I recently published an essay responding to They, Them, and __Theirs, an article on non-binary inclusion. (Yes, the title is a reference to a The Prodigy song.) 

I’ll quote the beginning here: 

“Many gender-neutral restrooms and locker rooms are behind locked doors.  Not in the same sense that all bathroom doors are locked; rather, these spaces can be accessed only by either being lucky enough to slip in behind someone with authorization, or by pleading one’s case before some sort of decision maker—a literal gatekeeper.  In the most immediate sense, it’s the gym manager (“Can I use the temporary gender neutral facility?”), the information desk person (“Can you let me into the family restroom?”), or the key card provisioner (“I need access to the other floor because that’s where the bathroom I can use is. Please.”).

Other aspects of gender-neutral life can require a different, but intimately related, set of recitations to a more metaphorical set of gatekeepers.  Sometimes these pleas are heard by a therapist (“Can you give me a diagnosis so I can get this covered by my insurance?”), a doctor (“Please just let me have the anti-depressants so I don’t become another suicide statistic.”), or a judge (“Your honor, don’t make me publish my old name and new name in the newspaper in order to effectuate my name change.”).  Other times they are addressed to an HR manager (“My colleague called me by the wrong pronouns for the entire meeting and my boss didn’t correct him.”), a lawyer (“The new shift manager kept snickering about my pronoun pin and marked me as late even when I wasn’t…do you think I have a case?”), or an athletics organizing body (“Look, I just want to lift weights, okay? I don’t care which category I’m in.”).

It is the law that underlies these requests that Professor Jessica Clarke takes up in They, Them, and Theirs, her law review article on nonbinary people.  Rather than focusing on the moral claim that nonbinary people should have their genders taken seriously, Clarke takes up the logistical arguments that critics have mounted against nonbinary gender claims.  Most simply, she argues that including nonbinary people in existing social institutions would not require radical changes to the law.

Clarke’s thesis is not wrong.  She ably points out many ways in which nonbinary people can fit easily into existing systems and pushes back against common arguments, from the tyranny of grammar to the imagined threat of sexual predators in restrooms.  There is certainly a strategic argument to support the integration of nonbinary people into existing systems of state-sponsored gender.  But advocates for nonbinary people should not start with a goal of assimilation, even if that is where they end.  

You can read the rest at: https://blog.harvardlawreview.org/their-law/

Image from Vice’s Gender Spectrum Collection.