Running from the Gender Police: Reconceptualizing Gender to Ensure Protection for Non-Binary People

Non-binary people who are discriminated against at work or school are in a unique and demoralizing position. Not only have some courts expressed reluctance to use existing antidiscrimination law to protect plaintiffs who are discriminated against based on their gender identity and not simply because they are men or women, in most states non-binary genders are not legally recognized. I argue that a fundamental right to self-identification grounded in the Due Process Clause of the Fourteenth Amendment would provide non-binary plaintiffs with the ability to assert their gender in court and have that assertion carry legal weight, regardless of how friendly the Court is to queer rights issues. I argue that a fundamental right to selfidentification would require courts to give the same wide degree of deference to a plaintiff’s self-identification of their gender as they do to a plaintiff’s self-identification of their religious beliefs. This legal framework would prohibit courts from policing the gender of the parties before them and allow them only to assess whether the plaintiff’s gender-related beliefs are sincerely held. Such a legal framework would allow non-binary plaintiffs to bring claims under federal anti-discrimination law without worrying that the Court will refuse to recognize their gender as valid.