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, 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 Has- day, Aziz Huq, Alex Iantaffi, 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 Pub- lic Law Workshop, the Institute 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. © 2020 Jessica A. Clarke. All rights reserved. 1 2 T HE D UKEMINIER A WA R D S 2020 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 nonbi- nary gender rights. It argues that the law can recognize nonbinary gender identities, or eliminate unnecessary legal sex classifications, using familiar civil rights concepts. Table of Contents Introduction .................................................................................................3 I. Nonbinary Gender ...........................................................................12 A. The Diversity of Nonbinary Gender Identities .........................13 B. Reasons for Bias Against Nonbinary People ............................ 18 C. Convergences and Divergences With Other Rights Struggles ..23 1. Feminist Arguments ...............................................................23 2. Transgender Rights ................................................................30 3. Sexual Orientation .................................................................34 4. Intersex Variations .................................................................37 5. Antiracist and Postcolonial Struggles ..................................40 II. A Contextual Approach to Nonbinary Gender Rights............42 A. Against Universal Definitions of Sex and Gender ....................43 B. Regulatory Models for Nonbinary Gender Rights ...................46 1. Third-Gender Recognition ...................................................46 2. Sex or Gender Neutrality ......................................................50 3. Integration into Binary Sex or Gender Regulation ...........55 III. Legal Interests in Binary Sex or Gender? .................................55 A. Identification ................................................................................57 B. Antidiscrimination Rules ............................................................61 1. Data Collection and Affirmative Action .............................62 2. Pregnancy Protections ...........................................................64 3. Misgendering and Pronouns .................................................67 C. Sex-Specific Roles and Programs ............................................... 74 1. Education ................................................................................ 74 2. Athletics ..................................................................................77 3. Workplaces ..............................................................................86 a. The BFOQ Defense ..........................................................86 b. Dress Codes .......................................................................89 c. Physical Standards .............................................................90 D. Sex-Segregated Spaces .................................................................92 1. Restrooms and Changing Facilities ......................................92 T HEY , T HEM , AND T HEIRS 3 2. Housing ...................................................................................95 E. Health Care ..................................................................................99 Conclusion ................................................................................................102 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 12, I was the only person on my football team without a penis. And today at 36, I can wield a chainsaw 50 feet up a tree, and I’m also really a soft sensitive artist type. 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. 1 in 100 people have bodies that differ from standard male or female. And there are non-binary folks who do have genitalia that is con- sidered 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 Mitchell1 Introduction With stunning speed, nonbinary gender identities have gone from obscurity to prominence in American public life. The use of gender-neu- tral pronouns such as “they, them, and theirs” to describe an individual person is growing in acceptance.2 “All gender” restrooms are appearing 1. Gender Identity: Female, Male, or Nonbinary: Hearing on S.B. 179 Before the Assemb. Standing Comm. on Judiciary, 2017–2018 Leg., Reg. Sess. (Cal. 2017) [here- inafter Cal. Assemb. Judiciary Hearing] (statement of Carly Mitchell), https://ca.digit- aldemocracy.org/hearing/53965?startTime=705&vid=55910b927084f97bc382c39bf0e- cade2 [https://perma.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 pro- noun. 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, 10:37 AM), https://www.hollywoodreporter.com/news/ super-bowl-coca-cola-represents-binary-ad-1081767 [https://perma.cc/JJ3B-4ZWD] (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 4 T HE D UKEMINIER A WA R D S 2020 around the country.3 And an increasing number of U.S. jurisdictions are recognizing a third-gender category. In June 2016, an Oregon court became the first U.S. court to officially recognize nonbinary gender iden- tity.4 In October 2017, California passed its Gender