July 8, 2012

Sex matters.

These are the wise words of Ilona Turner, Legal Director of the Transgender Law Center, from her 2007 law review article entitled Sex Stereotyping Per Se: Transgender Employees and Title VII (95 Cal. L. Rev. 561 (2007))I must admit, I whole-heartedly agree.

Just as it is inaccurate to use “gender identity” as a replacement for sex, homosexuality and gender non-conformity–though both violations of heteronormative maxims[i]–are not the same. A person may be homosexual, but gender conforming. Or she may be gender non-conforming, but heterosexual. These characteristics often co-exist, but they are in no way causally related or interdependent. Among other differences, one is a private sexual preference that must be disclosed (see: the proverbial closet); the other manifests externally and is publicly observable.

Unfortunately, trans activists have taken a clumsy and consistently overbroad but underinclusive legal approach to addressing discrimination faced by gender non-conforming…

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