LIBBY ADLER

ILLUSTRATION: LINO

Winter 2006 | Faculty Deliberations

Defying Definitions

By Libby Adler '94

IMAGINE YOUR FIRST DAY at a new job. You are summoned by human resources. Your coworkers are unhappy about your presence in the women’s restroom, complaining that you are creating a hostile work environment for them. This is what happened to Julienne Goins, a male-to-female transsexual who lost her anti-discrimination claim against her employer, the publisher West Group, in the Supreme Court of Minnesota. Though Goins had been taking hormones and presenting herself as female for years, and though a Texas court had granted her an official name and gender change, these self-appointed gatekeepers wanted to know what was beneath her skirt.  

Most people probably have given little thought to the number of contexts in which we are categorized by gender. Periodically, we all have to check a box on a form stating whether we are male or female, or choose to enter the men’s or women’s restroom, but if one only has to “state” or to “choose,” and never has to prove the statement or defend the choice, the obsessive categorization can go unnoticed.

To those who have transitioned from one gender to the other, however, the pervasiveness of gender categories could hardly be more evident. Gender turns out to be central to even the most mundane of regulatory schemes.

For example, Congress recently passed the Real ID Act to guard against terrorists taking advantage of the multiplicity of state norms governing the authenticity of drivers’ licenses. The act imposes uniform requirements on states that want their IDs to be valid for federal purposes, presumably including airport security checks and eligibility for benefits.

Such a law sounds alarms for transgender advocates. As states develop new practices to conform to various federal requirements, will those that once permitted name and gender changes on licenses tighten their policies? Who will have access to the documentation underlying such changes?

According to the National Center for Transgender Equality, 68 US jurisdictions, including five states, have enacted legislation protecting transgender people against discrimination. Another five states (including Massachusetts) and the District of Columbia have judicially or administratively applied anti-discrimination laws to prohibit discrimination on the basis of gender identity. A hallmark of the movement for transgender equality is that, unlike advances made toward racial equality during the civil rights era, advances have come primarily at the local level. A group led by Northeastern law graduates, for example, was responsible for lobbying the Boston City Council to adopt an anti-discrimination ordinance in 2002.

Where explicit statutory pro-tection is unavailable, however, advocates must make difficult choices, such as whether to seek protection under provisions outlawing discrimination based on sex, sexual orientation or disability (this last category because sex reassignment is considered a “treatment” for “Gender Identity Disorder,” or the sense that one’s biological sex is inconsistent with one’s gender identity).

But simple anti-discrimination measures will not be sufficient. As long as everything from military service to marriage to public benefits to prison regulations relies on the stability and provability of gender, transgender people will be in a struggle for equality.

Professor Libby Adler teaches Sexuality, Gender and the Law, and has published and lectured extensively in the field. She is a coeditor of the forthcoming edition of the casebook Women and the Law (Foundation Press, 2007).