Gender Neutrality in the Courts

• In Event: 4271 - Legal Resistance

Abstract

Since the 1970s, the term gender neutral has been used as a tool of legal resistance in struggles ranging from gender discrimination to pronouns to public restrooms. To advance understanding of this key term in the law, we conduct quantitative and qualitative analyses of all Supreme Court (N=27) and Appellate Court cases (N=488) in which the term “gender neutral/neutrality,” “sex neutral/neutrality” or “sexually neutral/sexual neutrality” appear at least once. We find that the courts have defined gender neutrality narrowly to mean facial neutrality, rather than embracing a concept of genuine neutrality that considers background inequalities or disparate impact. Moreover, most cases in our sample consider traditional sex discrimination claims, most often from women plaintiffs and secondarily from men plaintiffs claiming benefits previously reserved for women. In contrast, our sample includes very few claims about discrimination on the basis of sexual orientation or gender identity. The upper courts have rarely allowed sex-based classifications but, in a few cases, have abrogated the principle of gender neutrality on the grounds that women and men are biologically different. We conclude that further and more far-reaching judicial application of the principle of gender neutrality could advance equality on the basis of gender, sexuality, and gender identity.

Authors

• Abigail C. Saguy, University of California-Los Angeles

• Juliet Williams, University of California-Los Angeles