Most challenges to state enforced conformity with gender norms are almost solely status-based equality claims. Given that a common term deployed by members of the trans community and in antidiscrimination laws is "gender identity and expression," situating such challenges in expression may, at first glance, appear to be little more than linguistic legerdemain. An understanding of gender as expressive, however, helps capture an often unarticulated, yet central aspect, of the harm enforced conformity inflicts on trans persons---compelled expression of the state's gender message over their profound objection. Consider governmental insistence that a trans student or employee present herself, through dress and grooming, in accordance with her sex assigned at birth. The state is enforcing a selective message, which this author refers to as "the ideology of the binary." Unsurprisingly, it reflects the prevailing view: there are two (and only two) distinct sexes with congruent gender identities, fixed by nature and immutably different. The focus of this Article is on compelled expression over an individual's objection, which is of particular concern given the state's role as enforcer. Not only does the state have sole authority to legally categorize people by sex, but it also uses those categories as the basis for distributing rights and goods, such as marriage and its associated benefits, over which it maintains a monopoly of power. The state likewise controls access to the countless protections that flow from the wide-ranging use of government identification in our private interactions, such as the ability to get a job, use a credit card, or interact with the public and government authorities without fear of harassment, discrimination, or violence. Case law, furthermore, reveals that state enforcement of gender norms over one's objection is inextricably intertwined with additional messages concerning the subordination of gender outgroups. This messaging has as its foci the dehumanization of trans people, the insistence on traditional gender roles for women, and the disapprobation of homosexuality. The Author focuses on expression because it offers the opportunity of more. In contrast to the most common jurisprudential vehicle--equality--expression may better reflect the complex and flourishing diversity of experiences that make up gender. In particular, while equality claims tend to rely almost solely on a medical model of gender identity, expression claims are also suited to non-medicalized claims by trans persons, especially those for whom dissent from traditional norms is integral to their gender identity.
18 Temp. Pol. & Civ. Rts. L. Rev. 465 (2009)