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Glazer & Kramer on Transgendered Plaintiffs

By Lawrence Solum

Elizabeth M. Glazer (Hofstra University - School of Law) & Zachary A. Kramer (Penn State University--Dickinson School of Law) have posted Trans Fat on SSRN. Here is the abstract:

In her book, Fat Rights: Dilemmas of Difference and Personhood, Professor Anna Kirkland uses fat discrimination as a case study to examine the ways in which we talk about difference in antidiscrimination law. She argues that the proper way to frame questions of difference in antidiscrimination is not in terms of protected traits or categories, but rather in terms of what she calls "logics of personhood." The logics of personhood are narratives that enable us to talk about which differences matter in a given discrimination case. In other words, they are ways of talking about what happens when people do or do not have rights, as well as whether certain people should be protected by antidiscrimination law. After applying the logics to the case of fat discrimination, Kirkland joins a growing community of scholars seeking to transcend antidiscrimination law's categories. By identifying in the logics of personhood the presumptions that lay beneath the surface of antidiscrimination law, Kirkland creates an entirely new way to talk about differences among people.

In this Book Review, we extend Professor Kirkland's discussion of fat plaintiffs to a discussion of transgender plaintiffs. Much like fat plaintiffs, transgender plaintiffs' only hope of articulating actionable discrimination claims is to map their claims onto existing antidiscrimination norms. As Kirkland demonstrates in Fat Rights, fat plaintiffs must cast themselves as disabled in order to state an actionable discrimination claims. And as we demonstrate in this Book Review, transgender plaintiffs must cast themselves as gender-nonconformists in order to state actionable claims. While both fat and transgender employees may be willing to negotiate their identities to win lawsuits against their discriminatory employers, the purpose of this Book Review is to ask whether they should have to. We use Kirkland's logics of personhood to demonstrate that fat plaintiffs and transgender plaintiffs share a common frustration with respect to antidiscrimination law's protected categories, namely, that antidiscrimination law sees both fat people and transgender people differently from how they see themselves. And we argue further that this is a significant harm to a plaintiff's dignity and that antidiscrimination law should take into consideration such dignitary harms.

Full post as published by Legal Theory Blog on February 09, 2009 (boomark / email).