The Author observes that sex and sexual orientation equality jurisprudence is premised upon the traditional understanding of "sex" as determined by anatomy at birth. The presumption typically following from this reduction of sex to anatomy is the notion that certain gendered attributes are inherent in biological male- or femaleness. The Author asserts that these erroneous and unduly narrow views significantly hamper courts' ability to address the core of sex and sexual orientation discrimination-hostility based on failure to conform to conventional gender norms. Surveying workplace, public accommodation, asylum, marriage, and custody cases, Flynn explains how conventional jurisprudence fails a wide array of persons. Looking to the burgeoning transgender case law, the Author demonstrates how individuals ranging from working women, gay men and lesbians, and stay-at-home dads can benefit from a jurisprudence that adopts more accurate and multifaceted understandings of sex and gender.
101 Colum. L. Rev 392 (2001)