In recent years, the identity group of transgender persons has been cohering and bringing its concerns to the attention of progressive legal thinkers as well as to organs of government. In the domain of conventional anti-discrimination coverage, (1) the result has been a number of local ordinances, (2) a few state laws (3) and a modest number of victories in judicial settings. (4) In addition, advocates for transgender concerns have taken up family issues such as whether gender identity poses obstacles to child custody, (5) access to medical services associated with gender transition (6) and the processes for legally changing one's name (7) and gender. (8)
The law review literature in this area has taken off like a rocket. Much of the academic thought devoted to transgender issues has focused on the problem of judicial determinations of an individual's gender, (9) whether and how to gain coverage for gender identity under Title VII, (10) the advantages and pitfalls of a disability-rights framework that medicalizes trans identity, (11) issues specific to youth (especially youth in foster care and in the juvenile justice system), (12) prisoner classification and sex-segregation (13) and insurance coverage for gender-affirming care. (14) A few critically-inclined thinkers have focused on the power that formal and discretionary bureaucratic decisions have on trans people and on the limits of formal equality, though these voices are a bit lonely. (15)
Because law reform in this area is still nascent, the strategic choices that reformers make now could have lasting effects on both law and identity. As anyone close to the subject matter will attest, one choice appears well on its way to being made: "T" is being appended to "GLB," indicating a similarity, but not an identity, of interests between transgender persons and gays, lesbians and bisexuals. Politically, the spot adjacent to the "GLB" sexuality constituencies seems the obvious home for the trans constituency, though--as many trans advocates have noted--it presents the danger that trans issues will be neglected or even excluded by the relatively more powerful gay-identified constituency, or at least a sector thereof. (16)
Moreover, the alliance is analytically complex due to the foggy interrelationship between identity and desire. (17) That is, as trans advocates struggle to individuate from the sexuality constituencies, they can sometimes be heard to protest that gender regards who they are, rather than whom they want. (18) The line separating those facets of personality is a bit less pristine than such a formulation would allow, however, and the vast number of self-descriptions one encounters in the real world frustrates any such doctrines.
This Article will take up yet another concern raised by appending the T to the GLB, namely that the association between gender identity and sexual orientation seems to be contributing to an equal rights-based, identitarian strategy. As I have argued elsewhere, (19) this path has had under-acknowledged costs for members of sexuality and gender-based identity groups. This Article focuses its speculation on the costs that transgender constituencies could face and urges trans advocates to consider such costs as they make their reformist choices. The Article then highlights possible opportunities for reform that are not dependent on equal rights.
I. INDETERMINACY OF RIGHTS REASONING AND THE SUMMONING OF ANTAGONISTIC RIGHTS
A recurring yet under-appreciated problem with rights argumentation, and with equality and anti-discrimination arguments in particular, is the problem of indeterminacy. This problem has been aired by legal scholars associated with Critical Legal Studies (CLS) (20) and it has a few features that are relevant here.
One problem is epistemological. Any time a judge is charged with deciding how to "treat like cases alike," he or she must determine what constitutes likeness. …