Professor Elizabeth M. Glazer presented “The Awkward Phase of Antidiscrimination Law” (co-authored with Professor Zachary Kramer, of Penn State Dickinson School of Law) at the Third Annual Colloquium on Current Scholarship in Labor and Employment Law, in San Diego, Calif.
Anti-discrimination law, like individuals who experience discrimination, is in transition. No longer do civil rights lawyers and scholars worry about “first generation” discrimination, otherwise known as status discrimination. Anti-discrimination law’s “second generation” has foregone the requirement that individuals be white, male, straight, Protestant, and able-bodied in favor of the requirement that individuals only act white, male, straight, Protestant, and able-bodied. With the disaggregation of sex from gender in Title VII, and a focus on the demands placed upon individuals who display traits that are constitutive of their group identity to downplay or “cover” them, anti-discrimination law scholarship has explained why members of anti-discrimination law’s protected classes have continued to experience an assault on their civil rights.
Despite progress in anti-discrimination law, the graduation of its first generation and the commencement of its second generation have necessarily and problematically excluded two groups of sexual minorities: bisexuals and transgendered individuals. Their exclusion is necessitated by the very terms upon which anti-discrimination law has progressed. Because the identities of bisexuals and transgendered individuals are viewed as transitional and therefore temporary, anti-discrimination law’s first generation has failed to protect them. Because bisexuals and transgendered individuals do not have an act that defines their class, anti-discrimination law’s second generation has failed to protect them, as well. That bisexuals and transgendered individuals have fallen through the cracks in anti-discrimination law is problematic for a number of reasons—not the least of which is the proliferation of both of these groups. Moreover, there exists a growing perception that if anti-discrimination law were to protect either of these groups, that protection would threaten the law’s protection of gays, lesbians, and gender nonconformists.
This Article situates the bisexual and the transgendered person within anti-discrimination law’s current framework, building upon prior scholarship that has theorized the erasure of these sexual minority groups. The Article’s explicit claim is that the terms upon which anti-discrimination law has progressed have necessarily left out bisexuals and transgendered individuals. The Article’s implicit claim is that, in light of its exclusion of these increasingly important sexual minorities, anti-discrimination law has situated itself awkwardly for future progress.