T: appending transgender equal rights to gay, lesbian and bisexual equal rights.

• Author: Adler, Libby
• Position: Gender on the Frontiers: Confronting Intersectionalities

In recent years, the identity group of transgender persons has been cohering and bringing its concerns to the attention of progressive legal thinkers as well as to organs of government. In the domain of conventional anti-discrimination coverage, (1) the result has been a number of local ordinances, (2) a few state laws (3) and a modest number of victories in judicial settings. (4) In addition, advocates for transgender concerns have taken up family issues such as whether gender identity poses obstacles to child custody, (5) access to medical services associated with gender transition (6) and the processes for legally changing one's name (7) and gender. (8)

The law review literature in this area has taken off like a rocket. Much of the academic thought devoted to transgender issues has focused on the problem of judicial determinations of an individual's gender, (9) whether and how to gain coverage for gender identity under Title VII, (10) the advantages and pitfalls of a disability-rights framework that medicalizes trans identity, (11) issues specific to youth (especially youth in foster care and in the juvenile justice system), (12) prisoner classification and sex-segregation (13) and insurance coverage for gender-affirming care. (14) A few critically-inclined thinkers have focused on the power that formal and discretionary bureaucratic decisions have on trans people and on the limits of formal equality, though these voices are a bit lonely. (15)

Because law reform in this area is still nascent, the strategic choices that reformers make now could have lasting effects on both law and identity. As anyone close to the subject matter will attest, one choice appears well on its way to being made: "T" is being appended to "GLB," indicating a similarity, but not an identity, of interests between transgender persons and gays, lesbians and bisexuals. Politically, the spot adjacent to the "GLB" sexuality constituencies seems the obvious home for the trans constituency, though--as many trans advocates have noted--it presents the danger that trans issues will be neglected or even excluded by the relatively more powerful gay-identified constituency, or at least a sector thereof. (16)

Moreover, the alliance is analytically complex due to the foggy interrelationship between identity and desire. (17) That is, as trans advocates struggle to individuate from the sexuality constituencies, they can sometimes be heard to protest that gender regards who they are, rather than whom they want. (18) The line separating those facets of personality is a bit less pristine than such a formulation would allow, however, and the vast number of self-descriptions one encounters in the real world frustrates any such doctrines.

This Article will take up yet another concern raised by appending the T to the GLB, namely that the association between gender identity and sexual orientation seems to be contributing to an equal rights-based, identitarian strategy. As I have argued elsewhere, (19) this path has had under-acknowledged costs for members of sexuality and gender-based identity groups. This Article focuses its speculation on the costs that transgender constituencies could face and urges trans advocates to consider such costs as they make their reformist choices. The Article then highlights possible opportunities for reform that are not dependent on equal rights.

1. INDETERMINACY OF RIGHTS REASONING AND THE SUMMONING OF ANTAGONISTIC RIGHTS

   A recurring yet under-appreciated problem with rights argumentation, and with equality and anti-discrimination arguments in particular, is the problem of indeterminacy. This problem has been aired by legal scholars associated with Critical Legal Studies (CLS) (20) and it has a few features that are relevant here.

   One problem is epistemological. Any time a judge is charged with deciding how to "treat like cases alike," he or she must determine what constitutes likeness. Just about any two categories of people, things or phenomena have innumerable points of comparison so there must be--explicitly or not--a determination of which points of comparison are most relevant. For example, in the gay context, when a court decides whether a state law prohibiting marriage between two persons of the same sex violates the state constitution's equal protection clause, it must decide whether a same-sex couple is like a different-sex couple for purposes of marriage. If marriage simply "means" the union of one man and one woman, and if this definition is rendered the only sensible one by, say, the mechanics of procreation coupled with a natural law connection between marriage and procreation, then a same-sex couple is not similarly situated to a different-sex couple for purposes of marriage. If, however, the relevant points of comparison are love, commitment, interest in functioning in a social and economic partnership, capacity to raise (if not produce) children and so on, then the two kinds of couples are similarly situated. A restrictive state marriage law would then look like animus and violate equal protection. (21) The only way to decide which points of comparison are the relevant ones is to make a political choice. There is no epistemologically superior starting place.

   A similar difficulty afflicts numerous questions related to the equality of trans people. For example, in construing the term sex in an anti-discrimination statute such as Title VII, (22) nothing foundational tells us whether that term includes trans identity. A transgender identity can be conceptualized as a protected deviation from archaic expectations of maleness or femaleness (23) or it can be conceptualized as an independent category. (24) Neither conceptualization is, in some politically neutral sense, the correct one. (25)

   Even in the case of an anti-discrimination law that explicitly includes gender identity as a protected category, nothing about the inclusion of the category tells us, for example, which bathroom a trans person is legally entitled to use. If a judge construing such an anti-discrimination provision starts from the baseline that a male-identified person (of any birth sex, any anatomy, any chromosomal make-up, etc.) must be treated the same as other males, then a male-identified person is entitled to use the men's bathroom and anything less would constitute discrimination. If, however, the judge begins with the idea that the correct comparison is birth sex or genitalia, then we get a different outcome: it would not be discrimination to deny an anatomical female, for example, access to the men's room, even if that person was male-identified. The judge must choose a baseline and nothing in the general prohibition against discrimination or in the general requirement of equality provides one. There simply is no escape from the politics of it. (26)

   Another feature of the indeterminacy of rights is that co-existing rights can conflict. In the gay rights context this is evident from a case such as Romer, (27) in which the equal protection rights of gay tenants vied against the associational and religious rights of landlords who wished to exclude them. (28) The right against discrimination prevailed in that case, but it was defeated in Hurley, (29) in which the organizers of the Boston St. Patrick's Day Parade excluded a gay group from marching. Massachusetts has a statute that protects against discrimination on the basis of sexual orientation in public accommodations, (30) and the state's highest court found that the statute required the parade organizers to include the gay group. (31) The United States Supreme Court reversed the state court, however, on the grounds that the parade organizers had a superior expressive right under the first amendment to organize a parade that conveyed a "pro-family" message with which a visibly gay presence was deemed inconsistent. (32) The Court had to construe each competing right to choose between them and determine the outcome of the case. (33) The mere existence of a right, therefore, is not determinative where a competing right can be found. (34)

   The most perilous aspect of "conflict indeterminacy," however, and in my view the strongest reason that indeterminacy counsels against reflexively and uncritically turning to rights argumentation to advance the interests of trans people is that a right may not only lose out to some preexisting competing right, but might actually provoke the competing right--bring it into existence. If the associational right in Romer and Hurley is not strong enough evidence of this in the gay context, then perhaps the sudden emergence of a people's "right to vote" on the definition of marriage, (35) which the same-sex marriage campaign seems to have conjured into being, is.

   These battles are part of the culture war, which seems unlikely to be settled once and for all by a final and authoritative right that supersedes all others. The culture war is dynamic: the blues assert a right and the reds respond with their own right, each fueling the other. Once a right attains some degree of judicial recognition, I can think of only two ways to combat it. The first is a supermajoritarian act, i.e., a constitutional amendment, which, as the same-sex marriage campaign has demonstrated in twenty-nine states, is another hazard of rights argumentation. (36) The second is the generation of a competing fight or countervailing interest, forcing the prospect of foundationless judicial choosing, i.e., the problem of indeterminacy.

   In the trans context, this dynamic can already be discerned. In Goins, (37) a male-to-female trans employee of West Publishing wished to use the women's restroom closest to her work station. The employer instructed her not to use that restroom, ultimately resulting in her leaving her employment and filing an anti-discrimination lawsuit under Minnesota law, which she lost. (38) The employer stated that some of the other women employees complained that...