary
people who need these services may not even approach them.566 The
Department of Housing and Urban Development’s regulations require
that single-sex emergency shelters and other services defer to a person’s
stated gender identity,5 67 but this policy does not assist in cases in which
a person’s identity is nonbinary.568 Gender-neutral social services may
be the best option for survivors of gender-based violence.569 Arguments
related to women’s safety are troubling in this context.570 The assump-
tions of masculine predation and invulnerability that underlie these de-
fenses of sex-segregated services are not supported and are harmful to
men.57 1 There is some anecdotal evidence that trainings and education
may help to undermine these assumptions.57 2 Providing all residents
with doors that lock, panic buttons, and other measures may improve
safety and ensure a sense of security.57 3 Nonetheless, for temporary shel-
ters, or those that cannot afford private rooms or apartments, there may
be a good argument for continuing to sex-segregate shared bedrooms
by gender identity57 4 – based on the same considerations that might

564 FED. BUREAU OF PRISONS, U.S. DEP’T OF JUSTICE, CHANGE NOTICE, TRANSGENDER

OFFENDER MANUAL 6 (2oI), https://www.bop.gov/policy/progstat/5200-04-cn-i.pdf [https:/
perma.cc/AAA2-V85R]. The policy allows assignment to facilities in accord with an inmate’s gen-
der identity in certain cases “where there has been significant progress towards transition as demon-
strated by medical and mental health history.” Id.

565 Spade, supra note 28, at 752-53, 778-80.
566 See, e.g., MICHAEL MUNSON & LOREE COOK-DANIELS, FORGE, GENDER-INTEGRATED

SHELTERS: EXPERIENCE AND ADVICE 7 (2oi6), http://forge-forward.org/wp-content/docs/
gender-integrated-shelter-interivews-FINAL.pdf [https:/perma.cc/gMWQ-G2ZG] (reporting on a
survey of iooo transgender and nonbinary individuals in 2011, in which nearly two-thirds stated
they would not, or might not, access domestic violence or rape crisis centers).

567 24 C.F.R. § 5.io6 (2oi8). The Violence Against Women Act (VAWA), which provides federal
grants to programs like emergency shelters, prohibits discrimination on the basis of “gender iden-

tity” by grant recipients. 34 U.S.C.A. § 122 91(b)(1 3)(A) (West 2018). It allows “sex-specific pro-
gramming” that “is necessary to the essential operation of a program,” so long as “comparable ser-

vices” are provided to those who are excluded from those programs. Id. § 122 9 1(b)(13 )(B).
568 MUNSON & COOK-DANIELS, supra note 566, at 8.
569 Id. (arguing that integrated services are the most inclusive way to respond to VAWA’s require-

ment of offering “comparable services” to all, and noting that alternatives, such as putting male

survivors up in hotels, are not cost effective).
570 Id. at 23-28 (listing objections to integration such as the concern that cisgender men would

assault women and children in the shelter).
571 Cf. id. at 12-17 (offering anecdotes from staff at integrated shelters about men, including men

who are not LGBTQ, who are survivors of abuse).
572 Id. at 31-33 (discussing experiences with training shelter staff).
573 Id. at 45-46.
574 See OFFICE FOR CIVIL RIGHTS, U.S. DEP’T OF JUSTICE, FREQUENTLY ASKED QUES-

TIONS: NONDISCRIMINATION GRANT CONDITION IN THE VIOLENCE AGAINST WOMEN

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support the privacy BFOQ.5 15 Nonbinary people might appropriately
be placed where they are most safe and comfortable.

5 7 6

As for housing on college campuses and in other educational and
professional contexts, institutions are adopting a pluralism strategy.
Campus housing is a problem for transgender students in general.

5 77

Many educational institutions are developing gender-inclusive housing
policies.57 8 One school, for example, “allows students to live in a suite
with others regardless of their sex or gender identity” if they “complete
a gender inclusive housing contract confirming their agreement.

’57 9

Some colleges designate certain residence halls or floors as gender neu-
tral, or provide living space for students who identify as LGBTQ.

58 0

Others provide case-by-case accommodation.
58 1

E. Health Care

In the health care domain, the ideal approach would be an individ-
ualized sort of recognition: to tailor care to the particular needs of each

REAUTHORIZATION ACT OF 2013, at 6-7 (2014) (discussing situations in which sex-segregated
housing may be appropriate, depending on the circumstances); MUNSON & COOK-DANIELS, supra
note 566, at 39.

575 See supra p. 976.
576 See MUNSON & COOK-DANIELS, supra note 566, at 39-40.
577 JAIME M. GRANT ET AL., INJUSTICE AT EVERY TURN: A REPORT OF THE NATIONAL

TRANSGENDER DISCRIMINATION SURVEY 33 (2011), https://transequality.org/sites/default/files/

docs/resources/NTDSReport.pdf [https://perma.cc/ZPgE-4 JKE] (reporting that nearly one-fifth of
respondents in higher education were denied appropriate campus housing, and five percent were

denied housing altogether).
578 Joseph Erbentraut, College Campuses Are More Trans-Inclusive than Ever but Still Have a

Long Way to Go, HUFFINGTON POST (Dec. 6, 2017), http://www.huffingtonpost.com/2015/05/8/
trans-friendly-colleges-n_7287702.html [https:Hperma.cc/4 6ZG-HX 5 2]. For a list of the 267 col-
leges and universities with gender-inclusive housing, see Colleges and Universities that Provide

Gender-Inclusive Housing, CAMPUS PRIDE, https://www.campuspride.org/tpc/gender-inclusive-
housing/ [https:Hperma.cc/TFF5 -P6QB].

579 Harvard College Handbook for Students: Gender Inclusive Housing, HARV. U., https:/

handbook.fas.harvard.edu/book/gender-neutral-housing [https:Hperma.cc/8345-NEFX].
580 See, e.g., Gender Neutral Program, DARTMOUTH GROUP DIRECTORY, http://dgd.

dartmouth.edu/group/450 [https:Hperma.cc/RXV9-RBVS] (“Gender neutral housing allows for
same-gender, opposite-gender or other-gender identities to live together regardless of biological sex.
This program floor will provide a living/learning environment where residents can learn about and

explore gender identity and expression in a supportive environment.”); Inclusive Housing, U. NEB.
OMAHA, https://www.unomaha.edu/student-life/housing-and-residential-life/prospective-students/
inclusive-housing.php [https:Hperma.cc/22T8-ULSW] (“Any student who is lesbian, gay, bisexual,
transgender, queer/questioning, intersex, asexual, not straight, gender nonconforming,
(LGBTQIA+) and/or ally is eligible to live in University housing including in an apartment desig-
nated as Gender-Inclusive Housing.”).

581 See, e.g., Contract, U. WIS.-MADISON, https://www.housing.wisc.edu/residence-halls/

assignments/contract/ [https:Hperma.cc/8FPA-5 W 7 E] (“University Housing acknowledges that not
all students may identify as female or male, and we want to create a welcoming environment for
you in the residence halls. We would be happy to work with students who may identify as
trans*gender, genderqueer, gender non-conforming, and/or non-binary regarding life in the halls.”).

[Vol. 132:894

THEY, THEM, AND THEIRS

nonbinary person, with awareness of the unique forms of bias that non-
binary people may face.5 2 Like other gender-nonconforming people,
nonbinary people may ask that reproductive health care be offered in
ways that do not assume gender roles or stereotypes.5 3 Nonbinary peo-
ple, like transgender men and women, may require transition-related
health care and be diagnosed with gender dysphoria.5 4 However, the
law requires no more than neutrality with respect to any transgender
patient.

Health care providers are beginning to recognize the unique needs
of nonbinary patients, and finding ways to provide more supportive and
affirming care.5 5 In addition to asking for a patient’s “sex” assigned at
birth, health care forms should also ask an open-ended question about
“current gender identity.’ 58 6 Patients must be assured that their re-
sponses to questions about sex and gender identity will be kept confi-
dential, like other health care information. One set of guidelines con-
cludes, “all of the recommended practices could be easily implemented
in any health care setting, without a need for large-scale structural
change, or extensive knowledge on gender identity.

‘5 7

Like transgender men and women, some nonbinary adults have
sought or received access to transition-related health care services, such
as hormone therapy, chest reduction or reconstruction, augmentation
mammoplasty, phalloplasty, vaginoplasty, hair removal, and voice sur-
gery, among other treatments.5 8 Nonbinary children, like other
transgender children, may seek reversible puberty-blocking hormones
and other treatments.5 9 Opponents liken such treatments to “elective

582 See NAT’L LGBT HEALTH EDUC. CTR., PROVIDING AFFIRMATIVE CARE FOR PA-

TIENTS WITH NON-BINARY GENDER IDENTITIES 8-9 (2 017), https://www.lgbthealtheducation.
org/wp-contentluploads/2 17/02/Providing-Affirmative-Care-for-People-with-Non-Binary-Gender-
Identities.pdf [https:Hperma.cc/DDS7-CJ5 T].

583 See supra note 366 and accompanying text.
584 See Richards et al., supra note 27, at 3; see also supra note 269 and accompanying text.
585 NAT’L LGBT HEALTH EDUC. CTR., supra note 582, at 3.
586 Id. at 7. One sample form offers the options “male,” “female,” and “choose not to disclose”

for sex assigned at birth. Id.
587 Id. at I3.
588 See, e.g., JAMES ET AL., supra note 2, at 99, ii fig.7.13, 103 fig.7.15. In general, people who

identify as nonbinary report less interest in these treatments than do transgender men and women.
See, e.g., id. at 99 (reporting that 95% of transgender men and women have wanted hormone ther-
apy, compared with 49% of nonbinary survey respondents).

589 See Sara Solovitch, When Kids Come in Saying They Are Transgender (or No Gender), These
Doctors Try to Help, WASH. POST (Jan. 21, 2018), http://wapo.st/2DrsBL4 [https:Hperma.cc/MG8N-
645Z].

In the United States, parental consent is generally required for minors seeking medical treat-
ments. Anne C. Dailey & Laura A. Rosenbury, The New Law of the Child, 127 YALE L.J. 1448,
1534-35 (2018). While there is research suggesting positive mental health outcomes from allowing
transgender children to “socially transition” to their male or female gender identity, more research
is required on nonbinary children. Jack L. Turban, Transgender Youth: The Building Evidence
Base for Early Social Transition, 56 J. AM. ACAD. CHILD & ADOLESCENT PSYCHIATRY 1o, 102

2019]

HARVARD LAW REVIEW

cosmetic surgery” that is not covered by insurance.590 But unlike elec-
tive cosmetic surgery, transition-related services are covered by health
insurers as medically necessary to treat gender dysphoria.59 1 Patients
should not be required to conform to binary concepts of gender to re-
ceive care. 592 Under section 1557 of the Affordable Care Act 593 (ACA),
any health program or activity that receives federal funds may not dis-
criminate on the basis of sex.594 Federal courts have interpreted such
language to preclude discrimination against someone due to transgender
identity.595 A set of 2o16 regulations interpreting the ACA clarified that
providers could not discriminate based on “[s]ex stereotypes” including
“the expectation that individuals will consistently identify with only one
gender.’ 596 Health plans may also be precluded from discriminating
against transgender patients under Title VII, which bars sex discrimi-
nation in employment;597 the Fourteenth Amendment, which bars sex
discrimination by public entities;598 and some state insurance laws,
which bar discrimination based on gender identity.

5 99

While health care providers should affirmatively accommodate non-
binary patients and insurers should cover medically necessary care, the
law seems to require, at most, neutrality. The 2o16 ACA regulations
provide that covered entities may not deny health care coverage “for
specific health services related to gender transition if such denial…

(2017) (“Children have a range of identities along a spectrum that might not fall neatly into male or
female categories. More data are needed to better understand the benefits of social transition in
these gender-non-binary children.”).

590 See, e.g., Activist- Clinicians Tout “Cultural Humility” & Surgery-on-Demand for “Nonbi-
naries” & “Genderfluids,” 4THWAVENOw (Dec. 27, 2015), https:H4thwavenow.com/2015/12/27/
activist-clinicians-tout-cultural-humility-surgery-on-demand-for-nonbinaries-genderfluids/ [https://
perma.cc/EKF3 -E2VC] (characterizing nonbinary people seeking transition-related services as mo-
tivated by “[c]omfort, exploration, wants” rather than medical necessity). 4thWaveNow is a website
that describes itself as “[a] community of parents & others concerned about the medicalization of
gender-atypical youth and rapid-onset gender dysphoria.” Id.

591 See AM. MED. ASS’N HOUSE OF DELEGATES, RESOLUTION: 122, SUBJECT REMOVING

FINANCIAL BARRIERS TO CARE FOR TRANSGENDER PATIENTS (2008) (recognizing “[a]n es-
tablished body of medical research” that “demonstrates the effectiveness and medical necessity of
mental health care, hormone therapy and [gender-affirming] surgery as forms of therapeutic treat-
ment for many people diagnosed with [gender dysphoria]”); WPATH STANDARDS, supra note 209,
at 8; see also Boyden v. Conlin, No. i 7-cv-264, 2018 WL 4473347, at 1 1-15 (W.D. Wis. Sept. 18,
2018) (rejecting an “unsupported analogy,” id. at *12, between gender-conforming surgeries and
uncovered cosmetic surgeries on the ground that it does not rest on judgments about what is ap-
propriate treatment according to medical standards and research).

592 See, e.g., Spade, supra note 212, at 19-23.
593 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codi-

fied as amended in scattered sections of 26 and 42 U.S.C.).
594 42 U.S.C. § 18116 (2012).
595 See, e.g., supra note 175.
596 See supra note 176.
597 Boyden v. Conlin, No. 17-CV-264, 2018 WL 4473347, at *11-15 (W.D. Wis. Sept. 18, 2018).
598 Id. at *i6-i8.
599 See, e.g., CAL. CODE REGS. tit. 10, § 2561.2(a)(4)(A) (2018).

[Vol. 132:894

THEY, THEM, AND THEIRS

results in discrimination against a transgender individual.’ 60 0 Whether
a denial constitutes “discrimination” is a difficult question. It may be
discrimination if a provider acknowledges it declined coverage because
the services in question were transition related.60 1 Or it may be discrim-
ination if similar services are covered for people who are not seeking
transition-related care.60 2 This latter rule is unlikely to apply in a sce-
nario in which “a medical procedure would be denied as cosmetic or
medically unnecessary in all other cases, but is in fact medically neces-
sary to treat gender dysphoria.’ 60 3 Thus, if for example, a health plan
never covered hair removal, it would not have to cover hair removal as
treatment for gender dysphoria. But in any event, the rules are likely
to apply (or not), to transgender women, transgender men, and nonbi-
nary people alike.

The 2016 regulation has been challenged in court and seems likely
to be reversed by the Trump Administration.60 4 The questions in litiga-
tion are whether there must be religious exemptions to the regulations,
and whether the definition of “sex” should include “gender identity”
at all, or is limited “to the biological differences between males and

600 45 C.F.R. § 92.207(b)(5) (2017).

601 Nondiscrimination in Health Programs and Activities, 8i Fed. Reg. 31,376, 31,433 (May ‘8,

2oi6) (“OCR will evaluate whether coverage for the same or a similar service or treatment is avail-
able to individuals outside of that protected class or those with different health conditions and will
evaluate the reasons for any differences in coverage. Covered entities will be expected to provide
a neutral, nondiscriminatory reason for the denial or limitation that is not a pretext for discrimina-
tion.”). Sex stereotypes, such as the idea that transgender people should “maintain the physical
characteristics of their natal sex,” will not suffice. Boyden, 2018 WL 4473347, at *12.

602 Boyden, 2018 WL 4473347, at *12 (concluding that a health insurance plan discriminated on
the basis of “natal sex” by covering care like reconstructive breast surgery for women who were
assigned the female sex at birth, but not chest surgery for transgender women who had been as-
signed the male sex at birth); Nondiscrimination in Health Programs and Activities, 8i Fed. Reg.
at 31,433.

603 Samuel Rosh, Beyond Categorical Exclusions: Access to Transgender Healthcare in State
Medicaid Programs, 51 COLUM. J.L. & Soc. PROBS. 1, 20 (2017).

604 In 2oi6, a number of states and health care providers brought suit, arguing that the rule’s
provision with respect to “gender identity” violates the Administrative Procedure Act because it is
incorrect as a matter of law, and that it violates the Religious Freedom Restoration Act because it
fails to include religious exemptions. Franciscan All., Inc. v. Price, No. i6-CV-ooio8, 2017 WL
3616652, at *i (N.D. Tex. July io, 2017). A federal district court in Texas granted a preliminary
injunction, preventing the HHS from enforcing the regulation. Id. at *2. The litigation is now
stayed while the Trump Administration reassesses the regulation. Id. at *5. But the injunction
purports to apply only to government actions to enforce the regulation, not private parties seeking
to enforce the statute’s nondiscrimination provisions. See, e.g., Prescott v. Rady Children’s Hosp.-
San Diego, 265 F. Supp. 3 d iogo, 1105 (S.D. Cal. 2017) (holding that a private action alleging
gender-identity discrimination under the ACA could proceed based on the language of the statute
and did not need to rely on the 2oi6 HHS regulations).

2019]

HARVARD LAW REVIEW

females.’ 60 5 The resolution of this dispute does not turn on whether
nonbinary people are covered.

60 6

This examination of the few remaining contexts of sex or gender reg-
ulation demonstrates that the law has no reason to require a universal
definition of sex or gender that limits the options to two. The purpose
of this Part has not been to definitively settle particular legal debates,
but rather, to argue that U.S. civil rights law offers various tools to re-
solve controversies over inclusion of nonbinary gender identities. As
U.S. states increasingly enact legislation to recognize nonbinary gender,
researchers will have more opportunities to collect empirical evidence
on the upsides and downsides of different interventions.

60 7

CONCLUSION

This Article has asked what it would mean for the law to take non-
binary gender seriously, in other words, to treat people with nonbinary
gender identities as full participants in social, economic, and political
life. It has argued for a contextual approach to nonbinary gender rights,
rather than insisting on uniform definitions or universal rules. This ap-
proach would examine each context of sex or gender regulation, consid-
ering the relative merits of various strategies for achieving nonbinary
gender rights, including third-gender recognition, the elimination of sex
classifications, or integration into binary sex or gender categories. While
opponents have argued that nonbinary gender rights would have un-
foreseen and dangerous effects on a host of legal regimes, careful analy-
sis reveals that there are few contexts left in which the law relies on
binary sex classifications after Obergefell. In those few remaining con-
texts of binary sex regulation, there are many possible paths forward for
nonbinary gender rights.

Theoretical debates – such as how the law should define sex or gen-
der as a general matter, or whether the optimal end state is third-gender
recognition or gender neutrality – can make it appear as though there
are irreconcilable conflicts among nonbinary gender rights claims and
feminist and LGBT priorities, particularly those of transgender men and
women. But analysis of each legal context suggests fewer such conflicts
in practice. Existing sex discrimination law protects transgender men
and women because bias against them is based on sex stereotypes, not

605 Franciscan All., Inc. v. Burwell, 227 F. Supp. 3 d 66o, 688 (N.D. Tex. 2016).
606 Opponents of the regulation pointed to the fact that it covered nonbinary gender identities in

their legal briefs – as if that were a damaging fact for the government. See supra notes 177-178
and accompanying text. But it did not seem to matter in terms of the legal argument, and the court
made no mention of it. See Franciscan All., Inc., 227 F. Supp. 3 d 66o.

607 International experience may also prove instructive. See supra note 8.

[Vol. 132:894

2019] THEY, THEM, AND THEIRS 99′

because they are a protected class or because their identities are immu-
table in some way. The same anti-stereotyping argument precludes dis-
crimination against people with nonbinary gender identities. Rather
than requiring dramatic legal changes or novel theories, protection of
nonbinary rights may only require moderate extensions of existing law
and the application of familiar civil rights concepts from doctrine on
sex, race, and religion.

Feminists have long argued for release from the straightjacket of
gender, but never before have nonbinary gender identities seemed so
likely to go mainstream. This movement may be challenged by en-
trenched attitudes about the naturalness of binary gender and the belief
that the legal options are limited to unpalatable forms of gender recog-
nition or absolute gender neutrality. But on a closer look, it is apparent
that neither human lives nor legal options are binary. Indisputably, non-
binary gender poses challenges to legal interests, but these challenges
are not insurmountable, and the possibility of inclusion, which not long
ago seemed unimaginable, is now beginning to seem inevitable.

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THE JURIST 68 (2008) 252-297

MARRIAGE: ITS RELATIONSHIP TO RELIGION,
LAW, AND THE STATE 1

CHARLES J. REID, JR.*t

Preface:

Father John Lynch-whom I have known fondly as “Fr. Lynch” for a
quarter-century now-was among the earliest influences on my own un-
derstanding of what an historian should be about when engaging the
records of the past. Certainly, Fr. Lynch taught some valuable lessons
about medieval canon law, as anyone who took his Gratian seminar or his
course on the sources of canon law, can attest. But he brought to the
classroom a pair of attributes that made the lessons he imparted singu-
larly compelling. By training a philosopher, he appreciated that, in com-
mon with other legal systems, canon law was not a self-contained system
of rules that should be studied in isolation from other intellectual cur-
rents. Second, he understood the pervasive influence canon law has had
on western law generally, secular as well as sacred.

A review of his scholarship, of course, reveals these attributes in abun-
dance. His studies on celibacy, the election of bishops, and the early his-
tory of the Eastern churches are well known and need no comment. 2 And
his history of canonical studies at Catholic University of America is sim-
ilarly indispensable. 3 I would like, however, to comment on two of his
lesser known, but still very significant articles. In “The Medieval Canon
Law on Sanctuary With Particular Reference to England,” Fr. Lynch con-
sidered a breath-taking panorama of sources in the course of studying the

* School of Law, University of St. Thomas, Saint Paul, MN

1 An earlier version of this paper was presented at a Becket Fund Conference in 2005.
It will appear in a publication under the auspices of that institution and is here used with
permission.

I This article is dedicated to Fr. John Lynch of the Catholic University of America in
honor of his many years as a teacher, writer, administrator, and pastor of souls and schol-
ars at the Catholic University of America.

2 See John E. Lynch, “Marriage and Celibacy of the Clergy in the Discipline of the
Western Church: An Historico-Canonical Synopsis,” The Jurist 32 (1972) 14-38,
189-212; idem, “Co-Responsibility in the First Five Centuries: Presbyteral Colleges and
the Election of Bishops,” The Jurist 31 (1971); and idem, “The Eastern Churches: Histor-
ical Background,” The Jurist 51 (1991) 1-17.

3 John E. Lynch, “Laying Down the (Canon) Law at Catholic University,” The Jurist
50 (1990) 2-57.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 253

role of the Church in furnishing sanctuary to those accused of crimes,
from the Christian Roman Empire through the Corpus luris Canonici, to
the Provinciale of the English canonist William Lyndwood, up to the de-
struction of this ancient right by the English King James I.4 And in “The
Canonical Contribution to English Law,” Fr. Lynch examines the me-
dieval antecedents of some familiar English legal institutions. 5 About
marriage, which is the subject of this study, Fr. Lynch notes in particular
the profound hold medieval theories of indissolubility exercised over the
English legal imagination until the latter half of the nineteenth century.

6

His larger point, of course, is to document this pervasive influence on the
English legal order.

This article draws inspiration from Fr. Lynch’s own work, especially
these latter studies of canonical influence on secular legal orders. While
the paper’s purpose is broad-to examine the relationship of religion, the
state, and marriage, it is largely historical in focus and concerned with
the ways in which medieval canon law both directly and through the me-
diation of early-modern Anglican canon law, influenced American jurists
and judges of the nineteenth and twentieth centuries. It has a philosoph-
ical dimension also, in its contention that this historical record reflects an
inevitable human reality-that law and religion, marriage, and the state
not only have historically influenced each other but that they must do so,
as a condition of a healthy society.

. Religion, Marriage, and the State: the Medieval Synthesis:

A necessary first step must be definitional. Religion has been defined
variously by philosophers, anthropologists, historians and others. It has
received different definitions depending on the faith commitments of the
scholar who proposes a definition. A particularly compelling definition
has been offered by Judge John Noonan, who has proposed that religion
is fundamentally about the relationship between persons and “a heart not
known, responding to our own.” 7 This unknown presence, who shapes

4 John E. Lynch, “Medieval Canon Law on Sanctuary With Particular Reference to
England,” in Unico Ecclesiae Servitio: L’itudes de droit canonique offertes Germain
Lesage, ed. Michel Th6riault and Jean Thorn (Ottawa: University of St. Paul, 1991)
71-89.

5 John E. Lynch, “The Canonical Contribution to English Law,” Studia Canonica 33
(1999) 505-525.

6 Ibid., 511-513.
7 John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Reli-

gious Freedom (Berkeley: University of California Press, 1998) 2.

THE JURIST

us, stands with us, whom we trust with our deepest intimacies, is God.
“[L]iving communication” characterizes this relationship which must be
approached with “empathy” and “imagination.” 8 Religion, furthermore,
is bound inextricably with the nature of the human person. Indeed, Noo-
nan makes the point that religion is as ineradicable an aspect of the
human experience as is the sexual impulse. 9 Religion is about nothing
less than the meaning of ultimate existence-“the problem of being and
nonbeing, life and death.” 10

What is of interest to the legal scholar are the ways in which the col-
lective insights into ultimate meaning formed by a particular society
come to be translated into norms and rules for social existence. This
paper is concerned with one particular aspect of this much larger ques-
tion-the nexus found at the confluence of three streams of human real-
ity: religious belief, especially understood as collective social enterprise;
the marital union; and the ways in which the state has used its authority
and power to mediate and define the terms of the other two.

This paper will have its center of gravity in American legal history of
the last two hundred years. But American legal history is not fully ex-
plicable without an appreciation of what went before. Frederic William
Maitland said regarding English legal history: “Such is the unity of all
history that anyone who endeavors to tell a piece of it must feel that his
first sentence tears a seamless web.””1I This insight applies as much to
American law as to the English law whose origins Maitland sought to ex-
plain and to explore. Indeed, to tell the story of the interaction of religion,
law, and the state in American history requires us to go back in time at
least to the twelfth century. This starting point helps to reveal the power-
ful relationship that has prevailed in Western history between religious
faith and the legal structure of marriage. The twelfth century witnessed a
renaissance in learning.12 The first universities were founded and set as
their goal not merely the conservation of the collected wisdom of the past
but the actual creation of knowledge through a dialectical method that

Ibid.
9 Ibid.
‘0 Edwin McDowell, “Professor Mircea Eliade, 79, Writer and Religious Scholar,”

New York Times (April 23, 1986) B 6 (quoting Mircea Eliade).
1 Frederic W. Maitland and Frederick Pollock, A History of English Law Before the

Time of Edward I (quoted in Harold J. Berman, Law and Revolution: The Formation of the
Western Legal Tradition [Cambridge, UK: Harvard University Press, 1983] 49.

12 See generally Charles Homer Haskins, The Renaissance of the Twelfth Century
(Cambridge, MA: Harvard University Press, 1927).

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 255

questioned received authority. 13 This development was made possible by
a general settling down of society and the emergence of complex institu-
tional structures after a half-millennium of transitory and failed experi-
ments at political organization following the collapse of Roman power in
the West. Indeed, it has been persuasively contended that the western
legal tradition itself came into being in the twelfth century as canon
lawyers, many of them teaching and writing at the new universities, re-
duced to systematic juridic forms the mass of ecclesiastical learning of
the previous one thousand years.

14

Historically, going as far back in time as the twelfth century, marriage
was defined in terms of legal categories that were shaped fundamentally
by Christian theological insight. It was in the twelfth and thirteenth cen-
turies that canon lawyers at the major European universities began to put
into systematic legal form the theological heritage of the previous thou-
sand years with a focus in particular on the thought of St. Augustine and
other patristic writers of the era.

St. Augustine, who wrote at the end of the fourth century and the be-
ginning of the fifth, conceived of marriage as serving three basic goods:
procreation; permanence; and life-long faithfulness or unity.15 The me-
dieval lawyers reduced these theological insights to legal categories and
brought to their enforcement the coercive jurisdiction of the Church
which had at its disposal a variety of spiritual sanctions.’ 6 Where parties
to a marriage affirmatively excluded one or more of these Augustinian
goods from their exchange of consent, the union itself failed. The state,
for its part, by and large ceded control of the marital relationship to the
Church and contented itself with regulating some of the incidents that ac-
companied a valid marriage. In the context of medieval England this in-
volved such “incidents” as the exaction of feudal dues at the time of the

13 Hastings Rashdall notes that Bologna and Paris, both established “during the last

thirty years of the twelfth century,” should be accounted the first universities. Bologna
grew famous for its instruction in Roman and canon law; Paris for its theological and
philosophical investigations. The Universities of Europe in the Middle Ages, ed. F.M.
Powicke and A.B. Emden (Oxford: At the Clarendon Press, 1936) 1:17.

4 See generally, Berman, Law and Revolution.
15 Two of St. Augustine’s most important works on this subject now appear in a single

volume-the new edition with facing translation prepared by P.G. Walsh. See De Bono
Coniugali, De Sancta Virginitate (Oxford: Oxford University Press, 2001).

16 1 have summarized some of these developments in “The Augustinian Goods of Mar-
riage: The Disappearing Cornerstone of the American Law of Marriage,” BYU Journal of
Public Law 18 (2004) 449, 451-456.

THE JURIST

marriage and the adoption of rules governing the inheritance of real, but
not personal, property. 17

The medieval canonists were vigorous in fleshing out a theory of mar-
riage that assigned theological significance to nearly every attribute of
the marital relationship. They stressed, for instance, that only the consent
of the parties themselves sufficed to make a marriage and gave as a rea-
son the theological insight that marriage was an enduring union of souls
that required a freely-chosen decision to enter precisely in order to con-
vey its symbolic qualities to the world.18 The canonists further distin-
guished between consent and consummation, and determined that while
consent made a marriage, consummation conferred on it a special firm-
ness that no human power might break. 19 Again, a theological explana-
tion was offered as the basis of this rule. Consummation transformed a
human relationship into a living, earthly representation of Jesus Christ’s
unfailing marriage to His Church.20

The medieval canonists developed yet more refinements for their theo-
logically-inspired analysis of marriage. They distinguished between
grounds of nullity and grounds of divorce. This much was required by
their theology of an unbreakable marital bond. Entry into a life-long
commitment obviously required the observance beforehand of a high de-
gree of freedom from coercion and an awareness of the nature of the con-
tract and its obligations. Hence persons marrying one another had to be
free of external coercion, 21 and they could not be the victims of funda-
mental error as to the person whom they were marrying. 22 Furthermore,

17 For the role played by the Crown and its law in medieval and early-modem England,

see T.F.T. Plucknett, A Concise History of the Common Law, 5th ed. (Boston: Little,
Brown, and Company, 1956) 535-537 (feudal incidents of marriage); and 528-530 (the
emergence of primogeniture as the means of regulating the inter-generational transfer of
land in England).

“8 Charles J. Reid, Jr., Power Over the Body, Equality in the Family: Rights and Do-
mestic Relations in Medieval Canon Law (Grand Rapids, MI: William B. Eerdmans,
2004) 43-44.

19 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago:
University of Chicago Press, 1987) 236. Consummation conferred on the marriage a spe-
cial sacramental firmness that made the union indissoluble by any earthly power.

20 The development of this idea is one of the themes of the book by Seamus Heaney,
The Development of the Sacramentality of Marriage from Anselm of Laon to Thomas
Aquinas (Washington, DC: The Catholic University of America Press, 1963).

21 On the freedom to marry, see Reid, Power Over the Body, 37-50.
22 John Noonan observes that error as to the person as well as the person’s status (free

or servile) invalidated consent. See John T. Noonan, Jr., Power To Dissolve: Lawyers and

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 257

they might be prevented from marriage with one another by any number
of impediments that existed in the law.

23

The recognition that a given marriage might be invalid, that it might be
so radically flawed that it could be considered never to have come into
existence, led the canonists to develop a judicial system empowered to
investigate such claims. Success before the ecclesiastical courts led to
the granting of an annulment; and those who obtained annulments of
their putative marriages were thereby freed to move to new partners.
After all, they had not been married at all in the eyes of the Church.

On the other hand, parties whose marriages, although valid, failed for
some fundamental reason such as adultery or a lapse into heresy, enjoyed
the right to seek an ecclesiastical divorce, although such a decree carried
no right of remarriage. In addition to adultery and heresy, one might also
seek a decree of separation by reason of excessive violence and brutality
(called saevitia by the canonists). 24 Again, what one sees at work here are
the consequences of the doctrine of indissolubility-the marital bond
was held to be enduring, even where the parties found it impossible to
live together and were granted by competent authority the right to live
apart. Since the bond endured for so long as both parties remained alive,
remarriage was theoretically impossible during the lifetime of the other
party.

Nor were these the only rules the medieval canonists developed. The
canonists were truly prolific in defining and developing any number of
the other elements of domestic relations law as it evolved from the mid-
dle ages to the twentieth century. The English Reformation modified
some aspects of the edifice constructed by the medieval canonists. The
belief that marriage was a sacrament was done away with.25 The Angli-
cans also followed the lead of their Continental Protestant brethren in

Marriages in the Courts of the Roman Curia (Cambridge, MA: Harvard University Press,
1972) 36.

23 For a list of the basic impediments, see Richard H. Helmholz, Marriage Litigation
in Medieval England (Cambridge, UK: Cambridge University Press, 1974) 36.

24 The grounds for divorce are discussed in Reid, Power Over the Body, 135-149. The

ground of violence developed as a kind of equitable estoppel, as American lawyers would
term it: the defendant wife would raise as a defense the husband’s violence as a justifica-
tion for her decision to separate and the Court would refuse to grant the husband’s petition
for reconciliation.

25 John Witte, From Sacrament to Contract: Marriage, Religion, and Law in the Western

Tradition (Louisville, KY: Westminster/John Knox Press, 1997) 140-153.

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reposing ultimate authority in the male head of household while simulta-
neously diminishing the rights of women.

26

But in other respects, the Anglican canonists did not greatly disturb the
basic legal structure established by their medieval predecessors. English
jurists continued to stress-as had the medieval canonists-that mar-
riage was a contract that derived its efficacy from divine law. Thus John
Ayliffe, writing in the early eighteenth century, wrote that marriage “was
first instituted by God himself in Paradise. ‘ 27 It was ordained by God
“for the Propagation of Mankind. ‘ 28 Indeed, the “Law of Nature” and
“right Reason itself’ taught that the “Necessity of human Propagation”
was the obvious and transcendent purpose for which marriage was
brought into being.

29

Ayliffe’s contemporaries echoed these sentiments. Lord Stair in the
late seventeenth century described marriage in similarly transcendent
terms. Marriage, he wrote, “Was iure divino”-the product of divine
law.3″ The marriage contract, Lord Stair added, “is not a human, but a di-
vine, contract.”‘ 31 The basic rules of marriage were also the product of di-
vine law. Lord Stair gave the specific example of the incest prohibitions.
“[T]here is,” he stressed, “a natural abhorrence of that promiscuous com-
mixtion of blood.

32

26 This diminution of the wife’s rights is well-expressed in the common-law doctrine

of coverture, by which the wife’s legal personality was merged with that of her husband to
create a single legal entity with the husband empowered to act in its name. William Black-
stone described the consequences of this doctrine: “By marriage, the husband and wife are
one person in law; that is, the very being or legal existence of the woman is suspended dur-
ing the marriage, or at least is incorporated and consolidated into that of the husband:
under whose wing, protection, and cover, she performs every thing; and is therefore called
in our law-french afemme-covert.” Commentaries on the Laws of England (Chicago: Uni-
versity of Chicago Press, 1979) (reprint of the 1766 edition) 2: 430. The ways in which the
Bible was used by American courts to justify this doctrine are discussed below.

27 John Ayliffe, Parergon Juris CanoniciAnglicani (London: Thomas Osborne, 1734)
359.

28 Ibid., 359-360.
29 Ibid., 360.

30 James Dalrymple, Viscount of Stair, The Institutions of the Law of Scotland, ed.

David M. Walker (Edinburgh: University Press of Edinburgh and Glasgow, 1981) 105.
31 Ibid.
32 Ibid., 106.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 259

English Protestant lawyers thus shared with their medieval forebears a
belief in the divine origin of marriage, even while they eschewed its
sacramental character. And even though they no longer considered mar-
riage a sacrament, they continued to retain the older canonistic rules gov-
erning marital indissolubility. A party seeking to take leave of his or her
marriage might, like his or her medieval ancestors, choose either to have
the marriage declared invalid (styled by the English lawyers “divorce a
vinculo”); or seek “a separation from bed and board” (divorce a mensa et
thoro). A decree of nullity carried with it the right of remarriage, but sep-
aration from bed and board did not.3 3 To obtain the right to marry fol-
lowing such an “ecclesiastical divorce,” furthermore, one had to take the
step of petitioning Parliament for permission, which, in practice was
rarely sought and even more rarely granted.

3 4

Until 1857, the English ecclesiastical courts retained jurisdiction over
marriage and its incidents.35 In the centuries between the Reformation
and the abolition of ecclesiastical jurisdiction, these courts had created
an ornate structure of marriage law which would prove to have signifi-
cant impact on the law of the nineteenth-century United States.

While the great bulk of this paper is concerned with exploring the re-
lationship of religious belief and marriage in American law, it is neces-
sary to understand the medieval and early-modern English background
because it provides the deep structure to the American law of marriage.
American lawyers continued to operate, well into the twentieth century,
in a juristic universe that used the language of divine and natural law to
describe the marital relationship and its peculiar attributes. Many pecu-
liarities of the law of domestic relations as found in the nineteenth- and
early-twentieth-century America can only be explained by a knowledge
of the canon law that had come before. In short, the frame of reference
that lawyers relied upon to define and defend the obligations of parties to
a marriage was essentially medieval. Sacramentality may have disap-

33 Lawrence Stone, Road to Divorce: England, 1530-1987 (Oxford: Oxford Universi-
ty Press, 1990) 301-306.

31 See generally Harvey Crouch, “The Evolution of Parliamentary Divorce,” Tulane
Law Review 52 (1978) 513-540.

15 For a good account of the Marital Causes Act of 1857, which removed jurisdiction
over domestic relations from the ecclesiastical courts and placed it instead in the hands of
royal judges, see Stephen Cretney, “Ending Marriage By Judicial Divorce Under the Mat-
rimonial Causes Act of 1857.” Chap. 5 in Family Law in the Twentieth Century: A Histo-
ry (Oxford: Oxford University Press, 2003) 161-195.

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peared, secular courts may have come to regulate the marital relation-
ship, but still the medieval thought-world persisted in some very inter-
esting ways.

But while the ideas and language frequently remained identical with
the vocabulary and thought-world of much older times, the North Amer-
ican legal context was, of course, entirely different from early modem
England or late medieval Europe. Perhaps the most important difference
is the fact that early American courts operated in a universe in which ec-
clesiastical jurisdiction had been abolished. While English lawyers had
to wait until the late 1850s to see ecclesiastical jurisdiction over marriage
abolished, the jurisdiction of church courts had almost entirely vanished
from America before the founding of the new Republic.

This, then, is the anomaly that informs the relationship of domestic re-
lations law and the state in the context of American legal development-
the anomaly of secular courts applying categories of thought that were
given shape and substance by centuries of labor on the part of ecclesias-
tical canonists and courts. While I shall focus on the tripartite relation-
ship described by my title-marriage, religion, and the state-it is a re-
lationship defined not only by the use of religious categories to define
marriage, but by the fact that it was secular, not religious, courts that had
to make use of these essentially religious categories. How this anomaly
played out in American history is the subject of the second part of this
paper. The normative question-does this historical record compel some
sort of response?-is deferred until the paper’s final section.

II. Marriage and Religion in American Legal History:

A. Preliminary Considerations:

The title of this section lends itself to an expansive investigation. That
temptation, however, must be resisted, enticing as it is. American do-
mestic relations law has deep roots in the sort of medieval and early-
modem Christianity discussed in section I. To draw upon this material as
deeply as one might wish would require a book-length treatment.

I shall, alas, content myself with a brief and impressionistic survey of
the subject, looking at a few representative samplings of the ways in
which American courts invoked, adapted, and utilized a religious frame
of reference in resolving matrimonial disputes. I am concerned in partic-
ular with the use of a legal vocabulary-distinctive turns of phrase or
ideas-that is traceable to medieval Christian or to Anglican canonistic
antecedents. Such an undertaking has value in its own right and consti-
tutes an interesting form of intellectual history-an exercise that speaks

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 261

not only to what early American courts thought about marriage, but also
what they regarded as legitimate sources of law. Aside from its value as
history, furthermore, the investigation has value in widening the horizon
of contemporary public policy debates that seem excessively dependent
upon a variety of utilitarian calculations to the exclusion of larger ques-
tions about ultimate human goods.

As a preliminary matter, one must discuss briefly the early American
understanding of the sources of law. A modem American law student is
trained to read cases to search for their holdings; to read statutes in search
of their scope and application; and to consider carefully the language of
particular constitutional provisions. These are now the formal sources of
law to the exclusion of almost everything else. This intensely positivistic
reading of the law, however, was simply not known to lawyers in the
early American Republic. One might take William Blackstone’s account
of the sources of law as representative of the ways in which early Amer-
ican lawyers viewed the most fundamental question a lawyer confronting
the sources must ask, i.e., what is law? (Blackstone’s Commentaries, al-
though English, was considered the obligatory starting point for legal
study in the United States even decades after the Revolutionary War).

3 6

In his hierarchy of sources, Blackstone began with “the law of nature,”
which is nothing less than “[the] will of [man’s] maker,” God.37 This nat-
ural law included “the eternal, immutable laws of good and evil., 38 The
eternal natural law, Blackstone stressed, was superior to human law; in-
deed, “no human laws are of any validity, if contrary to this.”39 Natural
law, furthermore, consisted of two sub-categories: That taught directly by
God, through Scripture; and that deduced by the human person through
the use of reason.40 Blackstone followed this distinction by insisting once
again: “[N]o human law should be suffered to contradict these.”

41

36 An important study of the influence of Blackstone on early American legal educa-

tion is Steve Sheppard, “Casebooks, Commentaries, and Curmudgeons: An Introductory
History of Law in the Lecture Hall,” Iowa Law Review 82 (1997) especially 547-564.
37 Blackstone, Commentaries, 2:39.
31 Ibid., 40.
” Ibid., 41.
40 Ibid., 42.
” Ibid. Closely related to these two types of natural law is a third branch of the law, the

“law of nations” (ius gentium) which Blackstone understood as essentially derivative of
these other laws. Blackstone explained the relationship: “Hence arises a third kind of law
to regulate this mutual intercourse [among states], called ‘the law of nations;’ which …
depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues,
and agreements ….. Ibid., 43.

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After establishing the primacy of divine and natural law, Blackstone
then turned his attention to the “municipal law,” by which he meant the
law binding within particular kingdoms and realms (” ‘a rule of civil con-
duct prescribed by the supreme power in a state’ -).42 The British Con-
stitution, which consisted of the monarchy, the lords spiritual and tem-
poral, and the House of Commons, Blackstone claimed, was uniquely
well-suited to exercise this authority.43 Charged with law-making and
law-interpreting powers, these constitutional offices oversee, conserve,
and advance the municipal law of the realm-not the common law only,
but also the “ecclesiastical,” the “military,” the “maritime,” and the “aca-
demical law.” 4 Common law, which is both written and unwritten, con-
sists finally in customs, judicial interpretation, and statutory enactment.

Blackstone’s writings reflected an essentially theistic understanding
of the law with deep roots in medieval thought. The proposition that
human law mirrors and must be in conformity with the divine and natural
law can be found in many medieval sources. 4 The relative degree of def-
erence he showed to the authority of king and Parliament reflected, no
doubt, the sort of recognition an eighteenth-century Anglican had to pay
to the status of king as supreme in church as well as state. But even with
that qualification, it is clear that Blackstone understood the divine and
natural law, whose main principles are knowable by human reason, to
serve as an ultimate check on the potential arbitrariness of merely human
rule.

Blackstone’s Commentaries would prove immensely popular in the
new United States and exercised a commanding authority over early
American jurists. The study of Blackstone’s Commentaries as an indis-
pensable introduction to the study of law ensured that practitioners
would acquire an awareness of the wholeness of the law and a sense of its
jurisprudential foundations in a way that instruction from casebooks has

42 Ibid., 46.
43 Ibid., 50.
44 Ibid., 84. Blackstone treats the “civil and canon laws” as a branch of these laws sub-

ordinate to the common law, which is the most exalted law of the English nation. Ibid.
45 One might consult the opening passages of Gratian’s Decretum. Gratian begins with

the observation that humankind is governed by “law” and “customs.” And by “law,” Gra-
tian means the ius naturae which is found in the gospels and in Jesus Christ’s golden rule,
“Do unto others as you would have them do unto you.” D. 1, pr. Gratian followed this with
an excerpt from Isidore of Seville that commenced: “Omnes leges aut divinae sunt, aut hu-
manae” (All laws are either divine or human). D. 1. 1. Blackstone’s own definition of law
clearly fits within this larger tradition that had its origin in the twelfth century.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 263

failed to do, given the latter’s tendency to move from doctrine to doc-
trine, while all the while focused on narrow questions of law.

4 6

And these jurisprudential foundations were self-consciously Chris-
tian. In particular, early American lawyers and judges picked up and de-
veloped Blackstone’s teaching that “Christianity is a part of the laws of
England.”47 This assertion became so ubiquitous in the nineteenth cen-
tury that one modem historian has been led to write:

Nineteenth-century American judges and lawyers often claimed
that Christianity was part of the common law. From Kent and
Story in the early part of the century, to Cooley and Tiedeman to-
ward the end, the maxim that ‘Christianity is part and parcel of
the common law’ (or some variant thereof) was heard so often
that later commentators could refer to it as a matter ‘decided over
and over again,’ one which ‘text writers have affirmed.’ “48

B. The Survival of a Religious Vocabulary in the American Law of
Marriage:

1. Marriage, the Divine Law, and the Law of God:

It is jarring and unexpected to find references to the divine law when
reading the opinions of American courts that have undertaken to explain
the foundations of the law of marriage. One might expect to see this sort
of reasoning in a medieval discussion of marriage’s sacramentality.4 9

One might also expect to see such language in an early Anglican treatise
on canon law, such as that of John Ayliffe, who insisted that the institu-
tion of marriage was a matter of “Divine Will and Command.”5 And, of
course, one still encounters this sort of language in the official teaching
of the Catholic Church, as, for example, the Second Vatican Council’s af-
firmation that marriage “is an institution confirmed by divine law.”’51 But

46 See Harold J. Berman and Charles J. Reid, Jr., “The Transformation of English

Legal Science,” Emory Law Journal 45 (1996) 437-522, especially 509-522.
47 Stuart Banner, “When Christianity Was Part of the Common Law,” Law and Histo-

ryReview 16 (1998) 27, 30.
48 Ibid., 27.
49 See, e.g., the discussion of the divine plan for marriage as it applies to believers and

non-believers in a canonist like Rufinus, Summa Decretorum, ed. Heinrich Singer (Aalen:
Scientia Verlag, 1963) 442-443.

50 Ayliffe, Parergon, 360.
5 Gaudium et spes 48. I am here following the translation of Austin Flannery, OP.,

Vatican Council I1: The Conciliar and Post-Conciliar Documents (Collegeville, MN: The
Liturgical Press, 1975) 950.

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to find such assertions in American judicial opinions seems entirely out
of place.

One is nevertheless confronted with a group of cases that declare ex-
actly that. In 1876, in language that was, at least in part, eerily reminis-
cent of the privacy decisions of the mid-1960s United States Supreme
Court, the Supreme Court of New Hampshire wrote of marriage that “it
is the most intimate and confidential of all human relations, and has al-
ways been sanctioned and protected by both human and divine law.”

52

The Supreme Court of Washington declared in 1892 that “the married
state is a most commendable one, and ought to be encouraged in all le-
gitimate ways, having, as it does, its origin in divine law.”53 The Supreme
Court of Indiana rejected the proposition that a married woman over the
age of twenty-one required a guardian as something that “would be a vi-
olation of all our ideas of secular and divine law.”54 The Missouri
Supreme Court spoke of marriage as a “sacred relation,” held as much
“in the common as in the Divine Law.”

55

This phraseology retained significance into the early and middle
decades of the twentieth century. In 1958, the New York Supreme Court,
Appellate Division, quoted with approval an earlier decision of the New
Jersey Supreme Court:

The human race was created male and female with the manifest
purpose of perpetuating the race. Marriage without sexual inter-
course utterly defeats its purpose, as sexual intercourse except in
the marital relation is contrary to divine law …. 56

Perhaps the most interesting of these early- and middle-twentieth-
century cases comes from Pennsylvania. At issue in In re Enderle Mar-
riage License, decided in 1954, was a statute that prohibited marriage be-
tween cousins.57 Frank, the petitioner, was adopted into the Enderle fam-
ily and sought to marry his cousin by adoption, Adelheld. 58 The parties

52 Drew’s Appeal, 57 N.H. 181, 182-183 (1876). The privacy cases, of course, re-

tained the language about human intimacy but stripped away references to divine law.
53 In re Estate ofMcLaughlin, 4 Wash. 570,590,30 P. 651,658 (1892).
54 Exparte Post, 47 Ind. 142, 143 (1874).
55 Nichols v. Nichols, 147 Mo. 387,410,48 S.W. 947 (1908).

56
Diemer v. Diemer, 6 A.D.2d 822, 823, 176 N.Y.S.2d 231, 232-233 (quoting Raymond

v. Raymond, 79A. 430, 431 (N.J. Ch. 1909)).
57 In re Enderle Marriage License, I Pa. D. & C. 2d 114 (1954).
5
1 Ibid.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 265

were not blood relations. The Court determined that the statute in ques-
tion was intended to prevent incest between blood relations only, and not
those related by adoption, and so permitted the issuance of the marriage
license. What is interesting, however, was the reasoning the Court em-
ployed in reaching this conclusion. It offered two secular justifications
for its reading of the statute, but gave primacy of place to an argument
drawn explicitly from its understanding of the divine law:

The purpose of the legislature in prohibiting marriages within
certain degrees of consanguinity and affinity is at least threefold:
(1) To maintain the Divine Law forbidding the marriage of close
relatives; (2) for eugenic reasons, to preserve and strengthen the
general racial and physical qualities of its citizens by preventing
inbreeding; and (3) to maintain the sanctity of the home and pre-
vent the disastrous consequences of competition for sexual com-
panionship between members of the same family.

59

Fifty years removed from Enderle, we no doubt would find different
language when analyzing this problem. The invocation of racial im-
provement and eugenics, thankfully, is no longer a part of our public dis-
course, although a general desire to prevent inbreeding is certainly still a
legitimate public policy. And a concern to limit sexual competition
within a family unit would loom very large in our public justifications for
the law. Divine law, however, would no longer be mentioned, let alone
have the “D” and the “L” put in capital letters. What is remarkable, how-
ever, is how hardy such language has proven to be. The reasoning of the
Enderle Court would have been recognizable by thirteenth-century
canonists and by seventeenth- and eighteenth-century Anglican divines
alike. Enderle’s language moved, in other words, in a very ancient
thought-world.

Analytically nearly identical to divine law is the linguistic formula,
“the law of God.” In addition to divine law, one encounters frequent in-

51 Ibid., 120. Enderle’s invocation of divine law was repeated with apparent approval by
at least two subsequent Pennsylvania courts. In Adameze v. Adameze, the Court, relying on
language in Enderle, determined, on its reading of the Book of Leviticus, that marriage be-
tween first cousins related by blood was not prohibited by divine law. 47 Pa. D. & C. 2d
445,449 (Pa.Com.P. 1969). And in Marriage of MEW and MLB., 4 Pa. D. & C. 3d 51,58
(Pa.Com.Pl. 1977) the Court cited without discussion or disapproval Enderle’s use of di-
vine law.

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vocations of “the law of God” in cases involving marriage and domestic
relations. Thus one finds the Arkansas Supreme Court writing:

[W]e ought to say that marriage is a divine institution. As a con-
sequence thereof, it isordained by the laws of God and man that
children shall be brought into the world. The family throughout
all Christendom is the primal unit of society.

Invocations of “the law of God,” like invocations of the divine law, are
not found only in cases arising from the Bible Belt. One sees, for exam-
ple, the Connecticut Supreme Court upholding a lawyer’s disbarment
upon his adultery conviction because he chose “‘to put his own ideas of
law above what you might fairly call the laws of God and man.”‘ 6 1 The
Supreme Judicial Court of Massachusetts denounced attempts at mar-
riage that were “against the laws of God” and specifically referenced the
incest provisions. 62 And a dissenting opinion from the Supreme Court of
California described a man who chose to cohabit with a woman other
than his wife as someone whose “relationship violates the laws of God
and man.”

63

Like invocations of divine law, one finds references to the “laws of
God,” or “God’s law,” occurring with at least some frequency into the
middle decades of the twentieth century. Thus a dissenting opinion in a
1947 case from the State of Washington denounced a couple living in
adultery as “insensible to the laws of God and man.” 64 The Texas Court
of Criminal Appeals, meanwhile, sustained a bigamy conviction as a vi-
olation of “the laws of God and man.” 65 Even a judge like Learned Hand

60 Pryorv. Pryor, 151 Ark. 150, 158 (1922).
61 Grievance Committee of the Hartford County Bar v. Broder, 112 Conn. 269, 276,

152 A. 2d 292, 295 (1930) (quoting the sentencing judge at the time of the disciplined
lawyer’s conviction).

62 Sutton v. Warren, 51 Mass. 451, 452 (1845).
63 Moore Shipbuilding Corporation v. Industrial Accident Commission, 185 Cal. 200,

210, 196 P. 2d 257, 261 (1921)(Wilbur, J., dissenting). The language of Justice Wilbur was
subsequently repeated and endorsed by the Indiana Court of Appeals. Russell v. Johnson,
112 Ind. App. 253,266,42 N.E.2d 392, 398 (1942). A subordinate California appellate tri-
bunal made a similar statement in a case with unusual facts. The wife alleged that her ex-
husband’s parents tortiously interfered with their marriage causing it to fail. The Court re-
sponded: “It is not unlikely in moments of resentment they said harsh and unkind things
about her; but that fact alone does not justify an inference that they violated the laws of
God and society by trying to break up the marriage relation of these young people.”
Bourne v. Bourne, 43 Cal. App. 516, 530-531, 185 P. 489, 495 (2d Dist. 1919).

64 Norman v. Norman, 27 Wash. 2d 25, 34, 176 P.2d 349,355 (1947)(Simpson, J., dis-
senting).

65 Harrison v. State, 44 Tex. Crim. 164, 168, 69 S.W. 500, 502 (1902).

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 267

invoked “God’s law” in ruling that an immigrant couple consisting of an
uncle and a niece were not guilty of any crime for having married one an-
other in a foreign ceremony and were thus not subject to deportation.

66

The question an historian must confront is how ought one to make
sense of these cases? The following conclusions seem warranted: Many
early American jurists seemed to think that marriage was something that
had its origins in a natural law that in turn reflected a divine plan; this nat-
ural law exercised real power over human affairs even in the absence of
the state or the state’s laws. It fell to law makers and judges to interpret
and apply this law, not to legislate out of whole cloth. More generally,
one can also conclude that Christianity continued to exercise not only a
cultural influence over the judiciary but a real intellectual and moral at-
traction. While I am restricting this paper to marriage and domestic rela-
tions law, its thesis-that the jurisprudential foundations laid down by
generations of medieval and early-modern lawyers continued to influ-
ence the shape of American judicial thought until only a couple of gen-
erations ago-seems capable of a broader application. I have explored
some aspects of this influence in other work.

67

This two-fold reading of the historical record, emphasizing both the
general historical influence of Christianity and its specific applicability
to the shape of American domestic relations law, is probably the most
helpful explanation for the marital teaching of the early American jurist,
Chancellor James Kent of New York, who declared that:

The primary and most important of the domestic relations is that
of husband and wife. It has its foundation in nature, and is the
only lawful relation by which Providence has permitted the con-
tinuance of the human race.

68

66 United States v. Francioso, 164 F. 2d 163 (2d Cir. 1947). After noting that marriages

between uncles and nieces were not forbidden under New York law until 1893, Hand as-
serted, “To be sure, its legality does not finally determine its morality, but it helps to do so,
for the fact that disapproval of such marriages was so long in taking the form of law, shows
that it is condemned in no sense as marriages forbidden by ‘God’s law.”‘ Ibid., 164.

67 See Charles J. Reid, Jr., “The Disposal of the Dead: And What It Tells Us About
American Society and Law,” in Figures in the Carpet: Finding the Human Person in the
American Past, ed. Wilfred M. McClay (Grand Rapids, MI: William B. Eerdmans, 2007)
428-445.

68 Chancellor James Kent, Commentaries on American Law (New York: E.B. Clayton
and James Van Norden, 1836) 2:74.

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2. The Book of Leviticus and the Early American Judiciary:

General invocations of divine law or the law of God, a critic might in-
sist, reveal nothing more than a decent respect for the common pieties of
the age. It reveals little real influence of Christian principle on actual
legal practices or doctrines. Proof of influence only comes with evidence
that a particular contemporary legal institution has assumed a certain
shape precisely because of some particular Christian teaching. The ac-
knowledgments of divine law so far discussed, this critic might continue,
really show only that some judges at least knew to appeal to popular
Christian opinion in a more religious age.

Such a criticism is invalid. In fact, one can point to particular instances
of influence on particular legal institutions. One might thus consider the
law of incest. As the Enderle case reveals, multiple justifications might
be cited as support for the incest prohibition. 69 In fact, however, nine-
teenth-century legal commentators tended to look to the Bible when ar-
guing against incest. In introducing the subject of incestuous marriage to
his readers in 1891, Joel Prentiss Bishop, one of the most prolific of the
nineteenth-century treatise writers, 70 declared “[t]he law of this subject
[to be] a compound of natural law and theological dogma. ‘ 71 Bishop
went on to trace the history of the rules regarding incest and marriage, as
they had developed in the Anglo-American context. A statute of King
Henry VIII-“which is common law in this country,” Bishop assured his
readers-“declared lawful the marriage of all persons ‘not prohibited by
God’s law to marry; and that no reservation or prohibition, God’s law ex-
cept, shall trouble or impeach any marriage without the Levitical de-
grees.”

72

The Henrician statute’s reference to the “Levitical degrees” proved es-
pecially fertile ground for nineteenth- and twentieth-century courts.
Chapter eighteen of the Book of Leviticus prohibited, among other li-
aisons, sexual intercourse between a parent and his or her children, be-
tween or among siblings, and, by implication, lineal descendants or an-
cestors in the parental line. 73 Leviticus also prohibited sexual relations

69 See In re Enderle Marriage License, supra.
70 On Bishop’s career and the great influence he enjoyed with his contemporaries, see

Stephen A. Siegel, “Joel Bishop’s Orthodoxy,” Law and History Review 13 (1995)
215-260.

71 Joel Prentiss Bishop, New Commentaries on Marriage, Divorce, and Separation
(Chicago: T.H. Flood and Company, 1891) 316.

72 Ibid., 318.
73 See Leviticus 18:6-18 for the entire list of prohibitions.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 269

between in-laws. 74 The term “consanguinity” was used generally in the
law to describe those barred from marriage to one another by blood rela-
tionship, while “affinity” was used to describe those in-laws forbidden to
marry one another. For much of American history, courts made regular
use of the levitical degrees and the categories they established as a source
of guidance in resolving a number of disputed questions concerning do-
mestic relations law.

The extent to which the Henrician statute with its biblical foundation
was considered an applicable source of law can be gauged by an early
Kentucky opinion that engaged in what might look to contemporary
readers as a fairly tortured reasoning process. The Kentucky Supreme
Court in Jenkins v. Jenkins’ Heirs rejected an expansive reading of the
statute that permitted all those not related in the levitical degree to
marry.75 More was required to marry validly, the Court insisted: since
marriage was a civil contract and, impliedly at least, was governed by the
rules of contractual capacity, parties were required to enjoy the use of
reason in order to consent.7 6 Thus the Court concluded not only close rel-
atives but also the insane were prohibited from marriage. 77 It is clear that
the Court felt compelled to engage in this labored exegesis of biblical
precedent and the natural-law grounds of contractual capacity because it
was painting on a largely blank canvas since it does not appear that there
was a statute on point. The Court wished to make it clear that neither in-
cest nor the marriages of the insane would be tolerated. And the rules es-
tablished in Leviticus were the best source it could come up on the incest
prohibition.

Other courts accepted the levitical degrees as a convincing foundation
for the incest prohibition. The Supreme Judicial Court of Massachusetts
in 1924 confronted the question whether parties related by the half-blood
were prohibited from marriage. 78 The Court reviewed the history of the
Commonwealth’s incest prohibition from the acceptance of the levitical
degrees as a source of law in sixteenth-century ecclesiastical law, and on
through a succession of ecclesiastical and secular sources. 79 The Massa-

74 Ibid.
75 Jenkins v. Jenkins’Heirs, 32 Ky. 102 (1834).
76 Ibid., 104-105.
77 Ibid.
78 Commonwealth v. Ashey, 248 Mass. 259, 142 N.E. 788 (1924).
71 Ibid., 260, 142 N.E. at 788.

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chusetts Court concluded that it should accept the interpretation placed
on the levitical degrees by the English ecclesiastical courts when they
prohibited marriages among those related by the half-blood. 80

The Louisiana Supreme Court, for its part, acknowledged that incest
lacked “a fixed and definite meaning,” but that the levitical degrees pro-
vided generally sound guidance. 8 ‘ In 1914, the Iowa Supreme Court jus-
tified its acceptance of the levitical degrees by noting that their use in re-
solving incest questions was endorsed by a leading legal encyclopedia.

82

And in 1929, the Supreme Court of Iowa reviewed the legal history of the
levitical degrees and their importance to domestic relations law in re-
sponding to an appeal of a criminal conviction for incest.

83

The levitical degrees figured prominently in a variety of contexts, such
as judicial efforts to define or clarify what is meant by “incest;” the de-
termination of appeals of criminal convictions for incest, and the resolu-
tion of sometimes vexing and complex problems involving wills, trusts,
and inheritances. We will consider examples of each.

The degree to which courts unreservedly consulted Leviticus for guid-
ance on definitional questions in domestic relations law can be illustrated
by the case of Brotherhood of Locomotive Firemen and Enginemen v.
Hogan, decided in 1934 by the Federal District Court for Minnesota.8 4 At
issue was the legal definition of “affinity.” “Affinity,” the Court wrote, “is
generally defined by the relationship by marriage between a husband and
his wife’s blood relatives, or between a wife and her husband’s blood rel-
atives. Unlawful or forbidden marriages due to affinity are set forth in
Leviticus, chapter XVIII.

85

Courts also looked to the levitical degrees as a means of justifying
convictions for incest. Lipham v. State involved a prosecution under
Georgia law of a husband who had sexual relations with his step-daugh-
ter, the out-of-wedlock child of his wife. 8 6 The Georgia Supreme Court
sustained his conviction:

80 Ibid., 261, 142 N.E. at 788.
8I State v. Smith, 30 La. Ann. 846, 849 (1878).
82 State v. Andrews, 167 Iowa 273, 278, 149 N.W. 245, 247 (1914).
83 State v. Lamb, 209 Iowa 132, 134, 227 N.W. 830, 831 (1929).
84 Brotherhood of Locomotive Firemen and Enginemen v. Hogan, 5 F. Supp. 598 (D.

Minn. 1934).
85 Ibid., 604-605.
86 Lipham v. State, 125 Ga. 52, 53 S.E. 817 (1906).

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 271

If a man marry the mother of an illegitimate daughter, and take
the daughter into his care and custody, he becomes charged with
a duty towards her. His disregard of morality and decency in hav-
ing sexual intercourse with her is a crime transcending a mere
misdemeanor. The act has all the elements which constitute in-
cest. As incest, it should be punished. ‘Thou shalt not uncover
the nakedness of a woman and her daughter.’ Leviticus, XVIII,
17.”87

The New York Court of Appeals was confronted with an even more
reprehensible version of the question Lipham presented. The defendant
in People v. Lake had fathered an out-of-wedlock daughter and some
years later, when she had “just grown into womanhood,” hired her as his
“bookkeeper.” 88 He took advantage of her sexually, and was charged and
convicted of incest. The Court of Appeals sustained his conviction, rely-
ing for support in part upon its reading of English law and the Book of
Leviticus: “It was early held to be unlawful for a bastard to marry within
the Levitical degrees (Hains v. Jeffel, 1 Ld. Raymond 68); a doctrine
which of necessity recognized relationships of consanguinity.”

89 Since
marriage was impossible by reason of incest, the Court reasoned, the de-

fendant’s illicit relationship should also be deemed incestuous and so
punishable.

90

Courts finally looked to the levitical degrees in establishing inheri-
tance rights among close family members. This is especially evident in

some lawsuits that sought to establish parental rights to inherit from ille-
gitimate offspring or to represent their offspring’s estates in wrongful-
death actions. In these cases, those who opposed extending inheritance
rights or the right to bring a cause of action tended to cite common-law
rules derived in part from a reading of the “levitical degrees.” In essence,
it was claimed that illegitimate children were bound to observe the levit-

17 Ibid., 54-55,53 S.E. at 818.
88 People v. Lake, 110 N.Y. 61,’62, 17 N.E. 146, 146 (1888).
89 Ibid., 62-63, 17 N.E. at 147.

90 Ibid. Cf. Morgan v. State, 11 Ala. 289, 291 (1847) (sexual relations between a par-
ent and child “at variance with the laws of God and man” and a violation of the Henrician

statute “prohibit[ing] all marriage within the Levitical degrees”); and State v. Bartley, 304

Mo. 58, 62, 263 S.W. 95, 96 (1924) (relying on Joel Prentiss Bishop and its own reading

of the Henrician statute to condemn “marriages between persons related by blood or mar-

riage within the Levitical degrees”).

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ical degrees in their choice of marriage partners, but that this should be
the only aspect of their relationship to their biological parents that should
be given recognition by law. They should, on this reading of the sources,
refrain from sexual intimacy with close blood relations but otherwise
share none of the legal privileges that were derived from membership in
the family. Courts tended to accept this argument unless statutory sup-
port could be found evincing a legislative intent to abolish the old com-
mon-law disabilities of bastardy. Where the old disabilities had been
done away with, on the other hand, courts tended to permit these parental
claims to go forward.9 1

3. One Flesh and Putting Asunder: The Common-Law Reception of
Biblical Ideals of Marital Unity

So far, we have considered the ways in which courts invoked the lan-
guage and authority of the divine law and the law of God in describing
and defining the marital relationship; and the ways in which courts em-
ployed the Book of Leviticus, sometimes but not invariably as mediated
through the law of Henry VIII, to resolve a variety of questions on incest.
Next, we shall consider the judicial usage of a particular biblical teach-
ing, i.e., Jesus’s declaration that marriage must be permanent, to address
contemporary questions of separation and divorce.

The Book of Genesis, in the poetic diction of the King James Bible,
declared: “A man shall leave his father and his mother, and shall cleave
unto his wife; and they shall be one flesh. ‘ 9 2 Close variations of this lan-
guage and imagery were used by Jesus, as recorded in the Gospels of
Matthew and Mark, to establish an ideal of unbreakable unity between
husband and wife. In Matthew, Jesus declared:

Have ye not read, that he which made them at the beginning,
made them male and female. And he said, ‘For this cause a man

91 See e.g. Marshall v. Wabash Railroad Company, 120 Mo. 275, 281, 25 S.W. 179,
181 (1894) (distinguishing the common-law rule with its reliance on the levitical degrees
to deny marital or inheritance rights and state statutory reform that reaches a contrary re-
sult respecting inheritance); Brisbin v. Huntington, 128 Iowa 166, 175, 103 N.W. 144, 147
(1905) (relying on language similar to Marshall to reach the same result); Wheeler v.
Southern Railway Company, 111 Miss. 528,538,71 So. 812, 814 (1916) (the harshness of
the common-law rules repealed by statute); L. T Dickason Coal Company v. Liddil, 49 Ind.
App. 40, 44, 94 N.E. 411,412 (1911) (relying in part on the result in Marshall to reach a
similar conclusion); and Williams v. McKeene, 193 Ill. App. 615, 618 (1915) (describing
the law of Henry VIII as “God’s law” but recognizing at the same time the possibility of
statutory amendment where inheritance rights were concerned).

92 Genesis 2:24.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 273

shall leave father and mother, and shall cleave to his wife; and
they twain shall be one flesh? Wherefore they are no more twain,
but one flesh. What therefore God hath joined together not man
put asunder.

93

Mark’s account of this teaching represented a largely verbatim sum-
mary of that found in Matthew.94 St. Paul made use of similar imagery in
Ephesians:

For we are members of his body, of his flesh, and of his bones.
For this cause shall a man leave his father and mother, and shall
be joined unto his wife, and they two shall be one flesh.

95

This group of closely-related biblical texts exerted wide influence on
judicial thought regarding marriage and divorce for the nineteenth and
much of the twentieth centuries. One can find different variations on
these biblical themes in any number of judicial contexts. One of the most
important of these usages, obviously, was the defense of the integrity of
the marital unit itself. Marriage was a sacred relationship that should be
free from attack by third parties and respected and preserved by those
who are joined by its yoke.

In a world of limited, fault-based divorce, where a party seeking a di-
vorce needed to demonstrate some sort of marital misconduct on the part
of one’s spouse, at least some petitioners claimed that they were entitled
to a divorce because their partners had never achieved any real degree of
emotional separation from their parents. To paraphrase Jesus’s teaching,
they did not leave their mother and father, emotionally, and so were un-
able to cleave to their spouse and thereby become one flesh. This lack of
independence, the claim went, so gravely disrupted the new household
that it had no real chance of succeeding against the vicissitudes of fortune.

An Indiana case from 1897 illustrates the way this argument might be
made and the way in which a court might quote the Bible in response.
The case involved a claim for alienation of affection brought by the for-

93 Matthew 19:5-6.
94 “But from the beginning of creation God made them male and female. For this

cause shall a man leave his father and mother, and cleave to his wife. And they twain shall
be one flesh, so then they are no more twain, but one flesh. What therefore God hath joined
together, let not man put asunder” (Mark 10:6-9).

95 Ephesians 5:30-31.

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mer husband against his ex-mother-in-law. 96 The mother-in-law, it was
alleged, had sought “to deprive [husband] of the society and services of
his wife, and cause her to separate from him. 97 The Court responded
with a mixture of biblical quotation and outright theology:

Marriage is the most sacred and holy relation known to Divine or
human law. It is an institution ordained of God, sanctioned by all
the nations of the earth, and recognized the world over as the
foundation of society and the school of morals, and no one has a
right to destroy and disrupt that relation, except for good and suf-
ficient cause. It was early declared in the Mosaic law that a man
should leave his father and mother, and cleave unto his wife, and
that they should be one flesh. The Great Teacher said: ‘But from
the beginning of the creation, God made them male and female.
For this cause a man leave his father and mother and cleave to his
wife; and they twain shall be one flesh. What, therefore, God
hath joined together let no man put asunder.

‘ 98

While most cases do not engage in this level of scriptural exegesis or
theological speculation, any number of cases invoke the imagery of the
child leaving his or her parents and cleaving to the spouse whenever a
dispute involving the parents or in-laws came to be litigated. Thus the
Vermont Supreme Court lectured a husband who would not move apart
from his relatives in order to accommodate his wife’s apparent strong de-
sire for living arrangements independent of his old family ties: “Any man
who has proper tenderness and affection for his wife would certainly not
require her to reside near his relatives if her peace of mind were thereby
seriously disturbed. This would be very far from compliance with the
Scriptural exposition of the duty of husbands: ‘For this cause, shall a man
leave father and mother and cleave to his wife, and they twain shall be
one flesh.” 99

Similarly, a Michigan case decided in 1928 pitted a husband who in-
sisted that his mother reside in the family home and a wife who separated
from him and sought a divorce on that account. 1 00 Again, one sees a court
invoking Scripture to admonish a husband to perform his husbandly du-
ties: “In this the plaintiff [husband] was wrong. In other circumstances,

96 Jonas v. Hirshburg, 18 Ind. App. 581,48 N.E. 656 (1897).
97 Ibid., 600-601,48 N.E. at 662.
98 Ibid., 600, 48 N.E. at 662.
99 Powell v. Powell, 29 Vt. 148, 150 (1856).

100 De Mauriac v. De Mauriac, 243 Mich. 385, 220 N.W. 786 (1928).

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 275

his devotion and loyalty to his mother would be commendable, but where
the wife’s interests intervene, his first duty is her welfare and happiness.
‘For this cause shall a man leave father and mother, and shall cleave to his
wife; and they twain shall be one flesh.”‘ 10 1

One, in fact, finds this sort of scripturally-grounded analysis as re-
cently as the late 1940s. At issue in Maricopa County v. Douglas was a
statute that required children to make contributions toward the needs of
elderly and infirm parents.’ 0 2 The County Attorney sought to enforce the
statute against community property owned by the elderly parent’s daugh-
ter and her son-in-law. The couple asserted that such enforcement would
run counter to the state’s policy in favor of marriage. The Court agreed,
using Scripture for support:

We must now decide which theory public policy favors most-
the support of the aged or the maintenance of the community. We
think the latter is more important. The Holy Scripture tells us
‘Therefore shall a man leave his father and his mother, and shall
cleave to his wife; and they shall be one flesh.’ Genesis, 2:24.”103

The integrity of the marriage might also be attacked not by outsiders
but by one of the parties, either by seeking a divorce that was unjustified
in the eyes of the court or by engaging in acts of misconduct-criminal
or otherwise-at the expense of an innocent spouse. Humber v. Humber,
a Mississippi case from 1915, involved a husband who alleged that his
wife had been excessively cruel to him, thus warranting the granting of a
divorce.”° The Court found the husband’s allegations of cruelty insuffi-

101 Ibid., 386-387, 220 N.W. at 787.
102 Maricopa County v. Douglas, 69Ariz. 35, 208 P.2d 646 (1949).
103 Ibid., 43, 208 P.2d at 651. The word “community” standing alone as a noun in this

quotation is an interesting and perhaps deliberately ambiguous choice of words. In the
context of a suit over the extent to which the State might invade community property, the
Court clearly intended to say that the couple’s property rights might not be so seized. But
a more extensive reading of this noun is also possible. One might thus understand the
Court to be protecting not the community property alone, but the “community” formed by
the unity of husband and wife. Such a reading is supported by the Court’s subsequent in-
vocation of Genesis 2:24.

104 “From the proof adduced by appellant it appears his purpose to show that the cruel

and inhuman treatment complained of consisted of the conduct of his wife in a number of
incidents, during their travels, in which she displayed temper and dissatisfaction with him
and his provisions for her comfort and entertainment, and wherein she was inconsiderate
of his feelings, abusive to him, discourteous and rude to his friends and kinsfolk, and gen-
erally disagreeable in her demeanor.” 109 Miss. 216, 219, 68 So. 161, 161 (1915).

THE JURIST

cient to justify a divorce and looked to the Bible for justification for its
determination:

Marriage is a most solemn contract, provided for by the laws of
the state and sanctified by the ceremonies of the church. The dis-
solution of its bonds is no light matter. The best sentiment of so-
ciety is opposed to divorce. The law authorizing divorces for cer-
tain causes requires a strict compliance with its provisions. The
church is guided by these words of eternal truth touching the sub-
ject: “‘From the beginning of the creation God made them male
and female. For this cause shall a man leave his father and
mother, and cleave to his wife; and they twain shall be one flesh;
so then they are no more twain but one flesh. What, therefore,
God hath joined together, let no man put asunder. 1

05

A much older case, Logan v. Logan, dating to 1841 Kentucky, reached
a similar result in favor of the marriage, on a fact pattern the details of
which the Court delicately refrained from probing too explicitly.106 In
establishing the legal standard to be applied, the Court looked to ecclesi-
astical law’s understanding of cruelty. There must be true “saevitia”-
“savagery”-the Court wrote. 107 “Less severity than this will not autho-
rize a court in this State to ‘put asunder’ those whom ‘God hath joined
together.’ And were it otherwise, domestic quarrels might mischievously
engross all the services of Courts of Justice.”‘

10 8

105 Ibid., 226-227, 68 So. at 164.

’06 41 Ky. 142 (1841). The Court’s delicacy is remarkable: “As might have been ex-
pected, [the couple] lived together in apparent harmony and happiness until early Febru-
ary, 1838, when, for the first time, so far as we are informed, their domestic peace was dis-
turbed by intemperate complaints and upbraidings on her part for alleged grievances,
neither satisfactorily established nor explained by proof; and by unresponsive conduct
upon his part, sometimes neither conciliatory nor the most prudent, and which tended
rather to exasperate than to soothe the deeply moved feelings of his discontented and irri-
tated wife. Their discord, soon becoming clamorous, attracted public observation which,
instead of stifling, seemed only to inflame her heated passions. The intervention of
friends, in and out of the church, invoked by Mr. Logan ostensibly for pacification, having
failed and only added fuel to the flame, the prospect of cordial reconciliation became al-
most hopeless; and the irritability and wretchedness of the parties seemed so fixed and ex-
treme as to indicate either the existence of some untold and deep-rooted grief or a destitu-
tion of that love and confidence which alone can happily cement the conjugal union, and
without which wedlock is a curse.” Ibid., 143.

107 41 Ky. 142 (1841) 147.
10s Ibid.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 277

The use of the canonistic category of saevitia by a pre-Civil War Ken-
tucky Supreme Court would by itself be a remarkable demonstration of
the deep and continuing influence of the canon law on American legal
forms.. 109 Focused as we are on scriptural influence, we might try to read

Logan and Humber together as support for the proposition that when
courts invoked biblical expressions like “one flesh” or “put asunder,”
they were generally willing to sustain the marriage in the face of a peti-
tion for divorce. Lanier v. Lanier, an 1871 Tennessee case, may or may
not be seen as support for this hypothesis, depending upon the weight
one assigns to the dissenting opinion filed in that case.

110

The facts in Lanier can described as extreme. The husband alleged that
his wife had succeeded in poisoning him; that he became deathly ill
thanks to the effects of the poison; and that she deserted him during his
hour of illness and need.11′ Even if these facts were not literally true, the
majority of the Court agreed, the wife’s desertion was sufficient to justify
the granting of the divorce.

1 2

This result caused Justice Peter Turney to dissent. Turney (1827-
1903) had been a colonel in the First Tennessee Infantry, demonstrating
remarkable bravery at Antietam and Fredericksburg. After the war, he
was elected to the Tennessee Supreme Court in 1870 and became chief
justice in 1886. He would subsequently be elected governor of the State
of Tennessee. 1 1 3 Turney’s dissent put front and center the Christian char-
acter of marriage including especially his biblically-grounded under-
standing of its indissoluble character.

Sounding very like St. Augustine, Turney wrote that marriage subsists
first in friendship between the parties. Turney, however, wished to apply
this first principle directly to the case at hand. Thus, he observed that
marital friendship:

thrives under constraint, and never rises to such a height as when
any strong interest or necessity binds two persons together and

109 Saevitia is briefly noted supra.
110 Lanier v. Lanier, 52 Tenn. 462 (1871).
“‘ Ibid., 463-464.
112 Ibid., 464-465.
113 Daniel M. Robinson, “Tennessee Politics and the Agrarian Revolt, 1886-1896,”

Mississippi Valley Historical Review 20 (1933) 365,373-378, provides a useful thumbnail
sketch of Turney’s career in Tennessee’s gubernatorial politics. Because of his interest in
prison reform, a correctional institution for young offenders would later be named in his
honor.

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gives them some common object of pursuit. We need not, there-
fore, be afraid of drawing the marriage knot, which chiefly sub-
sists by friendship, the closest possible.”

1 14

Having built a foundation sufficient at least in his own mind to sustain
further argument, Turney chose the last part of this sentence-on the
drawing of the “closest possible” marital knot-for further comment. 115

There are good social reasons, Turney asserted, for rigorously enforcing
the indissolubility of marriage. There was a public interest in the proper
selection of marriage partners; and the enforcement of a rigorous stan-
dard of indissolubility, he believed, would concentrate the minds of
young people contemplating marriage. “[W]e will find male and female
not only more cautious, thoughtful and honorable in their affiances and
marriages, but much of other crime will fail to publish itself through the
Courts, because it shall have passed away.”

‘”16

After reviewing the significance of human friendship to marriage and
the social benefits derivable from a strict enforcement of indissolubility,
Turney turned his attention to the question of religious faith: “Every
lawyer in the land has been taught not only that the Bible is law, but that
it is the source of law. It is found in every complete law library as part
thereof, and the standard work therein.””

7

Lawyers, judges, officers of the court, must all take an oath of office
upon the Bible.”I8 Turney emphasized that this is “so because the Bible
is the supreme law.”‘ 19 And the Bible contained the fundamental rules
that should govern marriage for all days and ages, including our own:

In this authority, from which every well defined right of person
and property is derived, we find-Matthew, chp. 19, verses 3 to
10, inclusive-the law of divorce stated in these words, by our
Saviour: “‘The Pharisees also came unto him, tempting him and
saying unto him, ‘Is it lawful for a man to put away his wife for
every case?’ And he answered and said unto them, ‘Have ye not

“14 52 Tenn. at 466 (Turney, J., dissenting). Turney continued, “The amity between the
persons, where it is solid and sincere, will rather gain by [constraint]; and where it is wa-
vering and uncertain, this is the best expedient for fixing it.” Ibid., 466-467.
“‘ Ibid., 467 and repeated again at 468.
116 Ibid., 468.
“t Ibid., 470.

l Ibid.
“1 Ibid., 471.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 279

read, that he which made them at the beginning male and female,
and said, ‘for this cause shall a man leave father and mother and
cleave to his wife; and the twain shall be one flesh. “They said
unto him, ‘Why did Moses then command to give a writing of di-
vorcement and to put her away?’ “He saith unto them, “Moses,
because of the hardness of your hearts, suffered you to put away
your wives; but from the beginning it was not so.”‘And I say unto
you, whosoever shall put away his wife, except it be for fornica-
tion, and shall marry another, commiteth adultery, and whoso
marrieth her which is put away, doth commit adultery.”

‘ 120

Turney viewed the Court as being put to a choice: The Court must se-

lect between “a statutory regulation demoralizing in its every influence
and tendency” and “an express divine law.”

12 He made it clear that he
opted for the Bible and God’s law.1

2 2

This constellation of biblical phrases played a major role in justifying
other distinctive aspects of the Anglo-American law of domestic rela-
tions. Judges and jurists were particularly keen to use the Bible to sup-
port arguments in favor of femme covert-the doctrine that held a
woman’s legal personality to be absorbed into that of her husband’s at the
time of marriage. 123 Another area of law that looked to this biblical text

120 Ibid., 471-472.
121 Ibid., 472.

122 Another instance in which divine law was invoked was the sui generis case of Arm-

strong v. Berwick Borough Overseers. At issue was an attempt by overseers of a poor

house to separate a husband and wife. The Court rejected this possibility, reasoning: “The

common law declares against it, and the divine law says that after marriage, they are no

longer twain but one flesh, and what therefore God hath joined together let no man put

asunder.” 10 Pa.C.C. 337 (Pa.Com.Pl. 1891).
123 See e.g. Bear’s Administrator v. Bear, 33 Pa. 525, 526 (1859) (“The doctrine of the

common law was, that the husband and wife are one person, the twain have become one

flesh”); Jacques v. Trustees of the Methodist Episcopal Church in New York, 17 Johns.

548, 582 (1820) (Platt, J., concurring and dissenting) (“I confess that I love and venerate
the primeval notion of that mystical and hallowed union of husband and wife: when ‘they

twain become one flesh’ “); Byrd v. Vance, 158 Ga. 787, 790, 124 S.E. 705, 707 (1924)
(looking to the biblical language of “the twain are one flesh” to justify wife’s legal dis-

abilities); Madden v. Hall, 21 Cal. App. 541, 549, 132 P. 291,294 (1913) (” ‘The oneness
constituted by the marriage relation at common law doubtless is based upon the statement

of the Christ, ‘For this cause a man will leave his father and his mother and cleave unto his

wife, and they twain become one flesh’ (quoting Warr v. Honeck, 8 Utah 61, 66, 29 P.

1117, 1118 (1892)); Pelzer, Rodgers and Company v. Campbell and Company, 15 S.C.

581, 588 (1881) (“To speak in general terms, husband and wife are a unity, or, as it was ex-

pressed by the great law-giver, ‘they twain shall be one flesh’ “); Drake v. Birdsall and

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for justification was the doctrine of spousal immunity, by which hus-
bands and wives might be prohibited from testifying against each other
in judicial proceedings, 24 or otherwise forbidden from bringing any
cause of action against one another. 25

Company, 10 Ohio Dec.Reprint 56 (Ohio Com.P1. 1887) (speaking of a legislative act that
had the effect of limiting the common-law disability placed on wives’ contractual capaci-
ty, the Court wrote: “[I]t is not to be assumed … that the Ohio Legislature has undertak-
en to annihilate nature, nullify science, enact as law that which is condemned by the Di-
vine Law, by human reason, by the common law which is the ‘perfection of reason.’ “); cf.
Corn Exchange Insurance Company v. Babcock, 42 N.Y 613,645 (1870) (rejecting “[t]he
old religious idea of a mystic union in marriage, by which ‘they twain shall become one
flesh’ and the doctrine offemme-covert consequent upon this teaching).

124 John Wigmore, in his treatise on the law of evidence, asserted that the oldest justifi-
cation for the spousal testimonial immunity was Sir Edward Coke’s (1552-1634) declara-
tion that “[i]t hath been resolved by the justices that a wife cannot be produced either for
or against her husband, quia sunt duae animae in came sua” John Henry Wigmore, Evi-
dence in Trials at Common Law, rev. by James H. Chadbourn (Boston: Little, Brown, and
Company, 1979) 2:857 (quoting Sir Edward Coke, Commentary Upon Littleton (1628)
6b)). Older cases, generally quoting Coke’s Latin, echoed this sentiment. Thus Smith v.
Boston and Maine Railroad asserted that Coke’s maxim reflected a broader public policy
“which regards as of vital importance the preservation of domestic peace and harmony,
and the promotion of the unreserved confidence between the husband and wife which the
sanctities of that relation require.” 44 N.H. 325,334 (1862). In Handlong v. Barnes a New
Jersey Court also defended in came una “upon the broad ground of the importance of pre-
serving the sanctity of the marriage relation.” 30 N.J.L. 69, 71 (1862). Cf. Reeves v. Herr,
59 111. 81, 83-84 (1871). On the other hand, Judge Charles Edward Clark, principal drafts-
man of the Federal Rules of Civil Procedure, wrote in 1949: “Admittedly the common-law
principle that ‘a wife cannot be produced either for or against her husband, quia sunt duae
animae in came una … is gone; indeed, there is none now so poor as to do it reverence.”
176 F.2d 564, 569 (2d Cir. 1949) (Clark, J., dissenting). Cf., In re Grand Jury Matter
which presented the question whether an offer of prosecutorial immunity overrode the
spousal privilege. The Court’s majority ruled that the spousal immunity continued to serve
important social goods, such “marital harmony.” 673 F.2d 688, 693 (3d Cir. 1982). Writ-
ing in dissent, Judge Arlin Adams reviewed the history of the privilege, beginning with
Coke, to conclude that it should be strictly construed when applicable at all. Ibid.,
696-699 (Adams, J., dissenting).
125 The history of spousal immunity from suit, including its foundation in the scriptur-

al interpretation of the early common lawyers as well as early case law, is reviewed in the
following articles: Carl Tobias, “Interspousal Tort Immunity in America,” Georgia Law
Review 23 (1989) 359, 361-441 (a thoroughly researched argument for the abolition of the
immunity that cites many early materials). Stephen Kelson, “The Doctrine of Interspousal
Immunity: Does It Still Exist in Utah?” Journal of Law and Family Studies 3 (2001) 161,
161-163; Laura Wannamaker, “Note: Waite v. Waite: The Florida Supreme Court Abro-
gates the Doctrine of Interspousal Immunity,” Mercer Law Review 45 (1994) 903-910, are
shorter studies that also look to the religious origins of the doctrine. Reliance on “one

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 281

IlI. Marriage and the State:

A. Marriage is Religious:

This review of the Christian sources of American marriage law reveals
a remarkable consistency that has endured over centuries, from the
twelfth century until the last two or three decades of the twentieth. From
the twelfth century to the middle twentieth, it was acceptable for jurists
to refer to marriage as something brought into being through divine in-
spiration or guidance. Marriage was of “divine institution.” It belonged
not only to the law of man to regulate but to the law of God, which
brought it into being. From the twelfth century to the middle twentieth,
legal writers were willing to look to Scripture for guidance, or at the very
least nod in the direction of Scripture when rendering particular judg-
ments. To be sure, some of this might have been rhetorical posturing or
conventional piety. But the use of this body of words and phrases, im-
agery and ideas, spoke to a set of shared cultural understandings that
viewed marriage in an expressly Christian context. The presence in
American judicial decisions of the nineteenth and early- and mid-twenti-
eth centuries of this older vocabulary, in other words, bespoke a connect-
edness to a cultural reality that had been formed and nurtured through the
rich deposit of historical Christianity.

But while this body of material holds fascination as a worthy subject
for an historical investigation in intellectual or cultural history, it also
raises profound questions for contemporary lawyers who recognize that
law is inevitably an historical process. We have been through upheavals
in the last half-century that make this particular body of case law and
principles seem as odd and quaint as any museum piece one is likely to
encounter at the Smithsonian. No judge, writing in her public capacity,
would today speak of the divine institution of marriage, although, obvi-
ously, religious traditions continue to subscribe to such beliefs and

flesh” has now largely disappeared; but the philosophy that it expressed-a desire for har-
mony and unity between the spouses-can still be found in some cases. Thus the Virginia
Supreme Court wrote in 1975: “We are not concerned with the outmoded fiction that a
husband and wife are of ‘one flesh.’ We are concerned.., with a policy and with a rule of
law that are designed to protect and encourage the preservation of marriages. Interspousal

immunity is only a part of a whole system of laws and policies which recognizes the mu-
tual obligations arising from a marriage and which encourages both marital and family
harmony.” Korman v. Carpenter, 216 Va. 86, 90, 216 S.E. 2d 195, 197 (1975).

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judges who belong to such traditions might give private acknowledgment
to this truth.

126

Why, then, should we recall this history today? What relevance does it
have, outside of discrete and insular communities of believers? I might
suggest that if we acknowledge the historical reality that western lawyers
for a span of years running from the middle twelfth to the early twentieth
centuries quite automatically accepted the proposition that marriage had
a religious grounding worthy of respect if not enforcement, one is led to
ask another question: Is there something about marriage that is irre-
ducibly religious? Does this larger western historical experience, only
abandoned within the lifetimes of many of the readers of this essay, con-
nect to something more universal about the human person and the nature
of marriage?

One might attempt an answer to this question by considering findings
from the discipline of anthropology. Bronislaw Malinowski (1884-
1952) is still widely considered to be among the most important of the
founders of anthropological studies. Born to a Polish university profes-
sor and his wife and a member by birth of Poland’s landed aristocracy, 127

Malinowski was at home throughout Europe, studying not only in his na-
tive Poland but also at Leipzig and teaching for most of his career at the
University of London and the London School of Economics. He would,
in fact, become a leader of English academic anthropology. He did im-
portant field work among the natives of Papua, New Guinea, and the Tro-
briand Islanders; and even though details of this field work have been
questioned, his larger conclusions-on questions like the necessary rela-
tionship between religion, ritual, and the great transitions of human
life-birth, marriage, death-remain persuasive today.

Bronislaw Malinowski’s research program converged on two of the
principal themes of this essay-the centrality of religious belief for
human society; and the transcendent significance of marriage to soci-
ety’s perpetuation.

126 Canon 1059 of the 1983 Code of Canon Law of the Catholic Church declares that
Christian marriages are regulated by the divine law and the canon law.

127 Grazyna Kubica, “Malinowski’s Years in Poland,” in Malinowski Between Two
Worlds: The Polish Roots of an Anthropological Tradition, eds. Roy Ellen, Ernest Gellner,
Grazyna Kubica, and Janusz Mucha. (Cambridge, UK: Cambridge University Press,
1988) 88-90.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 283

Malinowski was raised Catholic and was a graduate of the Jagellonian
University, where his father taught. 128 His earliest published writings re-
flected on religious themes. One of his first essays proposed a definition
of religion that would remain remarkably constant, with appropriate re-
finements, through his later work: “Religion: This is a system of tradi-
tions explaining and justifying the world, and a system of norms regulat-
ing our conduct.”

‘ 12 9

Although a confirmed agnostic, Malinowski’s own work remained
saturated with a kind of cultural Catholicism. He thought in terms of the
faith of his youth no matter the time and space he put between himself

and his childhood. He appreciated that all religious belief had in common
a desire to put the believer in contact with the deity.

130 He used a distinc-
tively Catholic vocabulary to describe the social phenomena he ob-
served. 3 I And when he witnessed a husband beating his wife while con-
ducting field research in aboriginal Australia, he was moved to think of
his own wife and recorded in his diary: “association: marriage and spiri-
tual harmony.”

132

Malinowski was moved to address marriage as an outgrowth of his
field work. In his work, he encountered a great variety of forms of
“human marriage.” Marriage might come in the form of “monogamy,
polygyny, and polyandry; matriarchal and patriarchal unions; house-
holds with patrilocal and matrilocal residence.”

133 Not every society

128 Michael W. Young, Malinowski: Odyssey of an Anthropologist, 1884-1920 (New
Haven, CT: Yale University Press, 2004) 73-86.

129 Bronislaw Malinowski, “Religion and Magic: The Golden Bough,” in The Early

Writings ofBronislaw Malinowski, eds. Robert J. Thornton and Peter Skalnik, tr. Ludwik

Krzanowski. (Cambridge, UK: Cambridge University Press, 1993) 118.
130 “In all revealed dogma there is always one pragmatic truth: it not only tells us that

totems, spirits, saints, and gods exist, it also demonstrates how by prayer, sacrifice, sacra-

ment, and moral communion we can reach the Divinity.” Bronislaw Malinowski, Freedom
and Civilization (New York: Roy Publishers, 1944) 209.

131 See, below for instance, his use of “sacrament” to describe marriage.

132 Bronislaw Malinowski, A Diary in the Strict Sense of the Term (Stanford, CA: Stan-

ford University Press, 1989) 176. Malinowski’s daughter recalled, regarding her parents’

faith and their marriage: “It was a civil, not a religious, wedding, because neither of them
were Christian believers. Bron[islaw], like most Poles, had been brought up in all the rites

and beliefs of the Roman Catholic Church but lost his faith at an early age, an instance
where his devout mother’s influence failed.” Helena Wayne, “Bronislaw Malinowski: The

Influence of Various Women on His Life and Works,” American Ethnologist 12 (1985)
529,535.

133 Bronislaw Malinowski, Sex, Culture, and Myth (New York: Harcourt, Brace, and
World, Inc., 1962) 3.

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taught that marriage was the sole legitimate outlet for human sexual ex-
pression. In many societies, “unmarried boys and girls are free to mate in
temporary unions, subject to the barriers of incest and exogamy, and of
such social regulations as prevail in their community.”‘ 34 “There are,” he
acknowledged, “a number of communities in which the marriage bond is
broken as regards the exclusiveness of sex with the consent of both part-
ners and with the sanction of tribal law, custom, and morality.”‘

35

In all of this diversity, Malinowski recognized some common elements.
Grounding his work on the insights of his old professor Edvard Wester-
marck,136 Malinowski asserted: “Even in its biological aspect,… ‘mar-
riage is rooted in the family rather than the family in marriage.”‘137 “Mar-
riage,” Malinowski continued, “on the whole is rather a contract for the
production and maintenance of children than an authorization of sexual
intercourse.”‘ 38 It is this agreement, Malinowski argued, that carried tran-
scendent significance. Marriage, so understood, “has to be concluded in a
public and solemn manner, receiving, as a sacrament, the blessings of re-
ligion and, as a rite, the good auspices of magic.”’13

9

Malinowski elaborated on this theme in a debate he had with Robert
Briffault in the early 1930s, which was subsequently edited and pub-
lished posthumously by Ashley Montagu in 1956.140 Under the chapter
heading “Marriage as a Religious Institution,” Malinowski began:

Marriage is regarded in all human societies as a sacrament, that
is, as a sacred transaction establishing a relationship of the high-
est value to man and woman. In treating a vow or an agreement
as a sacrament, society mobilises all its forces to cement a stable
union.

4 1

114 Ibid., 4.
131 Ibid., 7.

136 On Malinowski’s relationship to Westermarck, see Michael W. Young, “Introduc-
tion,” in The Ethnography of Malinowski: The Trobriand Islands, 1915-1918, ed. Michael
W. Young. (London: Routledge and Kegan Paul, 1979) 4.

137 Malinowski, Sex, Culture, and Myth, 3.
138 Ibid., 4.
139 Ibid., 3.
140 Marriage Past and Present: A Debate Between Robert Briffault and Bronislaw Ma-

linowski, ed. M.F. Ashley Montagu (Boston: Porter Sargent Publishers, 1956).
141 Ibid., 64.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 285

In using the term “sacrament,” Malinowski did not intend to refer to
the religious observances of the Catholic Church. His intention, rather,
was to use this familiar language to make the larger point that historically
and anthropologically all societies have attached symbolic significance
to the act ofjoining parties in marriage. Malinowski can be understood to
have asserted that in every society marriage carries some “sacramental,”
i.e., religious significance. Symbols freighted with meaning are used to
signify the enduring connection formed by the parties-rings perhaps or
special garments. 142 The families of the parties are usually intimately in-
volved in making the arrangements and planning the ceremonies.

143

Some level of community participation is also expected in solemnizing
the special event.”1 The parties utter special words signifying their com-
mitment and thereby magically transform the relationship. 145 These
symbols, these ceremonies, these exchanges of promises, are intended to
mark the union off as something of transcendent value, something that
the larger society stands ready to protect and preserve, indeed, something
for which God or the gods can and must serve as guarantors.

Malinowski, furthermore, admonished those in his own day who
wished to desacralize the marital relationship:

Are we to secularise marriage completely and withdraw it from
the control of religion, and perhaps even of law, as is the ten-
dency in the Soviet legislation and in the program of many
would-be reformers?”

146

Malinowski warned against the danger inherent in an intense and com-
plete secularization of marriage. Marriage had been “sanctioned by reli-
gion, as well as by law.., throughout humanity.”‘ 47 Indeed, in his mind,
religion and law had always been interconnected in deep and almost pri-
mal ways:

[T]he religious sanctions embrace the legal character of mar-
riage, that is, they make it binding, public, and enforced by the
organised interests of the community.”

1 48

142 Ibid., 65.

143 Ibid.
144 Ibid.

145 Ibid., 68.
146 Ibid., 66.

147 Ibid., 67.
141 Ibid., 70.

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Malinowski acknowledged that he himself did not belong to an identi-
fiable religious persuasion. 149 He admitted that agnostics might dispute
the connections between religion and marriage, but even agnostics
would acknowledge the importance of marriage to community order.

150

Even the agnostic, Malinowski asserted, “must endow the institution of
marriage and the family with new values, and so make them stable in his
own fashion.”‘

151

The trend that Malinowski presciently anticipated in the early
1950’s-that marriage might be entirely desacralized-is seemingly
coming to pass. At the very least, the American legal order is now rigor-
ously committed to ensuring the success of this project of desacraliza-
tion. While this is not the place for detailed argument, it might suffice to
point out that the social crises with which we are faced–divorce, the
abortion of nearly 1,000,000 unborn children every year, the widespread
incidence of children born out-of-wedlock-may in part result from this
larger effort to reduce marriage from a sacred enterprise, blessed, sanc-
tioned, and sustained by communal ritual, to something much more
mundane, even banal. The consequence of this development has become
the disposability of human relationships themselves.

B. The Law Teaches Values:

Not only is marriage in some irreducible sense religious; law, in some
fundamental sense inevitably teaches values. This is a major argument
made by Mary Ann Glendon in her book Rights Talk.152 Professor Glen-
don, of Harvard Law School, did not take up marriage in her book; she
wrote, rather, about rights and the ways in which American courts have
miseducated the public on the relationship of rights and duties. Her ar-
gument, however, is capable of broader application. We should therefore
pay attention to her treatment of the judiciary’s mistreatment of the ques-
tion of communal responsibility and rights, in order to draw some
lessons for the domestic relations materials we have already reviewed.

Americans are fond, Glendon observed, of seeing rights as divorced
from duties; when they invoke rights, it is usually because they want to

141 Ibid., 71.
50 Ibid., 72.

‘s1 Ibid.
152 Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press,

1991).

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 287

satisfy some individual preference with little thought to larger social
consequences.’ 5 3 We live, she writes, in “[t]he high season of rights.”‘

5 4

Comparative law, Glendon notes, quickly reveals how very idiosyncratic
American legal rhetoric is on the subject of rights. She compares and
contrasts naturalization ceremonies in the United States and Canada.

155

New citizens of each country are commonly addressed by the govern-
ment official who swears them in. In the United States, such a speech is
likely to emphasize the transcendent significance of individual rights;

156

while in Canada, in contrast, it is likelier that one will be called to take up
the responsibility of being a good neighbor to others.

157 Such a cere-
mony, Glendon notes, is likely to make a lasting impression on one’s
mind.

158

A central core of Glendon’s book is an analysis of the no-duty-to-
rescue rule and its impact on American legal and political thinking.

159

She traces the ways in which this anomaly of American law slowly mi-
grated from private law to constitutional law. Teaching that citizens did
not owe to others the affirmative duty to come to their assistance in mo-
ments of crisis, the no-duty-to-rescue rule taught lessons not only about
the narrow principles of tort law,1 60 such as the distinction between acts
and omissions as a matter of causation, but broader lessons about the re-
lationship of individualism to social responsibility.161

An important part of this larger discussion is Glendon’s review of the
lessons imparted by the Supreme Court case of DeShaney v. Winnebago

153 Ibid., 3-4.
154 Ibid., 4.
155 Ibid., 12-13.
156 Ibid., 12.

“I Ibid., 13.
158 “Like the words of the marriage ritual, they etch themselves on our memory.” Ibid.
159 Chap. 4, “The Missing Language of Responsibility,” 76-108.

160 Glendon, Rights Talk, 83.
161 See Glendon’s discussion of the case of Jackson v. City of Joliet, 715 E 2d 1200 (7th

Cir., 1983): 89. In that case, a federal court, influenced by the no-duty-to-rescue rule, de-

nied recovery to the families of two automobile accident victims where the suit had been

brought against a police officer who, having happened upon the accident scene, failed to

check for victims or summon assistance, such as paramedics or an ambulance. Citing

specifically Yania v. Bigan, 155 A.2d 343 (Pa. 1959), Judge Richard Posner announced in

Jackson that the Constitution was intended to safeguard negative liberties and was not

meant to provide protection for affirmative rights, even the right to be aided by an officer
of the law.

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County Department of Social Services. 162 DeShaney involved a tragic set
of facts: Joshua DeShaney was a ten-year-old boy who had been system-
atically abused by his father and was ultimately diagnosed with severe
brain trauma as a result of this abuse.163 Throughout the period he was
abused, officials of the County Department of Social Services stood by,
documenting the abuse but failing to take effective action even when
Joshua’s father failed to comply with conditions he agreed to as the result
of recommendations made by a “Child Protection Team” that had inves-
tigated conditions in Joshua’s home.164

Chief Justice William Rehnquist authored the majority opinion.
Sharply distinguishing between negative and affirmative rights and de-
claring that the “Due Process Clauses [of the Fifth and Fourteenth
Amendments] generally confer no affirmative right to governmental aid,
even where such aid may be necessary to secure life, liberty, or prop-
erty,’ 165 the Chief Justice’s opinion can be read very nearly as a constitu-
tionalization of the no-duty-to-rescue rule. 166 Although the County’s so-
cial service agency had commenced intervention in Joshua’s home life, it
was under no constitutional obligation to ensure a favorable outcome. It
had, in other words, no constitutionally cognizable duty to rescue Joshua
from his violent surroundings.

What makes this case relevant to our concerns is the method Mary Ann
Glendon used to draw lessons from it. She criticized Rehnquist’s opinion
less on its substance than on the errors it was likely to teach the Ameri-
can public.’ 67 Supreme Court opinions have a wide audience: not only
lawyers, but journalists, intellectual and social historians, and a large
number of literate lay persons now read leading Supreme Court opin-
ions. And these readers are likely to understand DeShaney to stand for
the proposition that there is a sharp separation between a public order,
where government is responsible for policing its own business, and a
world of private ordering, where “the weak [are] completely at the mercy
of the strong.”‘168 And by implying that the no-duty-to-rescue rule gov-

162 DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189
(1989).
163 Joshua suffered “a series of hemorrhages caused by traumatic injuries to the head

inflicted over a long period of time”. Ibid., 193.
164 Ibid., 192.
165 Ibid., 196.
166 Glendon, Rights Talk, 97.
167 Ibid., 94-97.
168 Ibid., 95.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 289

erns the government’s relationship to its citizens, “the DeShaney case
mis-educates the public about the American version of the welfare state,
and about the role of citizens in shaping and reshaping it.”‘ 16 9 DeShaney,
in other words, while perhaps correct as to its legal reasoning, is a failure
because of the lessons the larger American public may derive from it.

Transposed to marriage, Glendon’s methodology has much to offer us.
If legal opinions necessarily educate, what are the lessons to be learned
from the cases and material covered in this essay? The first, most obvi-
ous, lesson is the primacy of marriage in the ordering of society. Mar-
riage was so important that a whole series of divine invocations was con-
sidered necessary to explain it. Marriage was a part of the divine plan for
the world; it was a feature of the divine law; its particular attributes, such
as the levitical degrees, were a feature not only of the law of man but of
the law of God. Proper marital conduct was not only a matter of one’s re-
lationship with the state, but with the deity. Marriage, one can conclude,
was seen as supremely important to social well-being.

There were yet other lessons taught by these cases and materials. It can
safely be said that America in the nineteenth century was still governed
by a Protestant establishment, whose presence was felt defacto if not al-
ways de jure. Christianity was accepted as a source of the common law;
and judges and jurists were not shy about drawing from conventional
Christian sources to explain whole areas of law. 0 Christian, biblically-
grounded modes of discourse thus helped to cement this Protestant hege-
mony with respect to marriage law and transmit it forward in time, to the
next generation. And in a nation most of whose citizens were also Protes-
tant, this must have seemed like a natural mode of discourse. This Chris-
tian foundation, furthermore, was not something recent, made up by the
courts in response to the exigencies of current events, but had deep roots
in the distinctive legal tradition of medieval canon law particularly as
mediated through Anglicanism.

If the body of opinions and texts examined in this paper teaches one
lesson with respect to marriage and its centrality to society and faith, it
teaches another lesson with respect to the authority of the state. To speak
of divine law is to speak at the same time of a law placed above the pos-

169 Ibid., 97.

170 An important new study of some these themes is Michael V. Hernandez, “A Flawed

Foundation: Christianity’s Loss of Preeminent Influence on American Law,” Rutgers Law
Review 56 (2004) 625-710.

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itive enactments of the state. It was Peter, after all, who proclaimed to the
Sanhedrin “We must obey God rather than men.”17 1

Marriage, seen as a matter of divine or natural law, understood as a
matter of divine institution, explained as the product of divine command,
explicated by the Jesus of the New Testament as conferring deep and
solemn duties on its participants, necessarily stood to some extent be-
yond the state’s authority to harm, destroy, or alter. Marriage was not a
creation of the state. Its existence pre-dated the state. It was something
state authorities were charged with conserving. The judicial invocations
of divine law that accompanied so many domestic relations decisions can
be understood as reinforcing these propositions and commitments to
state officials from governors, to legislators, to administrators, all the
way to local justices of the peace and town clerks.

One can contrast the lessons these historical materials teach with the
lessons one might derive from a passage in Goodridge v. Department of
Public Health, the Massachusetts same-sex marriage case of 2003.172
About the relationship of marriage to the state, this Court wrote: “Simply
put, the government creates civil marriage. In Massachusetts, civil mar-
riage is, and since pre-Colonial days has been, precisely what its name
implies: a wholly secular institution.” 173 This statement, like the major-
ity opinion in DeShaney, mis-educates the public. As a description of the
historical reality this article has been discussing, Goodridge’s claim can
be seen to be patently false. Its temporal framework is bizarre. One liter-
ally cannot make sense of the assertion that civil marriage has been a cre-
ation of the state since “pre-Colonial days.” Surely, the Court cannot
mean to refer to the forms of marriage that prevailed among the Narra-
gansett Indians who greeted the first European settlers, although that is
what the Court must literally be understood to say.

The Goodridge Court’s description of marriage, furthermore, is erro-
neous on at least two other counts. The sharp distinction between “civil”
marriage and something else, which the Goodridge Court never names
but must presumably be religious marriage, similarly misrepresents the
early sources we have reviewed. The nineteenth-century American law
of domestic relations, even in Massachusetts, was heavily dependent

7I Acts 5:29.
172 Goodridge v. Department of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003).
171 Ibid., 321, 798 N.E.2d at 954.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 291

upon Christian sources, especially canonistic sources. This paper has re-
viewed a few of those sources. It is a distortion of the historical record to
call marriage “a wholly secular institution.”

It is wrong, finally, to assert, as a matter of historical record, that the
state creates civil marriage. As the evidence we have reviewed makes
clear, this is not the way the nineteenth-century mind understood the ori-
gin of marriage. Indeed, the forms of legal discourse we have been ex-
ploring, invocations of divine law or the law of God to explain particular
features of the law of marriage, were not unknown to Massachusetts.
Massachusetts jurists were not unlike their contemporaries in borrowing
from Christian understandings of marriage, especially as mediated
through the ecclesiastical courts, to explain the shape and content of their
domestic relations law. 1

74

Goodridge, in its own way, is thus at least as pernicious as the De-
Shaney opinion in its mis-education of the public. Its history lesson, re-
grettably, will not be confined to the practicing bar of Massachusetts.
Lawyers and literate lay people alike, all over the country, will under-
stand it to be a roughly accurate depiction of historical truth. In reality, it
is as flawed as DeShaney’s attempt to constitutionalize the no-duty-to-
rescue rule.

C. Law Has a Religious Dimension:

At the outset of this paper, I proposed a definition of religion borrowed
from John Noonan which had as its core the relationship of the believer
with the divine presence. 17 5 Harold Berman, in his book, The Interaction
of Law and Religion, has proposed a different definition that is also ap-
propriate for analyzing the relationship of religion and law.

176 Religion,
Berman writes:

174 See, e.g., Martin v. Commonwealth, I Mass. 347, 398 (1805) (addressing the obli-
gations of women married to British sympathizers during the Revolutionary War, this

opinion declared that by “they owed [a duty of obedience] to their husbands” “by the law

of God,” and were thus under no obligation to abandon them as a condition of retaining

property rights in Massachusetts); Sutton v. Warren, 51 Mass. 451, 452 (1845) (declaring
incestuous marriages invalid as “against the laws of God”); Pratt v. Pratt, 157 Mass. 503,

506 (1892) (declaring an intention to incorporate into Massachusetts divorce law the rules

governing “collusion, connivance, condonation or recrimination, all of which we have

adopted into our procedure from the canon and ecclesiastical law of England”).
175 See note 7.

176 Harold J. Berman, The Interaction of Law and Religion (Nashville, TN: Abingdon

Press, 1974).

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is not only a set of doctrines and exercises; it is people manifest-
ing a collective concern for the ultimate meaning and purpose of
life-it is a shared intuition of and commitment to transcendent
values. 177

Law, Berman continues, must necessarily partake of religious values,
understood in this broad, anthropological sense. Through the use of rit-
ual, through appeal to tradition and authority, through invocation of uni-
versal values, law attempts to concretize and apply a given society’s set
of beliefs about ultimate values. 178 Berman challenges those who would
view law in purely secular terms. The great fallacy of a purely secular ac-
count of the law is its abandonment of ultimate values: “The law of the
modem state, it is said, is not a reflection of any sense of ultimate mean-
ing and purpose in life; instead, its tasks are finite, material, imper-
sonal-to get things done, to make people act in certain ways.”‘179

Berman further characterizes this understanding of law as “instrumen-
talist.”‘ 180 The law-giver-whether legislator or judge-takes a narrow
view of those subject to the law. Persons, the law-giver surmises, will re-
spond in certain predictable ways to laws intended to appeal to widely-
held notions of cost/benefit analysis. Laws are tailored accordingly, to
place incentives for desirable conduct and to discourage the undesirable.
Such efforts, furthermore, always carry with them a sense of tentative-
ness: the law comes to be seen as “experimental;” its values, its norms,
its prohibitions and permissions, are seen as always subject to revision,
based on the latest fashionable economic or political theory of what so-
ciety should be about. 181

The problem with this sort of instrumentalism, in Berman’s estima-
tion, is its failure to conform with human nature. Instrumentalists gener-
ally assume that law gains its force through its threat of coercive force.18 2

This assumption has been part and parcel of modem legal positivism
since John Austin first formulated his command theory of law in the early
nineteenth century. Such a theory of law, however, runs afoul of the nat-
ural human tendency to obey law not because of the threats that accom-

177 Ibid., 24.
178 Ibid., 25.
179 Ibid., 26-27.

0 Ibid., 27.
181 Ibid., 27-28.
182 Ibid., 28.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 293

pany disobedience, but because of the belief that one thereby does some-
thing affirmatively good by obeying:

As psychological studies have now demonstrated, far more im-
portant than coercion in securing obedience to rules are such fac-
tors as trust, fairness, credibility, and affiliation.

183

The sense of trust, furthermore, is enhanced by the very nature of law:

Law itself, in all societies, encourages the belief in its own sanc-
tity. It puts forward its claim to obedience in ways that appeal not
only to the material, impersonal, finite, rational interests of the
people who are asked to observe it, but also to their faith in a
truth, ajustice that transcends social utility-in ways, that is, that
do not fit the image of secularism and instrumentalism presented
by the prevailing theory.

184

Berman concludes that instrumentalist understandings of law-
theories of law that rest, fundamentally, not on a shared sense of right and
wrong but only on second order pragmatic principles-will ultimately
prove unworkable. 185 To be successful, to command respect and alle-
giance, the law must embody what Berman terms “transrational” values,
including a sense of tradition and authority. Neither, Berman asserts, can
be explained exclusively in secular terms. Tradition necessarily carries a
religious dimension as mythic significance is ascribed to past events,

86

while invocations of authority usually carry with them some sense of
judgment about ultimate right and wrong. 1

87

This understanding of the deep interconnectedness of law and religion
helps to explain the survival of references to divine law and the law of

God in early American judicial thought. Appeals to rules ordained by
God, articulated in a world where ownership and knowledge of the King
James Bible was perhaps the single strongest common bond among per-
sons, can certainly be understood as an effort to inculcate in the populace
a deeply internalized sense of proper and improper marital conduct.

183 Ibid.

184 Ibid., 29. Berman adds, “Even Joseph Stalin had to reintroduce into Soviet law ele-

ments which would make his people believe in its inherent rightness-emotional ele-

ments, sacred elements; for otherwise the persuasiveness of Soviet law would have total-

ly vanished, and even Stalin could not rule solely by threat of force.” Ibid.
185 Berman, 30.
186 Ibid., 34.

187 Ibid., 34-35.

THE JURIST

Berman’s insights also reveal the deep incoherence of contemporary
philosophical liberalism, especially when applied to reform of the mar-
riage law to accommodate the same-sex marriage movement. One might
consider a recent essay by Linda McClain. 188 Her target was Congress-
woman Marilyn Musgrave of Colorado’s Fourth District, a Pentecostal
and a principal sponsor of an amendment to the United States Constitu-
tion that would have the effect of enshrining in fundamental law the
proposition that true marriage only exists between a male and female.
The particular focus of McClain’s criticism was Musgrave’s assertion,
made in defense of the amendment, that it was needed to preserve
“‘God’s created order.”” 189

McClain rejected the premise on which these statements rested: that
there is no tight boundary line separating religious from secular concep-
tions of marriage. Looking in part to Goodridge, McClain countered:

[I]n a pluralistic constitutional democracy, citizens owe each
other certain duties of civility and mutual respect concerning the
forms of argument they make. Thus, government’s interest in
defining, regulating, and supporting the institution of civil mar-
riage must be explained in terms of public reasons and political
(or public) values that are accessible to other citizens regardless
of whether they share each other’s religious convictions.1 90

McClain is far from alone in advancing such claims. William Es-
kridge, professor of law at Yale University and a leading advocate for

188 ” ‘God’s Created Order,’ Gender Complementarity, and the Federal Marriage
Amendment,” BYU Journal of Public Law 20 (2006) 313-343.

“‘ Ibid., 314 (quoting Marilyn Musgrave). In the 2006 congressional debate over
same-sex marriage Musgrave was not the only one to make such a claim. McClain also
identifies Congressman Steven King of Iowa and Mike Pence of Indiana, who made sim-
ilar claims. Ibid., 317-319. In her House testimony, Musgrave declared: “The self-evident
differences and complementary design of men and women are part of [the] created order.
We were created as male and female, and for this reason a man will leave his father and
mother and be joined with his wife, and the two shall become one in the mystical, spiritu-
al, and physical union we call ‘marriage.”‘ House Judiciary Committee, Subcommittee on
the Constitution, Hearing Testimony, May 13, 2004, 108th Congress (statement of Mari-
lyn Musgrave, Chairman). Her Senate testimony for the most part tracks closely her
House statement, although Musgrave added: “[M]arriage is a sacred institution, designed
by the Creator [as] the union of a man and a woman.” Senate Judiciary Committee Hear-
ing on Same-Sex Marriage, June 22, 2004 (2004 W.L. 1413039 (F.D.C.H.).

90 20 BYU J. Pub. L. at 328-329. See also McClain’s older essay, “The Relevance of
Religion to a Lawyer’s Work,” Fordham Law Review 66 (1998) 1241-1252.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 295

same-sex marriage, relies on a robust theory of philosophical liberalism
to argue that the Constitution was intended to create a liberal state ag-
nostic as to claims about fundamental goods or ends. 19′ Like McClain
and like many others in the field, Eskridge relies on claims about “public
reason” that have the effect of prohibiting in advance the possibility of
distinctively religious voices even entering the public square.’

92

The not-so-hidden danger in these claims is precisely the risk Berman
warned against-the replacement of norms that reflect deeply-held con-
victions of right and wrong with a series of second-order, instrumentalist
claims about the shape marriage law should take.

From a constitutional perspective, perhaps the most appropriate an-
swer is John Noonan’s response that the believer who relies on religious
belief to reach a particular public policy position does nothing different
from “any conscientious citizen or politician who consults the source of
truth he holds in highest regard.”’19 3 What is protected by the Constitu-
tion, in Noonan’s estimation, is the right all persons to participate in the
political process, not the right of the non-believer to be free of the an-
noyance of having to confront religious claims of truth.’ 94

Were this a longer study, we might develop this point. We should con-
tent ourselves with the observation that if marriage is religious, not nec-
essarily in a confessional but at least in a larger anthropological sense of
that word, so then is law. Law reform that seeks to de-sacralize marriage,
to make it subject to ordinary contract rules, to separate its religious di-
mension from its civil effects, will probably fail. Indeed, the crisis over
out-of-wedlock births, the levity with which the marital commitment is
taken, the easy availability of divorce, might all be seen as outgrowths of
this de-sacralization.

De-sacralization of the law, however, may carry even deeper conse-
quences. The separation of law from deeply-cherished beliefs about right

191 William N. Eskridge, Jr., Equality Practice: Civil Unions and the Future of Gay

Rights (New York and London: Routledge, 2002) 129-13 1.
192 Ibid., 129.
193 John T. Noonan, Jr., “The Bishops and the Ruling Class: The Moral Formation of

Public Policy,” in Religion, Science, and Public Policy, ed. Frank T. Birtel (New York:
Crossroad, 1987) 138, 141.
194 Noonan continues, “Every public policy is an imposition on some persons, some

groups. Pluralist democracy does not mean freedom from such impositions, but freedom
to participate in the process. The Church, through the actions of Catholics, is free to be a
participant.” Ibid.

THE JURIST

and wrong might lead to societal demoralization as the people become
alienated from the law.

Let us consider for a moment the issue of alienation. The concluding
pages of Alasdair Maclntyre’s After Virtue draw a stark picture of the role
alienation played in the collapse of the civil polity of the Western Roman
empire, as people turned their back on imperial rule:

A crucial turning point in that earlier history occurred when men
and women of good will turned aside from the task of shoring up
the Roman imperium and ceased to identify the continuation of
civility and moral community with the maintenance of that im-
perium. What they set themselves to achieve-often not recog-
nizing fully what they were doing-was the construction of new
forms of community within which the moral life could be sus-
tained …. 195

Where the state and its law fail, where it has grown so out of touch
with human needs and emotions that it ceases to command loyalty, one
might read Maclntyre as saying, then it falls to the people to build their
own communities responsive to their own values, independent of state
authority. The marriage debate may hold within it the seeds of this ex-
treme form of alienation from the realm.

IV Conclusion:

This paper has touched on themes drawn from legal history, anthro-
pology, and jurisprudence. If there is a common thread to this paper, it is
this: that the separation of marriage from religion, or from the state, is a
much more difficult task than it might appear at first blush. Marriage has
been associated, within the western tradition, for nearly two millennia,
with religious insight, particularly that drawn from or inspired by the
Jewish and Christian holy books collectively called “The Bible.” Much
of this paper has been concerned with exploring various aspects of the re-
lationship of this larger western tradition with the idiom of American do-
mestic relations law.

Even apart from this historically peculiar feature of the West, all mar-
riage has a religious dimension to it that is probably unavoidable. In all
societies, marriage is signified by some form of symbolic action or ex-

195 Alasdair Maclntyre, After Virtue, 2d ed. (Notre Dame, IN: Notre Dame University

Press, 1984) 263.

MARRIAGE: ITS RELATIONSHIP TO RELIGION, LAW, AND THE STATE 297

change; it reflects commitments not only by the individuals involved, but
by larger communities, whether they be family, church, locality, or some-
thing larger or smaller than these groups. Marriage is a commitment that
embraces not only the good of the parties, but points to something
larger-a given society’s sense of the ultimate.

The lessons that law-givers seek to inculcate in those subject to the
law, furthermore, are also important. Law teaches values-this is an in-
sight as true for the law of marriage as for any other branch of the law.
How society structures the laws governing coupling, commitment, child-
rearing, and other essential functions of the reproductive process teaches
values about these aspects of daily life. The current debate over the future
path of marriage is at least in part a struggle over the proper lessons to be
taught by the law.

Finally, law itself points to a larger substantive vision of the good. For
this reason, some, like Harold Berman, argue that the law itself has a re-
ligious dimension that we deny at the risk of imperiling the soundness of
a society’s legal order. And this religious dimension of law, this sense
that the law must embody some larger, more transcendent understanding
of right and wrong, also lies behind and animates much of the contem-
porary debate over marriage. Legislative or judicial attempts to sever the
traditional bonds among marriage, religion, and law, are, for these rea-
sons, doomed to failure, in either the short or the long term.

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