Creating space within law for nonbinary genders

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About half a million Americans, roughly the population of Miami, currently describe their gender as nonbinary—neither man nor woman—and our regulatory framework needs to do a better job of including them, says Jessica Clarke, assistant professor of law at Vanderbilt Law School. In a paper recently published in the Harvard Law Review, "They, Them and Theirs," Clarke proposes a legal toolkit for those seeking reforms that would protect the rights of nonbinary people.

"My approach to this is not to say, 'Let's ban ,' or, 'We should give everyone a new set of categories to pick from and build law and policy around those categories instead,'" Clarke said. "I think we need to look at each context in which the law uses sex or gender categories and ask ourselves: What are the interests served by these categories? What are the alternatives? What would be the consequences of pursuing those alternatives? And what would be the best one for this or that context?"

Clarke writes that there is no single solution that works in all cases, but that civil rights law offers a number of options: Third-gender recognition, sex neutrality and thoughtful integration into a binary system when alternatives are not feasible.

Third-gender recognition

Third-gender recognition means making space for nonbinary individuals to identify themselves officially as something other than men or women. Driver's licenses and other identification documents, for example, could easily accommodate a nonbinary category. If the goal is to validate a person's , this is not a perfect solution, Clarke says, since it does not recognize the diversity of nonbinary genders., However, she says it would be a good first step toward a more inclusive system.

Sex neutrality

Sex neutrality is the practice of eliminating sex or gender identification altogether in contexts where it does not matter. For example, Clarke asserts that there is no pragmatic reason to designate single-occupancy restrooms by gender. She said that while gender is still a very important part of most people's identities, we should be willing to reconsider whether sorting people by sex or gender is absolutely necessary to the outcome we are trying to achieve with a rule or regulation.

Thoughtful integration into binary systems

Thoughtful integration means building in accommodations for nonbinary individuals in sex-segregated binary settings. For example, because there is not yet a critical mass of support for sex-desegregated sports, the solution may be to include nonbinary athletes within the preexisting binary system according to the rules that apply to other transgender athletes.

Clarke goes on to describe in more detail how these various strategies could be used in common settings, including schools, athletic teams, workplaces, restrooms, and health care facilities.

At the end of the day, Clarke says, her goals with this project are to encourage scholars and policymakers to take a hard look at the regulatory role that sex and gender play in law and society, and to put forth solutions for how to adjust our approach to commonly occurring contexts to make them more inclusive.

"I want people to take what nonbinary people say about their gender identities seriously and ask themselves, 'Why can't we respect nonbinary people just like we respect men and women?'" Clarke said. "The project of including nonbinary people may result in legal and social changes that benefit everyone. Even if people disagree about nonbinary gender identities for ideological reasons, they may find out there are pragmatic reasons to include nonbinary people in law and in our lives."

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Citation: Creating space within law for nonbinary genders (2019, January 30) retrieved 18 August 2019 from
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Jan 30, 2019
A non-starter when applied to sports, unless you want a total wipeout of everyone who is not XY

Jan 30, 2019
Rule of thumb: if your gender isn't based on a measurable fact of your person, and isn't discoverable by an independent observer without asking you - it's not real.

It may be arbitrary to assign genders based on looks or chromosomes, but at least it is a rule that can be followed by anyone once the rules are known. With "nonbinary" genders, the question of what the hell you are is only up to you, the rules of the game are defined solely by you, and everyone else has a difficult time respecting your whims.

That's why these people can't be taken seriously - any more than you can take seriously a person who says they're talking with Jesus. If nobody else can hear the voices, you're probably insane - why should everyone else play along to one person's private delusions?

If you think you're a combat helicopter, that's your problem. Holding it socially valid and taking it seriously just grants people a terrible opportunity to troll for a victim status, money and attention.

Jan 30, 2019

Jan 30, 2019
Dont worry. AI will soon be doing all our legal stuff for us and Im sure it will figure this all out. 'Course, we may not like the results but too bad.

Jan 30, 2019
E, your comment sounds reasonable from your viewpoint.
Why is your judgement of other peoples feelings be more valid then theirs?

Do you lack comprehension of their life experiences?
Trivializing their physical & psychological variations?
That only you are to be permitted a choice?

Sexual reproduction, is a crap-shoot. Especially with the low-quality of the damaged XY chromosomes. Patriarchal socialization will never admit to imperfection. Misogynists do not have the moral character for honest self-analysis.

Everyday, babies are born with a variety of physical imperfections. The Doctors know damn well that many fathers will not accept imperfections in their offspring.

So the Doctors get a little creative. A snip here, a slice there & no ones the wiser. Especially the hyper-critical relatives.

E, you want perfectly stamped-out barbie-dolls?
With no individuality or non-standard personality?
Robots or female clones by parthenogenesis.
Playing god are we?

Jan 30, 2019
Why is your judgement of other peoples feelings be more valid then theirs?

It's not a judgement on their feelings - it's a judgement on their demands on society and what practical point does it serve?

I can't do anything about how you feel inside. If you feel like I have to hop on one leg while reciting the Bhagavad Gita end to end, the question becomes "Why?"

If we say that I have to because that's how you feel I must, then we can demand anything - and since nobody else can check what you actually feel like, you can claim anything you want - it's not a reasonable way to decide what everyone should be doing. It's impossible not to "misgender" or "disrespect" a person of who is allowed to change their "gender" arbitrarily and not tell anyone - until they want to make someone jump to their fiddle.

The only practical purpose it serves is to enable professional martyrs.

Jan 30, 2019
What I mean is, if you want to be "other gender that cannot be determined without asking me", you pretty much have to tattoo it to your forehead - otherwise people can never know how to properly interact with you and you can always claim you're being "oppressed", i.e demand some form of compensation for the transgression because your feelings have been hurt.

E, you want perfectly stamped-out barbie-dolls?
With no individuality or non-standard personality?

If you piss into the wind, you get what you aim for. That's not a judgement - merely an observation.

Jan 30, 2019
Ultimately, when people talk about gender being a social construct, we tend to forget that it takes the society to construct - not just some individuals. If you want to change it, you have to involve the society, not just you, and that means asking everybody else to confirm your opinion.

If you decide to act alone, you reject the society and cannot logically appeal to the social construct argument anymore: in granting yourself the power to decide, you either claim yourself the status of a god on earth, or cause a paradox where you grant everyone else the right to reject your claims on the same grounds that you grant yourself: just because they feel like it.

So what we're seeing here is people asking "Do you accept if I define myself as X?" - without providing a compelling reason as to why. Only, they're doing it in the format of "We must do this or else!"

Well, else what? You'll feel bad? That happens any time you don't get what you want.

Jan 30, 2019
What I mean is, if you want to be "other gender that cannot be determined without asking me", you pretty much have to tattoo it to your forehead - otherwise people can never know how to properly interact with you

There's a whole lot of presumption here. Maybe you should ask first whether or not the person you're talking to subscribes to or is particularly interested in re-enacting the subculture of outmoded and anachronistic social norms that normalize a particular set of behaviors associated with binary and cisgender identity. We don't live in that world, we're not going to. This is the twenty-first century, after all, and we and much of the world and culture itself have moved on, and there's no credible or actual authority who may make demands for some other result, be that political, religious, or otherwise.

The true problem is that some still believe there's an option to go on living like it is 1855 and nothing under the sun changes, but that world has expired.

Jan 31, 2019
Well. E. your comments sound like a bully's plea for understanding?

Reflecting your internal struggle to come to terms with either yourself or someone you know & care about?

Which do you fear more?
That you will be blamed Shunned? If you fail to keep this person concealed?
Or do you fear that bigots will viciously attack this person you care about?

You proclaim your duty to deny Civil Rights, Civil Protections from persecution.
Because acknowledging their Humanity might make you feel uncomfortable.

So how do you intend to deal with the vagaries of human biological reproduction?
Require that everyone be tested & evaluated by your Rules of Proper Social Standards?

Then, for those who fail your requirements?

Since you deny others their Humanity? Why should I accord you the honor of permitting you to live in my society?

Your arguments define you,
to me,
as subhuman
& contributing nothing useful to civilization.

Careful what you wish for...

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