Kimberly A. Yuracko, Northwestern University School of Law
In the 19th and early 20th Century women were often excluded from jobs and opportunities because of their sex. Sex, it was thought, defined individuals’ abilities and interests in ways that rendered women fit for certain tasks and unfit for many others. Fortunately, such sexual essentialism has been repudiated by courts. No longer, for example, may employers make assumptions about how women must or should behave because of their sex. Nonetheless, I contend that the sexual essentialism of the past is being replaced by a new form of gender essentialism whereby courts not only permit but in fact enforce dichotomous and socially loaded conceptions of gender. Perhaps surprisingly, the seeds of this new essentialism are being sown in a recent wave of cases providing sex discrimination protection to transsexuals. While these cases are most often heralded as progressive and expansive, I argue that in fact the cases are highly reactionary. They rely upon and necessarily promote essentialized conceptions of masculinity and femininity that threaten to define and constrain the options available to women and men, transsexual and nontranssexual, alike. Indeed, I contend that the new essentialism, while more subtle than the old, is similarly pernicious.
Kimberly A. Yuracko. 2011. “The New Gender Essentialism”