Gender Essentialism and American Law: Why and How to Sever the Connection

Gender Essentialism & American Law --
 
http://djglp.law.duke.edu/article/gender-essentialism-and-american-law-bell-vol23-iss2/

Here is another monograph from Duke Law: Duke Journal of Gender Law & Policy

Gender Essentialism and American Law: Why and How to Sever the Connection

by Melina Constantine Bell
Click here for a PDF file of this article

Abstract

American law presumes that all persons are born either female or male, and rests a surprising number of legal entitlements on this presumption. Persons’ legal rights to express their identity at work, to use public accommodations, and to retain legal parenthood status with respect to their children may all depend on whether they are female or male. Yet we, as individuals, generally have no choice regarding whether we are legally designated female or male, just as people had no choice as to whether they were designated “colored” or “white” under past racial discrimination schemes. The American legal system plays a significant role in the construction, maintenance, and coercive enforcement of the binary gender system that requires people to conform their identities in distorting ways to be included politically. By sustaining the gender system, legal institutions unnecessarily undermine human well-being, and unjustly and disrespectfully constrain individual liberty. The United States and state governments should re-examine laws that use sex or gender as a category by adapting the Law Commission of Canada’s methodology in Beyond Conjugality. In this fashion, American law can begin to move gradually away from the creation, maintenance, and enforcement of the gender system.

Publication Citation

Melina Constantine Bell, Gender Essentialism and American Law: Why and How to Sever the Connection, 23 Duke Journal of Gender Law & Policy 163-221 (2016)
Available at: http://scholarship.law.duke.edu/djglp/vol23/iss2/2

This monograph is heavy wading. The author compares legal reasoning and SCOTUS opinion, citing quotations from Justices and SCOTUS decisions.

We found it useful to read with a notepad at hand, note cases cited, principal holding.