They, Them, and Theirs*
ARTICLE AWARDS WINNERS They, Them, and Theirs* JESSICA A. CLARKE** Abstract Nonbinary gender identities have quickly gone from obscurity to prominence in American public life, with growing acceptance of gen- der-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. Femi- nist legal reformers have long argued that discrimination on the basis of gender nonconformity—in other words, discrimination against men per- ceived as feminine or women perceived as masculine—is a harmful type of sex discrimination that the law should redress. But the idea of nonbi- nary 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 * Originally published in the Harvard Law Review. This piece has been repro- duced as originally published. With the exception of this attribution note and updated internal cross-references throughout, the Dukeminier Awards Journal editorial board has not edited this piece in any way, including reviewing citations for accuracy or oth- erwise ensuring that they conform to any particular style of citation. ** Professor of Law, Vanderbilt University Law School. Thanks to Toby Adams, Bradley Areheart, Genny Beemyn, Stephanie Bornstein, Mary Bryson, Erin Buzuvis,
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