Queer: Litigating Gender Non-Conformity

Section I of this article provides background information on the complexity of gender identity. This section addresses some of the different terminology used by members of the LGBTQ community to describe their gender identity, including the relatively well-known term “nonbinary” and continuing through to the less concrete term “queer.” Section II looks at the history of state action policing queer bodies and identities. It outlines statutes enacted to prevent individuals from hiding their identities and how such laws were used to target queer individuals. Section III discusses the case of Grimm v. Gloucester County School Boardand the two approaches taken by the Fourth Circuit in analyzing the claims advanced in that case.

First, it discusses the court’s finding that transgender individuals constitute a quasi-suspect class subject to heightened scrutiny. Second, it explores the court’s reasoning in finding that the policy in Grimm constituted sex-based discrimination. Finally, it examines Adams v. School Board of St. Johns County, an Eleventh Circuit case, which came to the opposite conclusion, before concluding that Grimm, in fact, got it right. Section IV argues gender non-conformity is a class that should be afforded heightened scrutiny.

First, it discusses why laws and policies targeting gender non-conforming individuals constitute sex-based discrimination. Then it applies the analysis from Grimm to argue that the same protection should be afforded to other gender non-conforming individuals.