Works in Progress

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“Medical Diagnosis, Not Sex or Gender Identity”: Transgender Equality and the Neutral Application Problem

Defendants in U.S. trans equality cases now standardly argue that it is not conceptually possible for discriminatory legislation targeting transgender people to violate constitutional guarantees of gender equality, because such legislation equally applies to all transgender persons regardless of gender. In fact, many have gone further to argue that anti-trans legislation cannot even be said to target transgender people specifically, as the discrimination can be easily redescribed as applying to only persons diagnosed with gender dysphoria, only persons seeking gender-affirming care—but not trans persons as a class. Increasingly, courts are finding this neutral application defense persuasive, and even those sympathetic to trans plaintiffs have responded in ways that further essentialize gender and pathologize trans people. This essay uncovers the social metaphysics and political philosophy implicit in mainstream gender equality law that make the neutral application defense possible, and in so doing, develops and defends the first trans feminist alternative. (handout)

“Pregnant Persons as a Gender Category: A Trans Feminist Analysis of Pregnancy Discrimination”

How should we make sense of pregnancy discrimination as a form of sex discrimination? In a striking 1974 case, Geduldig v. Aiello, the U.S. Supreme Court has answered that we simply cannot. Pregnancy discrimination does not constitute sex discrimination, the 6–3 Court claims, because it implicates only a gender-neutral line between pregnant women and nonpregnant persons, not the gender line between women and men. Unfortunately, feminist philosophers of law have too often responded by doubling down on an awkwardly cissexist conception of gender, identifying the sex discrimination in the “direct” relation that pregnancy is thought to bear on womanhood and thus sex. This essay aims to develop a trans feminist alternative. I argue that pregnancy discrimination is based on sex not because pregnancy is in one way or another distinctive of women as a gender, but because pregnant persons make up a gender category of their own. On this account, then, pregnancy discrimination comes out as a form of sex discrimination directly and immediately, not by way of womanhood. (handout)

“On Our Own Terms: Trans Women Crafting the Meaning of ‘Woman’”

Leading philosophical accounts of “woman” follow what I consider a top-down approach: they begin with what being a woman means to cis women within dominant cultural spaces and social relations, and then struggle to apply and extend that analysis to trans women. Instead of fitting trans women awkwardly into a top-down analysis that wasn’t built for us in the first place, this essay hopes to pursue a trans feminist alternative—a bottom-up approach that aims to take up trans women’s own interpretation of our richly and beautifully varied bodies on our own terms. On such a bottom-up analysis, “woman” means, and properly means, what trans feminism, not the dominant cisheterosexist society, makes of it. (handout)

Taking Gender Seriously: Transgender Equality as Gender Equality

Transgender equality constitutes a pressing issue of gender equality. Surprisingly, however, neither philosophy nor law has conceptualized transgender equality meaningfully in gender equality terms. This essay develops and defends a trans feminist account that finally does. I start with the positive project of articulating this trans feminist account by distinguishing it from two leading analyses of transgender discrimination in U.S. law. I argue that transgender equality is gender equality not because it has to do with sex understood as biology or sex stereotypes understood as the social roles and expectations of our assigned sex, but because transgender equality means the equality of persons systematically disadvantaged by the social meaning of our bodies being interpreted as trans—the equality of trans persons, where trans persons make up a gender category for feminist analytical purposes. I then consider a gender-neutral, autonomy-based alternative currently popular in trans philosophy. The gender-neutral alternative fails, I conclude, precisely because it does not take the gender in transgender equality seriously.