Transgender Legal Advocacy: What Do Feminist Legal Theories Have to Offer?

The main question this article seeks to answer is: given all that feminist legal theory has done to help make the legal system more amenable to the needs and rights of women, what does feminism have to offer sex and gender non-conforming persons seeking redress before the law? How effective a tool is feminism in the endeavor to make the legal system more responsive to the social and legal needs of persons who do not fall neatly into the categories of biological male or female? In this paper I am specifically concerned with transgender individuals who seek redress for discrimination in the workplace under Title VII of the Civil Rights Act of 1964. For the most part these claims have proved unsuccessful because courts have by and large refused to recognize transgender discrimination as discrimination “because of sex.” Can feminist legal theory be a resource for reconstructing the normative understanding of “sex” in a way that could make the law in this area more responsive to trans needs? Also, in addition to doctrinal interventions, are there any practical interventions that can be informed by the ideas that legal feminism has to offer? In trying to answer these questions I look at several varieties of feminist theory to determine the extent to which they seek to trouble or question certain normative ideas concerning the immutability of sex and the potential their work has for disrupting how these normative ideas and assumptions affect judicial and decision making. My search leads to the conclusion that no feminist legal theory has explicitly proposed a pro-transgender theory of legal advocacy. However, several of these theories offer useful conceptual ideas as well as practical tools for imagining and constructing such an intervention.