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Southwestern Law Review

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"Discriminating Gender: Legal, Medical, and Social Presumptions About Intersex and Transgender People” analyzes the significance of the binary-gender presumption in legal responses to intersex people and to transgender people. Both intersex and transgender status challenge familiar understandings of gender, sex, bodies, and personhood. Intersexuality challenges the cultural belief that that everyone can be, and should be, categorized as female or as male. And transgender status challenges the belief that gender and sex are always coincident and that they are established at a person’s birth. More fundamentally, differences in social and legal responses to both transgender people and to intersex people reflect the extent of the challenge that either group may pose to the widespread presumption that gender is binary. In fact, the binary-gender presumption conflicts with reality. About one percent of the population is born intersex (showing genital, chromosomal and/or endocrinal aspects of both genders), and about 0.5 percent of the population is transgender (identifying with a gender not reflected in physiology). "Discriminating Gender” examines the assumption that gender is binary in cases involving the right of transgender and/or intersex people to marry (until 2015, in the U.S.), to obtain state documents (e.g., passports, birth certificates, driver licenses) conforming to gender identity, and the right to use bathrooms and locker rooms or to join sports teams that conform with gender identity.

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