“No, this is not hopelessly utopian,” Kenji Yoshino told an audience on November 13 at the NYU College of Arts and Science's 2024 Irving R. Jurow Lecture, speaking about legal frameworks for protecting transgender and gender nonbinary people from discrimination in the United States and globally. Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law, is the director of NYU Law’s Meltzer Center for Diversity, Inclusion, and Belonging.
His lecture, titled “Trans Rights Unlimited,” examined existing federal laws, like Title VII and Title IX of the Civil Rights Act, that could be applied to provide critical legal protections from discrimination in employment and education to transgender and nonbinary Americans. He also discussed the seemingly paradoxical status of transgender individuals in some countries with harsh anti-LGBTQ laws who are nevertheless allowed to transition—a process he defined as “shunting.”
In societies with a high degree of sexual stereotyping, Yoshino said, “one strategy for dealing with a gender atypical person is to say, ‘We will let you transition, but then we never want to hear from you again.’” He asserted that such shunting is valued by societies with strict sexual stereotyping because the process “show[s] that [the] system is coherent and legitimate”—and he argued that shunting occurs in the US despite legal protections for LGBTQ citizens.
The US, he said, “is still deeply, deeply invested in the gender binary and sexual stereotyping. So we should…expect to see shunt theory operating within US trans[gender] jurisprudence.”
Discussing the context of Titles VII and IX, as well as important legal decisions made in the decades after their passage, Yoshino examined how those rulings have been influenced by shunting. In particular, he cited Price Waterhouse v. Hopkins, a US Supreme Court decision that found that discrimination against employees who don’t conform to gender stereotypes is a form of employment discrimination. Yoshino noted that while Price Waterhouse could apply to transgender and gender nonconforming employees, “the courts repeatedly predicate their protection on shunt theory—on whether or not the plaintiff has engaged in a transition in such a way that would lead the court to believe that they seamlessly flowed into the post-transition identity, which just happens to be one of the two binary sexes.”
Yoshino also argued that shunting still occurs after the 2020 Supreme Court decision in Bostock v. Clayton County, which held that Title VII bars employers from firing workers because they are gay or transgender—but which did not specifically address discrimination against nonbinary individuals.
“It suggests that something is going on about the endurance of the sexual stereotyping in our country, instantiating itself through this idea of shunting—[that] we’re just going to protect the individuals who persuasively shunt from one of our two binary categories to the other,” Yoshino said.
Yoshino concluded the lecture by reflecting on the end of affirmative action and his concerns for the legal status of LGBTQ and gender nonconforming and nonbinary individuals. “In some ways, this devastating moment for the LGBT community is also a moment where we can say, ‘What do we dream? What do we want? What are we fighting for in the end?’” he said. He called on the audience to reconsider the norm of tying the rights of transgender, gender-nonconforming, and nonbinary individuals to sexual binaries.
“What I want…is a world in which our gender does not precede our humanity,” Yoshino said.
Posted November 27, 2024