Because of Intersex: Intersexuality, Title VII, and the Reality of Discrimination “Because of… [Perceived] Sex”Posted in Articles, Law, Media Archive, Politics/Public Policy, Social Science on 2011-11-25 05:50Z by Steven |
New York University Law Review of Law & Social Change
Volume 34, Issue 1 (2010)
pages 55-121
Ilana Gelfman, Skadden Fellow
Greater Boston Legal Services
The federal doctrine of sex discrimination in employment depends on the underlying yet unstated assumption that sex is binary: one is either a man or a woman, and there is no other possibility. The existence of intersex individuals challenges this assumption. This article asks how Title VII doctrine can be applied to intersex employees. In answering, the Article considers (1) the ramifications of the ever-developing definition of “because of . . . sex” in Title VII jurisprudence as applied to sexual minorities and (2) the implications of Title VII doctrine regarding mixedrace individuals for our understanding of how the law treats (and should treat) individuals “in between” the categories. The article moves beyond previous work, which suggests that intersex individuals be protected as a third sex category under Title VII, because that work only reinforces the exact sex categorizations that should be undermined by any serious examination of intersexuality. Instead, the article proposes a new model for protection against sex discrimination in employment—that of discrimination “because of perceived sex.”
Table of Contents
- ABSTRACT
- INTRODUCTION
- I. TITLE VII AND INTERSEX INDIVIDUALS: THE CONFLICT BETWEEN DOCTRINE AND REALITY
- A. Title VII’s Binary Conception of Sex
- B. Intersexuality Challenges the Binary
- C. A Conflict Between Doctrine and Reality
- II. IN SEARCH OF A DEFINITION: “BECAUSE OF…SEX” AND SEXUAL MINORITIES
- A. The First Generation: The “Plain Meaning” of Sex
- B. The Second Generation: Sex Stereotyping
- C. The Third Generation: Discrimination Against Transgender Individuals
- D. Moving Forward: Implications for Intersex Individuals
- III. TROUBLE WITH CATEGORIES: ANTI-DISCRIMINATION LAW AND MULTIRACIAL PLAINTIFFS
- A. A Brief History: Law and the Multiracial Individual
- B. Federal Anti-discrimination Law and the Multiracial Plaintiff
- C. “In Between” the Categories: Multiracial and Intersex Plaintiffs Compared
- IV. DOCTRINAL POSSIBILITIES: CATEGORIZING INTERSEX INDIVIDUALS FOR THEIR OWN PROTECTION
- A. Why Protect Intersex Individuals at All?
- B. Maintaining the Traditional Categories of Male and Female
- C. Adding a Third Category: Acknowledging Intersexuality
- V. RECONCEPTUALIZING SEX DISCRIMINATION: PERCEIVED SEX
- A. What Is Perceived Sex?
- B. Application of the Doctrine
- CONCLUSION
Read the entire essay here.