Toward a Functional Analysis of "Sex" in Federal Antidiscrimination Law

The recent struggles of transgender people to use public bathrooms that fit their gender identity amplified an interpretative difficulty that courts have addressed for decades: whether or not the term "sex" in federal antidiscrimination law includes gender identity. This article argues that this dilemma is currently unresolvable, and, therefore, the phrases "because of sex" or "on the basis of sex" in federal antidiscrimination law should be analyzed through a functionalist perspective and not a descriptive one. Current interpretations of sex offered by pro- and anti-transgender advocates are founded on narrow, biological-essentialist visions of sex that lack sufficient empirical grounding. Accordingly, this article proposes first adopting an open-ended meaning of "sex" in federal antidiscrimination law, coined "contested essentialism." Then, the article proceeds toward a functionalist analysis of the sex-classification, inspired by the bona fide occupational qualification framework used in the employment discrimination context, to determine whether the classification is justified. The functional analysis creates a new balance between conservative and progressive interpretations of "sex" in federal antidiscrimination law by shifting the weight of legal analysis from the mere act of classification to its necessity and usefulness.