Can the Law Accommodate Recognizing Nonbinary Individuals?

In a memo recently leaked to The New York Times, the U.S. Department of Health and Human Services reportedly proposed that gender be determined “on a biological basis that is clear, grounded in science, objective and administrable.” This proposed universal definition of gender would be a binary one: either male or female, based solely on genitalia. Backlash to the proposal erupted, and over 1,600 scientists have since signed an open letter arguing that the proposal is “fundamentally inconsistent not only with science, but also with ethical practices, human rights, and basic dignity.” Instead of viewing gender as binary—and thus stripping nonbinary, transgender, and intersex individuals of their human rights and dignity—Jessica Clarke, professor at Vanderbilt University Law School, argues that the law can actually recognize nonbinary gender identities or, alternatively, abolish unnecessary sex classifications altogether. In a forthcoming…

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