Sex Before the Law: Transgender Arguments under Title VII and Shifting Stases of Sex

Abstract

Until recently, transgender plaintiffs claiming sex discrimination were successful only when the discrimination was argued to be based on the plaintiff’s birth sex. Schroer v. Billington is often mistakenly understood to have been decided based on a more expansive understanding of sexed identity. Here, I call upon stasis theory to highlight how Schroer shifts the focus on sex away from sexed identities to structure, calling attention to how sex as system gives rise to discrimination. In so doing, Schroer ultimately refuses law’s responsibility for the maintenance of sex as system and locates the problem of sex with society.