William & Mary Bill of Rights Journal
This Article argues that the expressive components of gender-stereotyping theory serve to delink the equality protections afforded by that theory from fixed and predetermined identity categories in helpful and positive ways. Many have viewed American antidiscrimination law as being normatively grounded in the notion that there are certain identities that, because of their stable and immutable characteristics, deserve equality-based protections. Gender-stereotyping theory can help make the normative case for a more pluralistic understanding of equality, one that is grounded in the need to protect the fluid and multiple ways in which gender is performed or expressed rather than focusing, as American antidiscrimination law has traditionally done, on protecting limited categories of essentialized, fixed, and finite identity categories. In short, gender-stereotyping theory, properly understood, offers a practical way of articulating and implementing a theory of equality that does not depend on the existence of a limited number of privileged identities. A proper understanding of gender-stereotyping theory—one that focuses on how expressive performances of gender and sexuality identities may trigger responses by defendants that are motivated by sex stereotypes—can help antidiscrimination law move away from the notion that plaintiffs must identify according to certain fixed, stable, and predetermined categories in order to succeed in their equality claims.
Repository CitationCarlos A. Ball, Gender-Stereotyping Theory, Freedom of Expression, and Identity, 28 Wm. & Mary Bill Rts. J. 229 (2019), https://scholarship.law.wm.edu/wmborj/vol28/iss2/2
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