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I. OUTSIDERS INSIDE
A discussion that examines the law's relationship to transgender, intersex, and gender variant people fits very well with this year's LatCrit theme, "Outsiders Inside." 1 A discussion that uses a critical gender lens to build a strategy for American policy-making for gender justice fits even better. I want to introduce and contribute to the "transformative gender law" discussion, which, I believe, embodies the spirit of this year's conference theme as well as our panel's theme, "New Ideas in Sexuality and Gender Law."
This lively discussion among feminist/queer advocates and critical scholars examines two fundamental questions about law and society: what is gender, and how is the current legal regime responsive to gender? A small but growing minority, including myself, believes that the "formal equality" legal regime has become incoherent and that we ought to proactively construct an alternative that better delivers justice in a new civil rights era.
II. CONTEXT FOR THE TRANSFORMATIVE GENDER LAW DISCUSSION
The transformative gender law discussion centers on gender outlaws. Gender outlaws are individuals who break social expectations about how to exist as a man or a woman.2 Interestingly, no one conforms to the plethora of existing gender norms all of the time, and yet, in due course, its recursive nature actually facilitates non-conformity.3 It is this tight tension-even contradiction-between permissible and impermissible deviation that inspires gender outsiders to analogize gender to performance.4
Performance theory explains gender as the expression of a set of assigned characteristics, designated feminine or masculine, which define "female" or "male" performance. The unity of a person's performative experience constructs our "male" or "female" identities.5 Some individuals, however, refuse their assigned roles or go off-script, choosing instead to play outside of their "intelligible" performance.6 Performance theory, originally conceived as a feminist theory, animates many social theories today on gender, including critical gender legal studies.
Some critical gender theorists have confronted the "formal equality" model's inability to serve transgender justice based on modern gender frameworks like performance theory.7 Of interest are the unique equal protection issues raised by recent transgender cases. Some transgender litigants have brought successful sex-based workplace discrimination claims.8 Critical scholars argue, however, that this rubric excludes those litigants who are unwilling to choose a female/male identity or those who face...