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Bostock’s Inclusive Queer Frame

Bostock v. Clayton County is the Supreme Court’s first major decision on gay rights written since Justice Kennedy’s retirement. It is a victory for the LGBT community—a momentous one. But this Essay argues that Bostock is even more momentous than its holding. The case’s central syllogism is hidden beneath a deceptively straightforward reading of Title VII. Bostock says, simply and clearly, that sex equality requires queer equality, and that trans rights are human rights.

Bostock’s logic is universal and inclusive. This Essay centers its analysis on trans identity to explain how and why that matters. It shows how Bostock arrives at its expansive frame for queer rights, and why its careful textual analysis leads it to an ostensibly progressive conclusion. This logic is unusual. Courts confronted with queer plaintiffs usually adopt more minoritarian frames. But in Bostock, inclusivity wins out. That is a good thing: an inclusive account of anti-queerness is straightforward and logical. It accurately describes the way sex-based discrimination operates. It accommodates difference well but remains robust enough to account for core instances of sex discrimination. It is promising, pragmatic, and adaptable. And finally, because it shows the deep interdependence of sex-based identities, the inclusive frame is profound.

[Q:] How has it been for you living as a trans person during this time?

[A:] Well, you’re referring to the Bostock . . . decision, which I think was huge for trans people, especially, because it established that [we] are protected in the workplace. And that’s extraordinary because it’s a protection that doesn’t depend upon privacy in the way that the Lawrence v. Texas decision . . . depended on privacy in order to defend gay sex.

It doesn’t depend on the kind of inherent dignity of the marriage form [that] Obergefell [did]—or the kind of redemptive qualities of love which may or may not chime with your experiences of love; they don’t always chime with mine—but the fact of work and the fact of the public. And it’s kind of amazing to think that that happened. I don’t think any of us really saw that coming. And it was a huge deal.*† Steven Rascón, Transitioning with Grace: Coming Out in Academia, Calif. Mag. (Fall 2020), https://alumni.berkeley.edu/california-magazine/fall-2020/transitioning-with-grace-lavery-coming-out-in-academia [https://perma.cc/8FKF-67PJ].Show More†

I. Introduction

Bostock v. Clayton County turned a traumatic quarantine summer into a watershed year for LGBT rights. Bostock’s holding is crystal clear, but as 2020 comes to an end, the decision as a whole remains difficult to characterize neatly. When it was issued in late June, it immediately became a jurisprudential Rorschach test. Maybe Bostock was principled and textual.1 1.Ezra Ishmael Young, Bostock Is a Textualist Triumph, Jurist (June 25, 2020, 3:53 PM), https://www.jurist.org/commentary/2020/06/ezra-young-bostock-textualist-triumph/ [https://perma.cc/R4T7-TGTV].Show More Or maybe it was autocratic diktat2 2.See Bostock v. Clayton County, 140 S. Ct. 1731, 1755–56 (2020) (Alito, J., dissenting); Ross Douthat, Opinion, The Tempting of Neil Gorsuch, N.Y. Times (June 20, 2020), https://www.nytimes.com/2020/06/20/opinion/sunday/neil-gorsuch-supreme-court.html [https://perma.cc/CMH8-SZ6S].Show More—or a trojan horse3 3.Joe Patrice, Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion, Above L. (June 15, 2020, 1:22 PM), https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion.Show More—or even the death of conservative judging itself.4 4.E.g.,Josh Hawley, Was It All for This? The Failure of the Conservative Legal Movement, Pub. Discourse (June 16, 2020), https://www.thepublicdiscourse.com/2020/06/65043/ [https://perma.cc/55EL-FR7L].Show More But no matter what the decision might augur for the Roberts Court, it remains true that an employer who fires a person for being gay or transgender violates Title VII of the Civil Rights Act.5 5.Bostock, 140 S. Ct. at 1754.Show More

For transgender Americans, Bostock means even more than what it says: the decision humanizes us in a setting where we are only rarely seen.6 6.See, e.g., Chase Strangio, The Trans Future I Never Dreamed Of, Atlantic (June 24, 2020), https://www.theatlantic.com/ideas/archive/2020/06/trans-future-i-never-dreamed/613­405/ [https://perma.cc/2SGX-EMFH].Show More This was the second time the Supreme Court found in a trans plaintiff’s favor,7 7.The first time the Court did so, it described the plaintiff as a “preoperative transsexual.” Farmer v. Brennan, 511 U.S. 825, 829 (1994) (addressing Eighth Amendment violations in prison housing).Show More but it was the first time the Court addressed transgender status head-on. Bostock is historic, and that makes it especially poignant in an election year that has spurred politicians to target trans identity.8 8.See, e.g., Stephanie Saul, A Virginia House Candidate Campaigns by Attacking ‘a Man Dressed as a Woman’, N.Y. Times (Aug. 16, 2020), https://www.nytimes.com/­2020/08/16/us/politics/lgbt-bob-good-congress-va.html [https://perma.cc/B2L4-3Y9R]; Sydney Bauer, Facebook Axes Political Ad Saying Trans Athletes Will ‘Destroy Girls Sports’, NBC News (Sept. 16, 2020, 5:22 PM), https://www.nbcnews.com/feature/nbc-out/facebook-axes-political-ad-saying-trans-athletes-will-destroy-girls-n1240262 [https://perma.cc/6CF6-AQHB].Show More

The critical reaction has been full of sound and fury, but the Bostock opinion itself has little bombast and less melodrama. Even more strangely, it seems to have no frame for trans identity at all. Transness9 9.I.e., transgender status. Susan Stryker’s glossary is recommended for those new to all these terms. Susan Stryker, Transgender History: The Roots of Today’s Revolution ch. 1, 1–44 (2d ed. 2017).Show More is taken for granted and presented without a scrap of theory. Even the old standby of gender identity appears precisely once in the majority opinion.10 10.See Bostock, 140 S. Ct. at 1739. Justice Kavanaugh barely mentions transness, seeid. at 1823 n.1 (Kavanaugh, J., dissenting), but Justice Alito frequently refers to “gender identity,” and he addresses the majority’s avoidance of the term. Id. at 1756 n.6 (Alito, J., dissenting).Show More Trans people simply have “one sex identified at birth and another today.”11 11.Id. at 1746 (majority opinion).Show More Without difficulty, without philosophizing, and without a single cite to Judith Butler,12 12.Judith Butler (they/she) is one of the world’s foremost philosophers of gender. Their anti-essentialist theory of gender has been incalculably influential. See Alona Ferber, Judith Butler on the Culture Wars, JK Rowling and Living in “Anti-intellectual Times,” New Statesman (Sept. 22, 2020), https://www.newstatesman.com/international/2020/09/judith-butler-culture-wars-jk-rowling-and-living-anti-intellectual-times [https://perma.cc/4Y34-CA8S]. Their work, particularly 1990’s Gender Trouble, midwifedthe field now known as queer theory. See id.; Cathy J. Cohen, Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?, 3 GLQ 437, 438 (1997). It is impossible to write about gender in a theoretical sense without referring to their work.Show More the majority isolates a straightforwardly textual (and surprisingly radical) argument: gender, identity, presentation, expression, sexuality, and physicality are ultimately inextricable from sex.13 13.See Bostock, 140 S. Ct. at 1742 (“[H]omosexuality and transgender status are inextricably bound up with sex.”); see alsoKatherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 8 (1995) (arguing that “[t]he wrong of sex discrimination must be understood to include all gender role stereotypes,” and that such a theory necessarily would protect transgender people); Ido Katri, Transgender Intrasectionality: Rethinking Anti-discrimination Law and Litigation, 20 U. Pa. J.L. & Soc. Change 51, 79 (2017) (arguing that “gender performance” is the common, “epistemological basis of . . . sex, sexual orientation, gender identity, and gender expression”).Show More Nothing is lost by avoiding “gender dysphoria” and “gender identity”; in fact, much is gained in the omission of these terms. The trans plaintiff can just be treated like everybody else. The angst and drama and ontology and metaphysics were never truly needed.

But Judith Butler still participates in Bostock, though she remains a background character. Bostock is more in accord with her thinking than one might expect: in a feat of convergent evolution, textualism and poststructuralism14 14.The critical framework that undergirds much of Butler’s work; in Butler’s view, poststructuralism is generally opposed to essentialism, binarism, and presumptions of universal meaning. See Bernard E. Harcourt, An Answer to the Question: ‘What is Poststructuralism?’ 2 (U. Chi. Pub. L. & Legal Theory Working Paper, Paper No. 156, 2007), https://ssrn.com/abstract=970348 [https://perma.cc/A3SH-KYTD].Show More arrive at similar results. This Essay seeks to explain how. First, I will describe an inclusive, trans-centered model of sex discrimination. Second, I will show how and why Bostock’s reasoning fits this inclusive model well. Third, I will note that other courts and lawyers may have hesitated to adopt this line of reasoning because of a commitment to a minoritarian frame that is both incomplete and counterproductive. Ultimately, trans equality is implicit in sex equality. By acknowledging this, Bostock empowers an inclusive theory of queer15 15.I use “queer” in its broadest sense, capturing all identities associated with the LGBT+ community. See Stryker, supra note 9, at 30–31.Show More and trans rights.

II. What Is Sex Discrimination?

A. Perception Theory

Philosophers, judges, and legal thinkers have long presumed a rigid distinction between the terms “gender” and “sex.”16 16.See, e.g., Judith Butler, Sex and Gender in Simone de Beauvoir’sSecond Sex, 72 Yale French Stud. 35, 35 (1986); J.E.B. v. Alabama, 511 U.S. 127, 157 n.1 (1994) (Scalia, J., dissenting); Melina C. Bell, Gender Essentialism and American Law: Why and How To Sever the Connection, 23 Duke J. Gender L. & Pol’y 163, 172 (2016).Show More Gender, the story goes, is composed of social norms and activities. Since its content is an artifact of culture, it is not entirely inherent; therefore, in the long run, gender can be altered—or even reconstituted into something else.17 17.See Butler, supra note 16, at 35; cf. Judith Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, 40 Theatre J. 519, 526 (1988) [hereinafter Butler, Performative Acts] (suggesting that gender is communicated through a performance, just as a role in a theatrical production is).Show More Sex, by contrast, is understood to comprise only biological facts.18 18.See, e.g., Richard A. Epstein, Gender Is for Nouns, 41 DePaul L. Rev. 981, 982–83 (1992). But seeFranke, supranote 13, at 5. It is possible to productively discuss sex and gender without resorting to prescriptive definitions. See, e.g., Maayan Sudai, Toward a Functional Analysis of “Sex” in Federal Antidiscrimination Law, 42 Harv. J.L. & Gender 421, 460–61 (2019).Show More

In practice, though, the distinction is less clear. “Sex” and “gender” were confused before this framework emerged, and they remained so even after it became more dominant.19 19.See David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 87 (2004).Show More Some are understandably frustrated by this overlap.20 20.See, e.g., J.E.B., 511 U.S. at 156 (Scalia, J., dissenting); Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev. (forthcoming 2020) (manuscript at 10), https://ssrn.com/abstract=3546552 [https://perma.cc/H4NU-KQ6P].Show More But the elision of “gender” and “sex” is natural, especially in the context of discrimination. The terms are fuzzy because the concepts themselves are too.

In society as currently constituted, sex and gender are intimately linked. To deny this is to confuse gender theory with gender fact.21 21.See Elizabeth Barnes, Gender and Gender Terms, 54 Noûs 704, 715 (2020).Show More Law has no choice but to acknowledge what is present: most children labeled with an “M” at birth are expected to behave and present in one way, and most children labeled with an “F” are expected to behave and present in another. Even if “sex” is assumed to refer only to physical traits and “gender” only to social ones, the two are not separable: social norms connect one to the other.22 22.See Katri, supra note 13, at 69–70.Show More And because sex and gender are connected, a person’s perceived sex will dictate which gender norms they are held to. Gendered discrimination—whomever it is applied to and whatever shape it takes—must always be “because of sex.”

B. Transing Price Waterhouse

Price Waterhouse v. Hopkins ably illustrates that link. Here are the facts: Ann Hopkins was up for promotion at her firm, but she was denied. Male partners thought that she was “macho” and needed “a course in charm school.” Her behavior was unacceptable; at Price Waterhouse, women were expected to maintain their femininity.23 23.Price Waterhouse v. Hopkins, 490 U.S. 228, 231, 235–36 (1989) (plurality opinion).Show More Under a standard of “but-for” causation, Hopkins made out a prima facie case for recovery under Title VII.24 24.Id. at 262–63, 279 (O’Connor, J., concurring in the judgment); accord Bostock v. Clayton County, 140 S. Ct. 1731, 1739–40 (2020).Show More Had Hopkins not been female, her masculinity would have been acceptable to the partnership. Therefore, she was disadvantaged “‘because of’ sex”—and Price Waterhouse violated the Civil Rights Act.25 25.Price Waterhouse, 490 U.S. at 241, 258.Show More

At first glance, Price Waterhouse seems simple. There’s a problem, though; one link is missing in the syllogism. How did the firm know that Hopkins was female?26 26.Let us assume that sex comprises only physical traits present at birth. Bostock, 140 S. Ct. at 1739.Show More Presumably, it did not inspect her genitals or karyotype her blood. That is not how anyone would evaluate an employee’s sex. Instead, Hopkins probably held herself out as a woman. She marked “female” on her job application. When she showed up to work, she dressed in a way that did not undermine that presumption, and when her co-workers looked at her, they did not see any physical traits inconsistent with the femaleness they assumed was there. What mattered was her perceived sex: because Ann Hopkins was understood to be female, she was expected to behave femininely too. Gender norms applied to her “because of sex.”

Now imagine this: it is 2021, and the facts of Price Waterhouse repeat. This time, though, the plaintiff is a trans woman. Call her Alice. She passes; she’s stealth27 27.A trans person “passes” when they are seen as cis. They have “gone stealth” when nobody in their everyday life knows that they are trans. See Meredith Talusan, Along with Pain, the Joy of Stealth, them. (May 26, 2020), https://www.them.us/story/along-with-pain-the-joy-of-stealth-meredith-talusan-fairest [https://perma.cc/WXT2-DNTY].Show More and has been for years; and she is always perceived as a woman. Just like Ann Hopkins thirty-two years before, she becomes a senior project manager at a major accounting firm. But she curses, acts “too macho,” and is denied a shot at partnership. She sues, pleading violations of Title VII. Since Alice’s facts are just like Ann’s, she survives her firm’s motion to dismiss, and the case proceeds to discovery. One way or another, the firm discovers Alice’s medical records and is simply delighted to learn that she is trans. What a boon! This woman was male all along.28 28.I.e., she has a penis and testes, and the firm reads these traits as proof of maleness. See Bostock, 140 S. Ct. at 1739.Show More Bostock’s holding does not apply because Alice was not dismissed for being trans. In fact, the firm never even knew she was transgender while she was employed. The but-for test fails, since Alice would have been fired just the same even if she had been cisgender. And the firm argues that Price Waterhouse is not on point, either: Alice’s dismissal could not have been “because of sex,” it says, because she actually conformed with sex stereotypes by being a masculine male. Maybe her dismissal was irrational and capricious; maybe her employer intended to discriminate and failed. But Title VII could not have been violated.

This result seems intuitively incorrect. And it is—because what matters is how Alice is seen. Sex discrimination is a social phenomenon, and for social purposes, Alice is indisputably female. Her legal sex is “F”; she presents herself as a woman; and not a thing suggested to her firm that she might lack a woman’s normative anatomy. In truth, her firm understood her as a woman. It treated her like a woman, and it fired her like one too. Title VII “prohibits certain motives, regardless of the state of the actor’s knowledge,” and so the firm’s perception is what makes the difference.29 29.EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (Scalia, J.); see Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“What matters . . . is that in the mind of the perpetrator the discrimination is related to the sex of the victim.”); Benjamin Eidelson, Discrimination and Disrespect 19–20 (2015).Show More

C. Trans Visibility

As Alice shows us, a passing trans woman suffers precisely the same sex discrimination that a cis woman does.30 30.Conversely, a closeted trans man also looks like a cis woman to an observer—and is therefore discriminated against as if he were one.Show More But what happens if a trans woman doesn’t pass? In that case, her transness is visible to a casual observer. Her “maleness” is apparent: the masculinity of her body clashes with the femininity of her presentation. This “clash” is often unpleasant for the observer, who may experience it as visceral revulsion.31 31.In the movies, a straight man will often vomit when he discovers that a woman he is attracted to is trans. See Disclosure, at 64:00–68:00 (Netflix 2020) (collecting examples).Show More It is unpleasant for the trans woman too, who may experience it as gender dysphoria.32 32.See Stryker, supra note 9, at 17–20. Anyone can feel gender dysphoria. The discomfort a woman might feel when she’s called “Sir” on the phone is gender dysphoria; so is the distress most men might feel if forced to wear a dress. Cf. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1117–18 (9th Cir. 2006) (en banc) (Kozinski, J., dissenting) (“Imagine, for example, a rule that all judges wear [makeup] while on the bench. . . . I would find such a regime burdensome and demeaning . . . . I suspect many of my colleagues would feel the same way.”).Show More Because of this incongruence, an identifiably trans woman cannot be treated like a cis man, no matter how “male” she looks.33 33.See Natalie Wynn, Gender Critical | ContraPoints, YouTube, at 13:51 (Mar. 30, 2019), https://youtu.be/1pTPuoGjQsI?t=831 [https://perma.cc/BX68-H7XY] (“When a trans woman doesn’t pass, it’s not like society simply treats her like a man. No, you get treated as monster gender, pronouns ‘it’ and ‘spit.’”).Show More Instead, she is an outlier.34 34.See Barnes, supra note 21, at 717; Katri, supra note 13, at 73.Show More Her form contradicts itself. That contradiction provokes disgust, which metastasizes into discrimination: she should not exist.

So once again, perception is what matters. A person who sees a misalignment can use it to infer transness, and that inference can motivate discrimination. It can also work the other way around: an employer can learn of a transition, interpret it as a per se misalignment, and dismiss an employee because of an ideological conviction that somebody appearing to be a man is estopped into that state forever.35 35.This conviction also motivated some courts to rule against trans plaintiffs. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984) (doubting that “a woman [could] be . . . created from what remains of a man”); Sonia K. Katyal, TheNumerus Clausus of Sex, 84 U. Chi. L. Rev. 389, 431–34 (2017).Show More This is what happened to Aimee Stephens, Bostock’s transgender plaintiff.36 36.See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 569 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020).Show More In Butlerian terms, the employer reads a visibly trans person as performing their gender incorrectly.37 37.See Butler, Performative Acts, supra note 17, at 527–28; Katri, supra note 13, at 71 (citing Judith Butler, Critically Queer, 1 GLQ 17, 17–32 (1993)).Show More The “wrongness” of a non-passing trans woman is a rejection of a person perceived to be “doing gender wrong.”

Price Waterhouse made it far more difficult to argue that discriminating against those “doing gender wrong” is permitted under Title VII.38 38.See Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“[T]he perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like’ one.”). But see Bostock, 140 S. Ct. at 1777–78 (Alito, J., dissenting).Show More Because perceived sex determines how one interprets a gender performance, perceived sex is central to transness itself. Discrimination is not and could not be a mere question of semantics.

D. Sex and Its Penumbrae

With this understanding of transphobia in hand, one can extend it to other kinds of discrimination too. It is easy to begin with trans identity; it is clear how closely trans is linked to sex. That is why this Essay began there, and maybe that is also why the federal courts have been friendly to trans plaintiffs for some time.39 39.See Paisley Currah, Transgender Rights Without a Theory of Gender?, 52 Tulsa L. Rev. 441, 445 (2017); Ezra Ishmael Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, 11 Calif. L. Rev. Online 9, 15–16 & n.33 (2020) (collecting cases).Show More In general terms, a discriminator assesses someone’s sex, determines that their behavior or presentation is inappropriate for that sex, and metes out punishment. Discriminating against an incorrect gender performance is sex discrimination; trans people are seen as doing gender wrong; and therefore, anti-transness relies on sex discrimination too.

This discriminatory process is general, and it can be applied to many kinds of nonconformity. Imagine the archetypal woman. What characterizes her? She appears to have a female and feminine body. She presents and holds herself out as a woman. And, of course, she prefers the company of men. All of these qualities are normatively associated with one another and linked up through her sex.40 40.Butler calls this phenomenon “the heterosexual matrix.” See David Gauntlett, Media, Gender and Identity 148 (2d ed. 2008).Show More And because these qualities are sex-related, they can all result in sex discrimination. Price Waterhouse is a perfect example: Ann Hopkins’s masculine behaviors are seen as inappropriate precisely because she is seen (and holds herself out as) a woman. The femininity of her body clashes with the masculinity of her presentation—and so, she is punished.41 41.Price Waterhouse v. Hopkins, 490 U.S. 228, 235–36 (1989).Show More Though she’s cis, she still performs her gender incorrectly. She is discriminated against in the same way and for the same reasons a trans plaintiff might be.42 42.See Young, supra note 39, at 22.Show More

Sex is at the center, and its penumbrae tend to generate identities that are often blurry, complex, ambiguous, or multivalent.43 43.See J. Halberstam, Transgender Butch: Butch/FTM Border Wars and the Masculine Continuum, 4 GLQ 287, 293–95 (1998). Many people see these identities as inherent to them; many do not. Focusing on perception frees us from having to decide which view is right. Cf. Currah, supra note 39, at 444 (describing the way debates about transgender rights often descend into debates about the nature of gender).Show More But this does not mean that sex must be a stable background. None of this must imply that trans women are simply “men in dresses”; that butch lesbians are merely inchoate trans men; or that nonbinary people are “just” nonconforming members of their sex (as assigned or perceived). Homophobia, transphobia, and sexism are not the same. But these forms of discrimination are similar—and even more importantly, they are interrelated. They are connected by a “complicated network of similarities.”44 44.Ludwig Wittgenstein, Philosophical Investigations ¶ 66 (P.M.S. Hacker & Joachim Schulte eds., G.E.M. Anscombe, P.M.S. Hacker & Joachim Schulte trans., 4th ed. 2009); see Butler, Performative Acts, supra note 17, at 529.Show More They intersect with, converge on, and return to sex, and focusing on sex will capture all of them at once.

Courts have struggled mightily to disentangle discrimination because of sex, gender, sexuality, and transness. But because these forms of bias are so closely linked, it is impossible to distinguish them consistently. As a consequence, the doctrine of sex equality descended into incoherence.45 45.Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minn. L. Rev. Headnotes 1, 10–11 (2020).Show More Some courts supposed that claims of sex discrimination were actually because of “sexual preference” and dismissed them;46 46.E.g., Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326 (5th Cir. 1978).Show More others emphasized that Title VII protected gender-nonconforming conduct, but that status was outside its bounds.47 47.E.g., Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1258 (11th Cir. 2017) (W. Pryor, J., concurring).Show More Some courts elided queerness and sex;48 48.E.g., Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492, 493 (9th Cir. 2009) (per curiam). The panel in Kastl included then-Judge Gorsuch, sitting by designation. Id.; see Young, supra note 39, at 31 (characterizing the decision as “pure Gorsuch”).Show More and finally, some concluded that the distinction was untenable and quit the field entirely.49 49.E.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2d Cir. 2018) (en banc) (Cabranes, J., concurring in the judgment) (“Zarda’s sexual orientation is a function of his sex. . . . That should be the end of the analysis.”), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020).Show More As the Eleventh Circuit put it:

A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. “[T]he [sic] very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.50 50.Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (quoting Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Calif. L. Rev. 561, 563 (2007)). The panel, composed of Judges Barkett, W. Pryor, and Kravitch, was unanimous in its decision, suggesting that this was not a partisan finding. Id. at 1313; see Young, supra note 39, at 16 n.35.Show More

Price Waterhouse simply made it impossible to keep every queer plaintiff out. As more and more of them brought their claims, the line drawing became impossible, the categories became confused, and their entanglement was laid bare for all to see.51 51.See Jessica A. Clarke, How the First Forty Years of Circuit Precedent Got Title VII’s Sex Discrimination Provision Wrong, 98 Tex. L. Rev. Online 83, 113–17 (2019).Show More Over time, it became undeniably clear that the feminine man, the gay man, and the (visibly) trans man are punished for essentially the same transgression.52 52.See Katri, supra note 13, at 70.Show More As the courts saw, sex is a powerful thing—it has deep roots and manifold effects. And so, addressing sex discrimination often means attacking anti-queerness too.

III. Why Bostock Got It Right . . . 

Bostock’s theory of sex discrimination is nothing new. It is not new to activists,53 53.SeeCary Franklin, The Anti-stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 115–16 (2010).Show More academics,54 54.See, e.g.,Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208 (1994).Show More or judges.55 55.See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1750–51 (2020); Winstead v. Lafayette Cnty. Bd. of Cnty. Comm’rs, 197 F. Supp. 3d 1334, 1346–47 (N.D. Fla. 2016).Show More Courts, however, have distinguished an “analytic” or per se theory of queer protections from one that derives from the sex-stereotyping holding of Price Waterhouse.56 56.SeeWinstead, 197 F. Supp. 3d at 1343–46.Show More Bostock makes clear, once and for all, that these theories are one and the same. Sex stereotyping is per se “because of sex”; anti-queer discrimination is per se sex stereotyping. No matter how you get there, anti-queer discrimination must be “because of sex.” Remember: a person’s queer status is defined by queer conduct, and queer conduct is marked only because it transgresses gender norms. These norms, in turn, are deeply linked to sex.

Bostock’s logic is textual, but it sees this fact-based argument—and that means that it acknowledges how sex discrimination truly works. The Court was not ignorant of the mechanics of sex discrimination. One amicus brief clarified just how difficult distinguishing sex-based and sexuality-based discrimination is in the world at large.57 57.SeeBrief of Serv. Emps. Int’l Union, Int’l Brotherhood of Teamsters & Jobs with Just. as Amici Curiae in Support of the Employees at 8, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107).Show More Another noted that “[t]he oppression of women and that of gay people are interdependent and spring from the same roots, though they take different forms.”58 58.Brief of Historians as Amici Curiae in Support of Employees at 31–32, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107) (internal quotations omitted).Show More

This emphasis on the diversity, fluidity, and breadth of sex discrimination produces Bostock. And that universalizing push guides the opinion to a general theory of sex discrimination that supersedes the reasoning of Price Waterhouse. Gender nonconformity is not a separate cause of action under Title VII—it never was.59 59.See alsoEvans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1260 (11th Cir. 2017) (W. Pryor, J., concurring) (“The doctrine of gender nonconformity is not an independent vehicle for relief.”).Show More But under Bostock’s logic, a person fired for gender nonconformity is necessarily fired “because of sex.” Had the employee been seen as a member of a different sex, their behavior would have been normative, and no dismissal would have occurred.

The Bostock test is inclusive, and that makes it flexible and robust. Picture this: a lesbian lawyer holds a “same-sex commitment ceremony” and is fired. The employer claims that she was fired not for being gay but for “flaunting her homosexuality.”60 60.Kenji Yoshino, Covering, 111 Yale L.J. 769, 776 (2002) (summarizing Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc)).Show More But Bostock still provides a cause of action. After all, had the lawyer been a man, “flaunting [his] sexuality” by honoring commitment to a woman would not have been offensive.61 61.See Bostock, 140 S. Ct. at 1741 (explaining that an employer who fires a man “for traits or actions it tolerates in his female colleague” violates Title VII).Show More The lesbian lawyer’s womanhood is a but-for cause of her dismissal. Thanks to Bostock, nobody needs to litigate whether the true cause of the dismissal was sex, gender expression, sexuality, or something else. Primary causation is irrelevant. Everything sex touches is included.

IV. . . . And Others Got It Wrong

If this approach is so natural, why did it take so long to accept it? Here is one answer: past courts were motivated by animosity to write queer people out of the law. Now that queer identity is less stigmatized, even-handedness is possible.62 62.See Clarke, supra note 51, at 121–22. Past courts also mistakenly focused on group rather than individual rights. See Anthony M. Kreis, Dead Hand Vogue, 54 U. Rich. L. Rev. 705, 707–08 (2020).Show More That is surely part of the story, but something else may also be at work.

Lawyers litigating civil rights are motivated to frame queer and trans people as a “discrete and insular minority.”63 63.United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).Show More That is what the Supreme Court has said is needed to find protected status, after all.64 64.See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (describing “traditional indicia of suspectness”); id. at 104–05 (Marshall, J., dissenting) (citing Carolene Products to explain why certain classifications “call for close[r] judicial scrutiny”).Show More This minoritarian move is natural in American anti-discrimination law, whose principal target is racism. But race discrimination is not a neat analogue for anti-queerness. Neither race, ethnicity, nor national origin are chosen; therefore, their immutability seems to make them wrongful bases for discrimination.65 65.See Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 14–16 (2015).Show More By analogy, other wrongful bases are presumed to be immutable as well. Extending anti-discrimination protections to new groups prompts lawyers to characterize those groups in terms of immutable or near-immutable traits.66 66.See id. at 23–26.Show More That search for unchangeable qualities focuses the inquiry on status and obscures the contribution of behavior.

But immutability is not necessarily what makes a trait protected,67 67.Cf. Deborah Hellman, When Is Discrimination Wrong? 133 (2008) (suggesting that a characteristic shared between classic forms of wrongful discrimination may be mere “correlation” rather than the cause of their wrongfulness).Show More and relying on it is inappropriate. Transness is an identity, but when it is assumed to be stable, inherent, and immovable, the case for trans rights starts to sound like an argument for accommodation, rendered necessary by the harmful consequences of untreated gender dysphoria.68 68.See Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1292–93 (11th Cir. 2020); Jennifer L. Levi, Clothes Don’t Make the Man (or Woman), but Gender Identity Might, 15 Colum. J. Gender & L. 90, 104–10 (2006) (defending this approach).Show More The argument starts to sound like an excuse: transness must be tolerated not because it is worthy of respect but because dysphoria cannot be treated otherwise. The poor things just can’t help it.

A minoritizing emphasis on immutability is inaccurate as well. A status-first, “no-choice” analysis only really holds for vertical, heritable traits. These vertical identities are passed down generationally and therefore feel (or truly are) immutable. One is born into them. Queerness is entirely different: it is a “horizontal” trait that is usually not shared across generations.69 69.See Andrew Solomon, Far from the Tree: Parents, Children, and the Search for Identity 2–3 (2012).Show More Because it is a horizontal identity, queerness is adopted (identified with) more often than it is ascribed. Queerness requires coming out: first to yourself, then to others. It requires a chosen act.

And so, the behavior has pride of place because the identity is defined by its associated acts, whether they are actually performed or merely longed for. The act is inextricable: nobody can know that they are gay until they feel a gay desire. One must at least desire transition to be trans, and one must choose to manifest that status in some way: there is always a choice, even if the choice is effectively between transition and death.70 70.For many, dysphoria is so intense that transition truly feels like a matter of life and death. See Stephen T. Russell, Amanda M. Pollitt, Gu Li & Arnold H. Grossman, Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation and Behavior Among Transgender Youth, 63 J. Adolescent Health 503, 505 (2018) (finding that proxies for social transition predict decreases in suicidal behavior). For others, dysphoria merely impairs one’s quality of life. See Emily VanDerWerff, The Catastrophist, or: On Coming Out as Trans at 37, Vox (June 3, 2019, 10:00 AM), https://www.vox.com/culture/2019/6/3/18647615/­coming-out-transgender-handmaids-tale-emily-todd-vanderwerff (“I could have lived as a man for the rest of my life . . . . I did not find it literally impossible, as so many trans women do. And yet to live as a man was to take such bad care of myself that ‘the rest of my life’ drastically shortened.”). I could have kept living too—but it would have been a very stunted life.Show More Discrimination requires visibility; visibility requires being out; and being out means choosing to be out. Thus, to imagine a queer identity that can be subject to discrimination as something separable from chosen acts is to deeply, fundamentally misunderstand that identity.

Queerness is therefore a poor fit for an anti-discrimination law focused on immutability. But its act-contingent nature makes it perfect for the conduct-focused Title VII. The Title VII analysis need not presume some stable category; it does not need to classify status to confer protection. Bostock acknowledges this, and it arrives at inclusivity by centering behavior: “Employers fire, single out, discriminate (against), penalize. Infants are ‘identified as’ male or female. . . . Individuals are penalized for particular ‘traits or actions.’”71 71.Paisley Currah, How a Conservative Legal Perspective Just Saved LGBT Rights, Bos. Rev. (June 19, 2020), https://www.bostonreview.net/gender-sexuality/paisley-currah-how-conservative-legal-perspective-just-saved-lgbt-rights [https://perma.cc/6Q2L-7UKH] (inter­nal quotations omitted).Show More

Because Bostock correctly centers conduct and not status, its choice of language should not be surprising. Why does the decision avoid “gender identity”? Maybe gender has little place in a law dedicated to sex; maybe gender necessarily brings sex along with it. Or maybe gender identity is the wrong way to think about transness. After all, a trans woman and a cis woman have precisely the same gender identity: woman. When gender identity becomes the key to transness, what results is language that only permits trans people to identify, whereas cis people are simply permitted to be.72 72.Florence Ashley, The Constitutive In/visibility of the Trans Legal Subject: A Case Study, 28 UCLA Women’s L.J. (forthcoming 2021) (manuscript at 29–30) (on file with author).Show More Gender identity is certainly part of the puzzle, since anti-trans discrimination is “because of” gender identity just as it is “because of” sex. But gender identity is not what separates in-group from out-group. It comes as no surprise, then, that Bostock cautiously avoids it.

“Gender identity” has an even bigger problem. Applying the concept to transgender status not only decouples transness from sex but also renders it alien, foreign, and other.73 73.See id. (manuscript at 29); Paisley Currah & Shannon Minter, Unprincipled Exclusions: The Struggle To Achieve Judicial and Legislative Equality for Transgender People, 7 Wm. & Mary J. Women & L. 37, 50–51 (2000).Show More The word “identity” sounds flimsy: it could easily be arbitrary or chosen. By comparison, “sex” feels stable, constant, and determined. When transness is asserted to hinge on gender and not sex, it seems perfectly logical to suppose that trans people are similarly situated to cis members of the sex they were assigned at birth.74 74.See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610 n.10 (4th Cir. 2020), reh’g en banc denied, 2020 WL 5667294 (Sept. 22, 2020).Show More “Gender identity” makes it too easy to assume that a trans man is a “biological female” who merely identifies as male—and that therefore he is more like a cis woman than a cis man.75 75.See id. at 628 (Niemeyer, J., dissenting); Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1311 (11th Cir. 2020) (W. Pryor, C.J., dissenting).Show More The subjective language of identity combined with the pathologizing language of dysphoria can lead a judge to conclude that transness is no more than a delusion.76 76.This rhetorical tendency surfaces in the Grimm and Adams majorities, see infranote 79, and led, I believe, to the skeptical epistemic attitudes of the dissents. See supra note 75.Show More “Identifying as a man” becomes ridiculous, a flight of fancy no more reasonable than imagining oneself a helicopter.77 77.See Harper Shalloe, “I Sexually Identify as an Attack Helicopter”, 6 TSQ 667, 667–68 (2019).Show More

V. Consequences and Conclusions

Bostock has begun working its way into lower court opinions. As it arrives, its clarifying power seems immense. This is easiest to see in August’s “bathrooms cases,” where divided panels of the Fourth and Eleventh Circuits found that schools that ban trans men from using the men’s bathroom violate both the Equal Protection Clause and Title IX.78 78.Grimm, 972 F.3d at 593; Adams, 968 F.3d at 1292.Show More The cases’ Equal Protection analyses wander here and there when describing transness: they touch on gender identity, dysphoria, stereotyping, and subordination on their way to describing their plaintiffs and the differential treatment that they suffered.79 79.See, e.g., Grimm, 972 F.3d at 608–10; Adams, 968 F.3d at 1291, 1302–04.Show More By contrast, the Title IX discussions are clear as day. Bostock makes equivocation and justification unnecessary. The decision obviates the endless rhetoric of stereotype and permits a simple finding that the plaintiffs were harmed because of their sex.80 80.See Grimm, 972 F.3d at 616; Adams, 968 F.3d at 1305. While Grimm cited Bostock for its Title IX analysis, the court also found that Price Waterhouse permitted a distinct “sex-stereotyping” claim. Grimm, 972 F.3d at 617 n.15. But seesupra Part III.Show More

So maybe Bostock’s odd directness is its genius; maybe queerness always was this simple. Maybe we never needed identity, dysphoria, psychology, pathology, endocrinology. All we needed were judges willing to see queer and trans people as they are.81 81.See Currah, supra note 39, at 446–47.Show More Bostock takes the implications of “sex” fully and seriously, and that makes sex’s implications easy to understand. Seneca Falls may not have been Stonewall,82 82.Bostock v. Clayton County, 140 S. Ct. 1731, 1828–29 (Kavanaugh, J., dissenting).Show More but it had the seeds of Stonewall in it. In the end, we are all included in Bostock. And trans rights always were human rights.

  1. * J.D. Candidate, University of Virginia School of Law (expected 2022). Endless thanks are owed, inter alios, to Florence Ashley, Holly Chaisson, D Dangaran, Chloe S. Fife, Brian L. Frye, J. Remy Green, Deborah Hellman, Leslie Kendrick, Hanaa Khan, Kevin Krotz, Kevin G. Schascheck, Jack Vallar, and Sarah Stewart Ware. ↑
  2. † Steven Rascón, Transitioning with Grace: Coming Out in Academia, Calif. Mag. (Fall 2020), https://alumni.berkeley.edu/california-magazine/fall-2020/transitioning-with-grace-lavery-coming-out-in-academia [https://perma.cc/8FKF-67PJ]. ↑
  3. Ezra Ishmael Young, Bostock Is a Textualist Triumph, Jurist (June 25, 2020, 3:53 PM), https://www.jurist.org/commentary/2020/06/ezra-young-bostock-textualist-triumph/ [https://perma.cc/R4T7-TGTV]. ↑
  4. See Bostock v. Clayton County, 140 S. Ct. 1731, 1755–56 (2020) (Alito, J., dissenting); Ross Douthat, Opinion, The Tempting of Neil Gorsuch, N.Y. Times (June 20, 2020), https://www.nytimes.com/2020/06/20/opinion/sunday/neil-gorsuch-supreme-court.html [https://perma.cc/CMH8-SZ6S]. ↑
  5. Joe Patrice, Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion, Above L. (June 15, 2020, 1:22 PM), https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion. ↑
  6. E.g.,Josh Hawley, Was It All for This? The Failure of the Conservative Legal Movement, Pub. Discourse (June 16, 2020), https://www.thepublicdiscourse.com/2020/06/65043/ [https://perma.cc/55EL-FR7L]. ↑
  7. Bostock, 140 S. Ct. at 1754. ↑
  8. See, e.g., Chase Strangio, The Trans Future I Never Dreamed Of, Atlantic (June 24, 2020), https://www.theatlantic.com/ideas/archive/2020/06/trans-future-i-never-dreamed/613­405/ [https://perma.cc/2SGX-EMFH]. ↑
  9. The first time the Court did so, it described the plaintiff as a “preoperative transsexual.” Farmer v. Brennan, 511 U.S. 825, 829 (1994) (addressing Eighth Amendment violations in prison housing). ↑
  10. See, e.g., Stephanie Saul, A Virginia House Candidate Campaigns by Attacking ‘a Man Dressed as a Woman’, N.Y. Times (Aug. 16, 2020), https://www.nytimes.com/­2020/08/16/us/politics/lgbt-bob-good-congress-va.html [https://perma.cc/B2L4-3Y9R]; Sydney Bauer, Facebook Axes Political Ad Saying Trans Athletes Will ‘Destroy Girls Sports’, NBC News (Sept. 16, 2020, 5:22 PM), https://www.nbcnews.com/feature/nbc-out/facebook-axes-political-ad-saying-trans-athletes-will-destroy-girls-n1240262 [https://perma.cc/6CF6-AQHB]. ↑
  11. I.e., transgender status. Susan Stryker’s glossary is recommended for those new to all these terms. Susan Stryker, Transgender History: The Roots of Today’s Revolution ch. 1, 1–44 (2d ed. 2017). ↑
  12. See Bostock, 140 S. Ct. at 1739. Justice Kavanaugh barely mentions transness, see id. at 1823 n.1 (Kavanaugh, J., dissenting), but Justice Alito frequently refers to “gender identity,” and he addresses the majority’s avoidance of the term. Id. at 1756 n.6 (Alito, J., dissenting). ↑
  13. Id. at 1746 (majority opinion). ↑
  14. Judith Butler (they/she) is one of the world’s foremost philosophers of gender. Their anti-essentialist theory of gender has been incalculably influential. See Alona Ferber, Judith Butler on the Culture Wars, JK Rowling and Living in “Anti-intellectual Times,” New Statesman (Sept. 22, 2020), https://www.newstatesman.com/international/2020/09/judith-butler-culture-wars-jk-rowling-and-living-anti-intellectual-times [https://perma.cc/4Y34-CA8S]. Their work, particularly 1990’s Gender Trouble, midwifed the field now known as queer theory. See id.; Cathy J. Cohen, Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?, 3 GLQ 437, 438 (1997). It is impossible to write about gender in a theoretical sense without referring to their work. ↑
  15. See Bostock, 140 S. Ct. at 1742 (“[H]omosexuality and transgender status are inextricably bound up with sex.”); see also Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 8 (1995) (arguing that “[t]he wrong of sex discrimination must be understood to include all gender role stereotypes,” and that such a theory necessarily would protect transgender people); Ido Katri, Transgender Intrasectionality: Rethinking Anti-discrimination Law and Litigation, 20 U. Pa. J.L. & Soc. Change 51, 79 (2017) (arguing that “gender performance” is the common, “epistemological basis of . . . sex, sexual orientation, gender identity, and gender expression”). ↑
  16. The critical framework that undergirds much of Butler’s work; in Butler’s view, poststructuralism is generally opposed to essentialism, binarism, and presumptions of universal meaning. See Bernard E. Harcourt, An Answer to the Question: ‘What is Poststructuralism?’ 2 (U. Chi. Pub. L. & Legal Theory Working Paper, Paper No. 156, 2007), https://ssrn.com/abstract=970348 [https://perma.cc/A3SH-KYTD]. ↑
  17. I use “queer” in its broadest sense, capturing all identities associated with the LGBT+ community. See Stryker, supra note 9, at 30–31. ↑
  18. See, e.g., Judith Butler, Sex and Gender in Simone de Beauvoir’s Second Sex, 72 Yale French Stud. 35, 35 (1986); J.E.B. v. Alabama, 511 U.S. 127, 157 n.1 (1994) (Scalia, J., dissenting); Melina C. Bell, Gender Essentialism and American Law: Why and How To Sever the Connection, 23 Duke J. Gender L. & Pol’y 163, 172 (2016). ↑
  19. See Butler, supra note 16, at 35; cf. Judith Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, 40 Theatre J. 519, 526 (1988) [hereinafter Butler, Performative Acts] (suggesting that gender is communicated through a performance, just as a role in a theatrical production is). ↑
  20. See, e.g., Richard A. Epstein, Gender Is for Nouns, 41 DePaul L. Rev. 981, 982–83 (1992). But see Franke, supra note 13, at 5. It is possible to productively discuss sex and gender without resorting to prescriptive definitions. See, e.g., Maayan Sudai, Toward a Functional Analysis of “Sex” in Federal Antidiscrimination Law, 42 Harv. J.L. & Gender 421, 460–61 (2019). ↑
  21. See David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 87 (2004). ↑
  22. See, e.g., J.E.B., 511 U.S. at 156 (Scalia, J., dissenting); Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev. (forthcoming 2020) (manuscript at 10), https://ssrn.com/abstract=3546552 [https://perma.cc/H4NU-KQ6P]. ↑
  23. See Elizabeth Barnes, Gender and Gender Terms, 54 Noûs 704, 715 (2020). ↑
  24. See Katri, supra note 13, at 69–70. ↑
  25. Price Waterhouse v. Hopkins, 490 U.S. 228, 231, 235–36 (1989) (plurality opinion). ↑
  26. Id. at 262–63, 279 (O’Connor, J., concurring in the judgment); accord Bostock v. Clayton County, 140 S. Ct. 1731, 1739–40 (2020). ↑
  27. Price Waterhouse, 490 U.S. at 241, 258. ↑
  28. Let us assume that sex comprises only physical traits present at birth. Bostock, 140 S. Ct. at 1739. ↑
  29. A trans person “passes” when they are seen as cis. They have “gone stealth” when nobody in their everyday life knows that they are trans. See Meredith Talusan, Along with Pain, the Joy of Stealth, them. (May 26, 2020), https://www.them.us/story/along-with-pain-the-joy-of-stealth-meredith-talusan-fairest [https://perma.cc/WXT2-DNTY]. ↑
  30. I.e., she has a penis and testes, and the firm reads these traits as proof of maleness. See Bostock, 140 S. Ct. at 1739. ↑
  31. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (Scalia, J.); see Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“What matters . . . is that in the mind of the perpetrator the discrimination is related to the sex of the victim.”); Benjamin Eidelson, Discrimination and Disrespect 19–20 (2015). ↑
  32. Conversely, a closeted trans man also looks like a cis woman to an observer—and is therefore discriminated against as if he were one. ↑
  33. In the movies, a straight man will often vomit when he discovers that a woman he is attracted to is trans. See Disclosure, at 64:00–68:00 (Netflix 2020) (collecting examples). ↑
  34. See Stryker, supra note 9, at 17–20. Anyone can feel gender dysphoria. The discomfort a woman might feel when she’s called “Sir” on the phone is gender dysphoria; so is the distress most men might feel if forced to wear a dress. Cf. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1117–18 (9th Cir. 2006) (en banc) (Kozinski, J., dissenting) (“Imagine, for example, a rule that all judges wear [makeup] while on the bench. . . . I would find such a regime burdensome and demeaning . . . . I suspect many of my colleagues would feel the same way.”). ↑
  35. See Natalie Wynn, Gender Critical | ContraPoints, YouTube, at 13:51 (Mar. 30, 2019), https://youtu.be/1pTPuoGjQsI?t=831 [https://perma.cc/BX68-H7XY] (“When a trans woman doesn’t pass, it’s not like society simply treats her like a man. No, you get treated as monster gender, pronouns ‘it’ and ‘spit.’”). ↑
  36. See Barnes, supra note 21, at 717; Katri, supra note 13, at 73. ↑
  37. This conviction also motivated some courts to rule against trans plaintiffs. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984) (doubting that “a woman [could] be . . . created from what remains of a man”); Sonia K. Katyal, The Numerus Clausus of Sex, 84 U. Chi. L. Rev. 389, 431–34 (2017). ↑
  38. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 569 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020). ↑
  39. See Butler, Performative Acts, supra note 17, at 527–28; Katri, supra note 13, at 71 (citing Judith Butler, Critically Queer, 1 GLQ 17, 17–32 (1993)). ↑
  40. See Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“[T]he perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like’ one.”). But see Bostock, 140 S. Ct. at 1777–78 (Alito, J., dissenting). ↑
  41. See Paisley Currah, Transgender Rights Without a Theory of Gender?, 52 Tulsa L. Rev. 441, 445 (2017); Ezra Ishmael Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, 11 Calif. L. Rev. Online 9, 15–16 & n.33 (2020) (collecting cases). ↑
  42. Butler calls this phenomenon “the heterosexual matrix.” See David Gauntlett, Media, Gender and Identity 148 (2d ed. 2008). ↑
  43. Price Waterhouse v. Hopkins, 490 U.S. 228, 235–36 (1989). ↑
  44. See Young, supra note 39, at 22. ↑
  45. See J. Halberstam, Transgender Butch: Butch/FTM Border Wars and the Masculine Continuum, 4 GLQ 287, 293–95 (1998). Many people see these identities as inherent to them; many do not. Focusing on perception frees us from having to decide which view is right. Cf. Currah, supra note 39, at 444 (describing the way debates about transgender rights often descend into debates about the nature of gender). ↑
  46. Ludwig Wittgenstein, Philosophical Investigations ¶ 66 (P.M.S. Hacker & Joachim Schulte eds., G.E.M. Anscombe, P.M.S. Hacker & Joachim Schulte trans., 4th ed. 2009); see Butler, Performative Acts, supra note 17, at 529. ↑
  47. Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minn. L. Rev. Headnotes 1, 10–11 (2020). ↑
  48. E.g., Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326 (5th Cir. 1978). ↑
  49. E.g., Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1258 (11th Cir. 2017) (W. Pryor, J., concurring). ↑
  50. E.g., Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492, 493 (9th Cir. 2009) (per curiam). The panel in Kastl included then-Judge Gorsuch, sitting by designation. Id.; see Young, supra note 39, at 31 (characterizing the decision as “pure Gorsuch”). ↑
  51. E.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2d Cir. 2018) (en banc) (Cabranes, J., concurring in the judgment) (“Zarda’s sexual orientation is a function of his sex. . . . That should be the end of the analysis.”), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020). ↑
  52. Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (quoting Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Calif. L. Rev. 561, 563 (2007)). The panel, composed of Judges Barkett, W. Pryor, and Kravitch, was unanimous in its decision, suggesting that this was not a partisan finding. Id. at 1313; see Young, supra note 39, at 16 n.35. ↑
  53. See Jessica A. Clarke, How the First Forty Years of Circuit Precedent Got Title VII’s Sex Discrimination Provision Wrong, 98 Tex. L. Rev. Online 83, 113–17 (2019). ↑
  54. See Katri, supra note 13, at 70. ↑
  55. See Cary Franklin, The Anti-stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 115–16 (2010). ↑
  56. See, e.g., Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208 (1994). ↑
  57. See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1750–51 (2020); Winstead v. Lafayette Cnty. Bd. of Cnty. Comm’rs, 197 F. Supp. 3d 1334, 1346–47 (N.D. Fla. 2016). ↑
  58. See Winstead, 197 F. Supp. 3d at 1343–46. ↑
  59. See Brief of Serv. Emps. Int’l Union, Int’l Brotherhood of Teamsters & Jobs with Just. as Amici Curiae in Support of the Employees at 8, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107). ↑
  60. Brief of Historians as Amici Curiae in Support of Employees at 31–32, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107) (internal quotations omitted). ↑
  61. See also Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1260 (11th Cir. 2017) (W. Pryor, J., concurring) (“The doctrine of gender nonconformity is not an independent vehicle for relief.”). ↑
  62. Kenji Yoshino, Covering, 111 Yale L.J. 769, 776 (2002) (summarizing Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc)). ↑
  63. See Bostock, 140 S. Ct. at 1741 (explaining that an employer who fires a man “for traits or actions it tolerates in his female colleague” violates Title VII). ↑
  64. See Clarke, supra note 51, at 121–22. Past courts also mistakenly focused on group rather than individual rights. See Anthony M. Kreis, Dead Hand Vogue, 54 U. Rich. L. Rev. 705, 707–08 (2020). ↑
  65. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). ↑
  66. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (describing “traditional indicia of suspectness”); id. at 104–05 (Marshall, J., dissenting) (citing Carolene Products to explain why certain classifications “call for close[r] judicial scrutiny”). ↑
  67. See Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 14–16 (2015). ↑
  68. See id. at 23–26. ↑
  69. Cf. Deborah Hellman, When Is Discrimination Wrong? 133 (2008) (suggesting that a characteristic shared between classic forms of wrongful discrimination may be mere “correlation” rather than the cause of their wrongfulness). ↑
  70. See Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1292–93 (11th Cir. 2020); Jennifer L. Levi, Clothes Don’t Make the Man (or Woman), but Gender Identity Might, 15 Colum. J. Gender & L. 90, 104–10 (2006) (defending this approach). ↑
  71. See Andrew Solomon, Far from the Tree: Parents, Children, and the Search for Identity 2–3 (2012). ↑
  72. For many, dysphoria is so intense that transition truly feels like a matter of life and death. See Stephen T. Russell, Amanda M. Pollitt, Gu Li & Arnold H. Grossman, Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation and Behavior Among Transgender Youth, 63 J. Adolescent Health 503, 505 (2018) (finding that proxies for social transition predict decreases in suicidal behavior). For others, dysphoria merely impairs one’s quality of life. See Emily VanDerWerff, The Catastrophist, or: On Coming Out as Trans at 37, Vox (June 3, 2019, 10:00 AM), https://www.vox.com/culture/2019/6/3/18647615/­coming-out-transgender-handmaids-tale-emily-todd-vanderwerff (“I could have lived as a man for the rest of my life . . . . I did not find it literally impossible, as so many trans women do. And yet to live as a man was to take such bad care of myself that ‘the rest of my life’ drastically shortened.”). I could have kept living too—but it would have been a very stunted life. ↑
  73. Paisley Currah, How a Conservative Legal Perspective Just Saved LGBT Rights, Bos. Rev. (June 19, 2020), https://www.bostonreview.net/gender-sexuality/paisley-currah-how-conservative-legal-perspective-just-saved-lgbt-rights [https://perma.cc/6Q2L-7UKH] (inter­nal quotations omitted). ↑
  74. Florence Ashley, The Constitutive In/visibility of the Trans Legal Subject: A Case Study, 28 UCLA Women’s L.J. (forthcoming 2021) (manuscript at 29–30) (on file with author). ↑
  75. See id. (manuscript at 29); Paisley Currah & Shannon Minter, Unprincipled Exclusions: The Struggle To Achieve Judicial and Legislative Equality for Transgender People, 7 Wm. & Mary J. Women & L. 37, 50–51 (2000). ↑
  76. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610 n.10 (4th Cir. 2020), reh’g en banc denied, 2020 WL 5667294 (Sept. 22, 2020). ↑
  77. See id. at 628 (Niemeyer, J., dissenting); Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1311 (11th Cir. 2020) (W. Pryor, C.J., dissenting). ↑
  78. This rhetorical tendency surfaces in the Grimm and Adams majorities, see infra note 79, and led, I believe, to the skeptical epistemic attitudes of the dissents. See supra note 75. ↑
  79. See Harper Shalloe, “I Sexually Identify as an Attack Helicopter”, 6 TSQ 667, 667–68 (2019). ↑
  80. Grimm, 972 F.3d at 593; Adams, 968 F.3d at 1292. ↑
  81. See, e.g., Grimm, 972 F.3d at 608–10; Adams, 968 F.3d at 1291, 1302–04. ↑
  82. See Grimm, 972 F.3d at 616; Adams, 968 F.3d at 1305. While Grimm cited Bostock for its Title IX analysis, the court also found that Price Waterhouse permitted a distinct “sex-stereotyping” claim. Grimm, 972 F.3d at 617 n.15. But see supra Part III. ↑
  83. See Currah, supra note 39, at 446–47. ↑
  84. Bostock v. Clayton County, 140 S. Ct. 1731, 1828–29 (Kavanaugh, J., dissenting). ↑

Termites in the Master’s House: Abortion Rap and Florynce Kennedy’s Contributions to Racial and Gender Justice

Introduction

“[N]ever . . . take any shit from anyone.”1 1.Flo Kennedy, Color Me Flo: My Hard Life and Good Times 27 (1976).Show More This attitude guided radical Black feminist Florynce “Flo” Kennedy’s life and advocacy. Contemporaries recognized Kennedy as “an outspoken activist for the rights of African Americans, women, sex workers, and members of the LGBT community.”2 2.The Modern African American Political Thought Reader: From David Walker to Barack Obama 316 (Angela Jones ed., 2013).Show More In this way, Kennedy united social movements with divergent agendas. She believed that only through “unifying in struggle” could marginalized people achieve liberation.3 3.Id. at 317.Show More Though many might find this practice uncomfortable, Kennedy relished her work. Indeed, she reportedly remarked that “if you’re not living on the edge, then you’re taking up space.”4 4.Douglas Martin, Flo Kennedy, Feminist, Civil Rights Advocate and Flamboyant Gadfly, Is Dead at 84, N.Y. Times (Dec. 23, 2000), https://www.nytimes.com/2000/12/23/us/flo-kennedy-feminist-civil-rights-advocate-and-flamboyant-gadfly-is-dead-at-84.html [https://perma.cc/J6EQ-Y3YJ].Show More

Born in Kansas City, Missouri, on February 11, 1916,5 5.See id.Show More Kennedy made waves as both an undergraduate and law student at Columbia University, where she was one of the first Black women to receive a law degree.6 6.See Kennedy, supra note 1, at 39; Elizabeth Sepper & Deborah Dinner, Sex in Public, 129 Yale L.J. 78, 100 (2019) (observing that “Kennedy ultimately became one of the first African American female graduates of Columbia Law”).Show More As an undergraduate, Kennedy wrote an essay in which she argued that “[t]he similarities of the societal positions of women and Negroes are fundamental rather than superficial.”7 7.Kennedy, supra note 1, at 120.Show More This piece marked an early example of intersectional theory.8 8.See Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 9 (2011) (noting that Kennedy’s work “reflected and anticipated a flowering of social science scholarship in the 1940s and 1950s that analogized ‘women’ to ‘Negroes’”).Show More But Kennedy’s political advocacy extended beyond the classroom.

During her life, Kennedy advocated on behalf of sex workers;9 9.Kennedy, supra note 1, at 5–6 (contending that “a government that cannot provide full employment for women who don’t have degrees, and even those who do, has a pretty big nerve making the most lucrative occupation [sex work] a crime”).Show More promoted racial equity and diversity in the recording industry by litigating on behalf of Black artists, including Billie Holiday and Charlie Parker, and by protesting record companies’ discriminatory hiring practices;10 10.See id. at 47–49; id. at 52 (describing her time picketing Atlantic and Columbia Records with Young Activists Now, which included “smashing records on the sidewalk to get them to hire some of the Black and Puerto Rican teenagers . . . in after-school and summer jobs”).Show More and displayed persistent solidarity with the LGBTQ community.11 11.See id. at 3–4.Show More As an attorney, she defended Black radicals, including Assata Shakur.12 12.See Assata Shakur, Assata: An Autobiography 97–98 (1987).Show More She also challenged the Catholic Church’s tax-exempt status “on the grounds that it engaged in political activity by lobbying against more liberal abortion laws.”13 13.Kennedy, supra note 1, at 132.Show More A bold and innovative advocate, Kennedy used her law degree to protect the vulnerable and challenge the powerful.

Citing her frustration with the repressive nature of the judiciary, Kennedy eventually transitioned from legal advocacy to other forms of political activism.14 14.See Diane Schulder & Florynce Kennedy, Abortion Rap 98 (1971).Show More One of her most noteworthy actions was organizing a “pee-in” to protest the lack of women’s restrooms at Harvard University.15 15.SeeEric Grundhauser, The Great Harvard Pee-In of 1973, Atlas Obscura (Dec. 23, 2016), https://www.atlasobscura.com/articles/the-great-harvard-peein-of-1973 [https://perma.cc/8N8E-UP9L].Show More During her speech to protestors, Kennedy proclaimed Harvard “the asshole of the world.”16 16.Nicholas Lemann, Black Activist Advocates Student Support of Strike, Harv. Crimson (Mar. 14, 1973), https://www.thecrimson.com/article/1973/3/14/black-activist-advocates-student-support-of/ [https://perma.cc/29UU-XRBT].Show More She also compared women’s exclusion from the restrooms at Harvard to race-segregated bathrooms under Jim Crow.17 17.See Irene Davall, To Pee or Not To Pee, Sexism at Harvard, On the Issues (1990), https://www.ontheissuesmagazine.com/1990summer/summer1990_DAVALL.php [https://perma.cc/Z54R-S4FE].Show More As Kennedy spoke, students dumped buckets of water, but did not actually urinate, on the steps of Lowell Hall.18 18.Kennedy, supra note 1, at 81.Show More However, Kennedy also warned that if the Dean failed to provide women with access to a restroom, activists would return the next year “doing the real thing.”19 19.Grundhauser, supranote 15.Show More Though the pee-in’s immediate impact is uncertain, as of 2012, Harvard had ninety-one unisex bathrooms on its campus.20 20.See id.Show More Regardless of its direct impact, the pee-in exemplified Kennedy’s willingness to deploy unconventional—and often humorous—strategies to combat injustice.

When Kennedy died on December 21, 2000, her contemporaries publicly mourned her loss.21 21.See Martin, supra note 4.Show More Former New York City Mayor David N. Dinkins remembered Kennedy as a consummate champion of every “cause for the downtrodden.”22 22.Id.Show More Judge Emily Jane Goodman of the New York Supreme Court, a close friend of Kennedy’s, credited Kennedy with “show[ing] a whole generation of us the right way to live our lives.”23 23.Rebecca Traister, Good and Mad: The Revolutionary Power of Women’s Anger 111 (2018).Show More

Despite her long and prolific career as an advocate and speaker,24 24.See Kennedy, supra note 1, at 41–66.Show More few pieces of legal scholarship make more than a passing reference to Kennedy.25 25.SeeMary Ziegler, The Price of Privacy, 1973 to the Present, 37 Harv. J.L. & Gender 285, 293–94 (2014) (briefly discussing Kennedy’s writing in support of abortion rights); Amber Baylor, Centering Women in Prisoners’ Rights Litigation, 25 Mich. J. Gender & L. 109, 117 (2018) (devoting a few sentences to Kennedy’s representation of women prisoners at Bedford Hills state prison); Sepper & Dinner, supra note 6, at 138 (noting Kennedy’s contributions to the creation of women’s restrooms at Harvard). Kennedy’s legacy also remains underexplored in popular culture. SeeEmma Specter, The Best Parts of FX’s Mrs. America Are Its Lesser-Known Feminists, Vogue (May 19, 2020), https://www.vogue.com/article/mrs-america-lesser-known-feminists [https://perma.cc/F8GX-TJBA] (expressing dismay that Niecy Nash’s portrayal of Kennedy did not feature more prominently in the television series).Show More Although Sherie M. Randolph’s recent biography of Kennedy provides a historical account of Kennedy’s life, additional legal scholarship dedicated to Kennedy’s work is also warranted.26 26.See Sherie M. Randolph, Florynce “Flo” Kennedy: The Life of a Black Feminist Radical (2015).Show More Moreover, as underscored by Randolph, acknowledgment of Kennedy’s abortion access advocacy, which served as a model for later abortion rights litigation, including Roe v. Wade,27 27.410 U.S. 113 (1973).Show More “is absent from most histories of post-war feminism and the reproductive rights battle.”28 28.Randolph, supranote 26, at 168–69.Show More This Essay aims to fill that gap.

Contemporary emphasis on intersectional politics29 29.See Intersectional Feminism: What It Means and Why It Matters Right Now, UN Women (July 1, 2020), https://www.unwomen.org/en/news/stories/2020/6/explainer-intersectional-feminism-what-it-means-and-why-it-matters [https://perma.cc/T296-FD2Y].Show More and renewed concern for abortion access30 30.SeeZoe Williams, Ruth Bader Ginsburg’s Death Means Pro-choicers Have a Fight on Their Hands, Guardian (Sept. 22, 2020), https://www.theguardian.com/commentisfree­/2020/sep/22/ruth-bader-ginsburg-pro-choicers-abortion-us-presidential-election [https://per­ma.cc/AD8P-NM7B] (describing the 2020 election as “among many other things, . . . a referendum on abortion”); Becca Andrews, We Need To Save Abortion Rights. But Roe Isn’t Enough—and RBG Knew It., Mother Jones (Sept. 21, 2020), https://www.motherjones.com/­politics/2020/09/ruth-bader-ginsburg-abor­tion-rights-roe/ [https://perma.cc/KH56-WFY6] (observing that Justice Ruth Bader Ginsburg’s death leaves the constitutional right to an abortion vulnerable to attack).Show More render a review of Kennedy’s legacy especially appropriate. As an early proponent of intersectional theory, Kennedy sets an important example for contemporary racial and gender justice advocates.31 31.SeeCaroline Chiappetti, Note, Winning the Battle but Losing the War: The Birth and Death of Intersecting Notions of Race and Sex Discrimination inWhite v. Crook,52 Harv. C.R.-C.L. L. Rev. 469, 488 n.114 (2017) (observing that in addition to attorney Pauli Murray, “[o]thers to make the analogy between race and sex included Columbia college student Flo Kennedy in a 1946 paper written for a sociology course”).Show More She displayed particularly masterful advocacy in relation to abortion access, seeking to legalize abortion “in all fifty states.”32 32.Randolph, supra note 26, at 168.Show More More specifically, Kennedy’s application of a reproductive justice framework, emphasis on intersectionality, and commitment to centering women’s experiences distinguished her activism for abortion access. Thus, Kennedy can serve as a role model for contemporary reproductive justice activists.

Revisiting Kennedy’s contributions is also timely given today’s broader political context. Currently, Black women such as Maxine Waters, Stacey Abrams, and Kamala Harris lead the nation. These women often face harsher backlash for perceived missteps33 33.See Traister, supra note 23, at 53–54 (recounting how media sites reported that Congresswoman Waters experienced a “meltdown” and came “unhinged” when she reclaimed her time while questioning Treasury Secretary Steve Mnuchin); see also Trina Jones & Kimberly Jade Norwood, Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman, 102 Iowa L. Rev. 2017, 2057 (2017) (observing that when Black women face aggressive encounters, particularly those fueled by stereotypes or biases, “they risk backlash from the aggressor (and possibly others)[,] and . . . they may ultimately be blamed for the encounter” (footnote omitted)); Laura Morgan Roberts, Anthony J. Mayo, Robin J. Ely & David A. Thomas, Beating the Odds, Harv. Bus. Rev.(Mar.–Apr. 2018), https://hbr.org/2018/03/beating-the-odds [https://perma.cc/9DKS-ZGHK] (noting that Black women often experience “hypervisibility” in professional settings, prompting “an inhibiting and potentially limiting self-consciousness”).Show More and receive less credit for their successes than their white or male counterparts.34 34.See Patricia A. Broussard, Unbowed, Unbroken, and Unsung: The Unrecognized Contributions of African American Women in Social Movements, Politics, and the Maintenance of Democracy, 25 Wm. & Mary J. Race Gender & Soc. Just. 631,676 (2019) (“The black female body and intellect have been used as weapons against black women and have been used to portray them as less intelligent, less truthful, less moral, and less valuable than white men and women.”); Roberts et al., supra note 33 (underscoring that in business, “black women are sometimes made to feel as though they’re invisible[,]” and finding that some Black women professionals “report having been mistaken for secretaries or even members of the waitstaff when starting new jobs”); Rachel Thomas et al., McKinsey & Co., Women in the Workplace 2020, at 26, 28 (2020), https://wiw-report.s3.amazonaws.com/Women_in_the_Workplace_2020.pdf [https://perma.cc/CC95-RAFQ] (finding that, based on survey data, “Black women are less likely to feel supported at work during Covid-19” and ”are promoted more slowly than other groups of employees and are significantly underrepresented in senior leadership”); Zuhairah Washington & Laura Morgan Roberts, Women of Color Get Less Support at Work. Here’s How Managers Can Change That, Harv. Bus. Rev. (Mar. 4, 2019), https://hbr.org/2019/03/women-of-color-get-less-support-at-work-heres-how-managers-can-change-that [https://perma.cc/4FGS-ERMP] (reporting that “despite representing about 18% of the U.S. population, women of color represented only 4% of C-Level positions in 2018, falling far below white men (68%) and white women (19%)”).Show More Kennedy’s life provides occasion to reflect on these disparities.

Part I of this Essay discusses Kennedy’s advocacy for abortion access. Part II examines applications of Kennedy’s legacy to contemporary social justice movements. Part III concludes by emphasizing that Kennedy’s life and career can serve as a model for modern reproductive justice activists.

I. Kennedy’s Advocacy and the Dual Dimensions of Black Women’s Activism

Celebrated Black feminist scholar Patricia Hill Collins identifies two dimensions to Black women’s activism. First, “struggles for group survival,” which “consist of actions taken to create Black female spheres of influence within existing social structures.”35 35.Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment 204 (2d ed. 2000).Show More Second, “struggles for institutional transformation” comprised of “those efforts to change discriminatory policies and procedures” of prominent social institutions, such as the government and the workplace.36 36.Id.Show More In her abortion activism, Kennedy advocated along both dimensions.

A. Group Survival: Responding to the “Black Genocide” Argument

Through her advocacy for abortion rights, Kennedy demonstrated her commitment to Black women’s group survival. In 1969, Kennedy, collaborating with Diane Schulder, represented women challenging New York’s abortion laws.37 37.See Schulder & Kennedy, supranote 14, at xv–xvi.Show More During the trial, Kennedy reportedly “pushed the limits of courtroom behavior to make points about social and cultural stigma surrounding women’s roles, sexuality, and abortion.”38 38.Cynthia Greenlee, How Abortion Storytelling Was Born, Rewire News (Jan. 22, 2016), https://rewire.news/article/2016/01/22/abortion-storytelling-born/ [https://perma.cc/5EAH-W6F8].Show More Indeed, when counsel for one of the intervenors objected throughout a line of questions, Kennedy moved to exclude him.39 39.See Schulder & Kennedy, supranote 14, at 81.Show More Speaking directly to counsel for the intervenors, Kennedy intoned, “You have no business in the case, you are not entitled to be in this case, and I am simply not going to have my witness intimidated by these continual interruptions.”40 40.Id.Show More

Kennedy’s zealous advocacy asserted that “[w]omen were the experts of their own lives.”41 41.Greenlee, supra note 38.Show More She viewed the “case as a very definitive platform for exploring the extent of the legalized oppression of women.”42 42.Randolph,supra note 26, at 174 (piecing together quotes from the trial transcript from Schulder & Kennedy, supra note 14, at 32–35).Show More Her representation established a template for future challenges to abortion restrictions, including Roe v. Wade.43 43.See id. at 176.Show More Contemporary activists continue to employ Kennedy’s approach when organizing modern “abortion story-sharing” initiatives.44 44.Greenlee, supra note 38.Show More

In 1970, New York reformed its abortion laws, rendering the suit moot.45 45.See Schulder & Kennedy, supranote 14, at 178.Show More But Kennedy and other activists remained concerned. This inspired Kennedy and Schulder to write Abortion Rap.46 46.Greenlee, supranote 38.Show More In this book, Kennedy and Schulder aimed to demonstrate “how the abortion fight is relevant to the fight for freedom for women.”47 47.Schulder & Kennedy, supra note 14, at xvi.Show More To make their case before the general public, “a people’s tribunal,”48 48.Id. at xv.Show More Kennedy and Schulder presented stories of women who had obtained abortions;49 49.See id. at 6–88.Show More relayed an overview of the case;50 50.See id. at 89–102.Show More analyzed and challenged expert testimony;51 51.See id. at 103–06.Show More and responded to common criticisms of the right to abortion.52 52.See id. at xvi, 151–61 (responding to the argument that abortion propels Black Genocide).Show More The pair called on the Court to find the restrictions unconstitutional.53 53.See id. at 160, 199.Show More

In the chapter entitled “Black Genocide,” Kennedy brought feminism to bear on the Black Power movement.54 54.See The Modern African American Political Thought Reader: From David Walker to Barack Obama, supra note 2, at 317.Show More More specifically, Kennedy challenged the Black Panthers’ opposition to abortion and birth control.55 55.See id. at 318.Show More She framed Black women’s struggle for reproductive justice in terms of the Black Panthers’ overarching desire for “far less government interference in the lives of black people.”56 56.Id.Show More Citing “religious programming,” the persistence of “the slaver’s social values,” and “male chauvinism,” Kennedy attacked the foundations of the Black Panthers’ objections to abortion.57 57.Schulder & Kennedy, supra note 14, at 160.Show More

She also emphasized Black women’s expertise. Specifically, Kennedy observed that several Black women, including “Shirley Chisholm, first Black congresswoman, and the many Black women who contacted [Kennedy and Schulder] for abortion information,” supported access to abortion.58 58.Id. at 156.Show More For too long, Kennedy and Schulder observed, “the nonwhite, and the urban and rural poor,” bore the brunt of “enforced limitation on reproduction,” which amounted to “oppression of women” by the state.59 59.Id. at 185.Show More Weaving together these strands, Kennedy concluded that Black men needed to defer to Black women’s experiences and preferences. It was time, Kennedy argued, for the Black Panthers to support access to abortion and ensure that “free choice prevailed.”60 60.Id. at 161.Show More

Critically, Kennedy’s emphasis on Black women’s autonomy coincided with a concern for their security. During the trial proceedings, Kennedy and Schulder did not ask Black women to publicly testify, as they “feared for their safety.”61 61.Randolph, supra note 26, at 178.Show More Kennedy and Schulder recognized that Black women faced “hostile responses both within and outside the black community” for seeking abortions.62 62.Id.Show More Though Kennedy drew on Black women’s experiences in her advocacy, she did so in the aggregate, preventing any one Black woman from facing violent backlash.63 63.See Schulder & Kennedy, supra note 14, at 156.Show More In so doing, Kennedy exemplified the first prong of Collins’s formulation of Black women’s activism: ensuring Black women’s survival.64 64.See Collins, supra note 35, at 204.Show More

Additionally, Kennedy established abortion access as essential to the Black Power movement. Kennedy acknowledged the “bad stench of racism” attached to some family-planning activities.65 65.Schulder & Kennedy, supra note 14, at 158.Show More But she also underscored that “[w]omen hampered by children tend not to be in the vanguard” of the Black Power movement.66 66.Id. at 159.Show More Perhaps most pointedly, Kennedy emphasized that “Friends of the Fetus in the Black Community,” an anti-abortion group, “have permitted a number of potential revolutionaries to languish in orphanages and foster homes, despite widely broadcast pleas for rescue (for revolutionary or whatever purpose).”67 67.Id.at 160.Show More In other words, Kennedy concluded that the lack of abortion access actively harmed Black children. Accordingly, she argued that the repeal of abortion laws was necessary to prevent “state interference in the personal lives of Black people.”68 68.Id. at 161.Show More Hence, Kennedy established access to abortion as essential to both reproductive and racial justice.69 69.See also Ziegler, supra note 25, at 316 (underscoring the efficacy of Kennedy’s arguments linking Black women’s access to abortion and contraception to Black liberation).Show More

Kennedy’s advocacy “directly challenge[d] the legal and customary rules governing African-American women’s subordination.”70 70.Collins, supra note 35, at 204.Show More In the process, she furthered “[t]he black feminist ‘vanguard center’ ideology.”71 71.Benita Roth, “Organizing One’s Own” as Good Politics: Second Wave Feminists and the Meaning of Coalition, in Strategic Alliances: Coalition Building and Social Movements 99, 110 (Nella Van Dyke & Holly J. McCammon eds., 2010).Show More This ideology recognized that Black women’s multiple marginalized identities “best positioned [Black women] to lead a movement that would liberate all those dominated.”72 72.Id.Show More Kennedy took this call seriously.

In arguing for women’s liberation, Kennedy cautioned white feminists “not to use the Black women’s plight to make their case for them.”73 73.Schulder & Kennedy, supra note 14, at 161.Show More This is consistent with the second wave feminism’s “ethos of organizing one’s own.”74 74.Roth, supra note 71, at 105.Show More Activists initially adopted this strategy during the civil rights movement. Specifically, the Student Non-Violent Coordinating Committee introduced this model, as Black leaders dismissed white demonstrators from the group, calling on them to concentrate on combating racism within the white community.75 75.See id. at 107.Show More Women’s liberation activists still appreciated the gravity of racism.76 76.See id. at 108.Show More But most organizing occurred in intra-, not inter-, racial settings.77 77.See id. at 109–10.Show More Many contemporary social movements continue to organize around a single identity issue.78 78.See Veronica Terriquez, Intersectional Mobilization, Social Movement Spillover, and Queer Youth Leadership in the Immigrant Rights Movement, 62 Soc. Probs. 343, 346 (2015).Show More Thus, understanding intragroup organizing dynamics remains critical.

In sum, Kennedy’s work created “Black female spheres of influence within existing social structures” of the Black Power movement.79 79.Collins, supra note 35, at 204.Show More In so doing, Kennedy “equip[ped] Blacks”—both men and women—“to struggle.”80 80.Id.Show More Consequently, Kennedy’s advocacy promoted Black women’s “individual and collective empowerment.”81 81.Id.Show More By extension, she advanced the first dimension of Black women’s activism.82 82.See id.Show More

B. Institutional Transformation: Abortion Access and Intersectional Justice

Abortion Rap also sought to effect change along the second dimension of Black women’s activism identified by Collins: institutional transformation.83 83.See id.Show More Focused on “chang[ing] discriminatory policies and procedures of government, schools, the workplace, the media, stores, and other social institutions,” this dimension of Black women’s activism depends “on coalition-building strategies.”84 84.Id.Show More It is true that the chapter entitled “Black Genocide” targeted men in the Black Power movement.85 85.Seesupra Section I.A.Show More But understood in its entirety, Abortion Rap aimed to raze the broader legal landscape wherein “[r]estrictive abortions laws” remained on the books of “most states.”86 86.Schulder & Kennedy, supranote 14,at xvi.Show More The results were transformative.

First, Kennedy emphasized the connection between racial justice and abortion access. In contrast to the mainstream media’s practice of “whitewashing” the feminist movement,87 87.Sepper & Dinner, supra note 6, at 126 n.279.Show More Abortion Rap foregrounded the contributions of Black and Puerto Rican women.88 88.See Schulder & Kennedy, supranote 14, at 156 (emphasizing that “[a]t least three small groups of Black and Puerto Rican Women’s Liberation groups participated in plans” for “demonstration against abortion oppression”).Show More Moreover, Kennedy and Schulder gestured towards the formation of a broad women’s coalition to support abortion rights.89 89.See id. at 158.Show More Black and white women needed to form their “own ideas and strategies.”90 90.Id. at 161.Show More But no matter their race, in Kennedy’s view, all women deserved “the choice of deciding whether they wish to have babies.”91 91.Id. at 160.Show More This provided grounds for collaboration across racial lines.

Second, Abortion Rap anticipated contemporary critiques of the Supreme Court’s abortion jurisprudence, as it centered race- and class-based discrimination concerns.92 92.SeeKhiara M. Bridges, Elision and Erasure: Race, Class, and Genderin Harris v. McRae, in Reproductive Rights and Justice Stories 117, 118 (Melissa Murray, Katherine Shaw & Reva B. Siegal eds., 2019) (observing “that poor women of color bear the brunt of the Hyde Amendment,” Pub. L. No. 96-123, § 109, 93 Stat. 923, 926 (1979), which bars federal funding of abortion); Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 54 (2017) (underscoring that “neither the Hyde Amendment nor the criminalization of the reproductive lives of poor women has been a major issue for mainstream reproductive rights organizations in the United States until very recently”).Show More More specifically, Kennedy and Schulder acknowledged the possibility of forced abortion or sterilization.93 93.See Schulder & Kennedy, supra note 14, at 160.Show More This threat was no mere theoretical specter.94 94.See id. (observing that “[e]nforced sterilization . . . has often been ordered in the case of welfare mothers, and has been used as well as a precondition for an abortion”).Show More In the 1970s, “women of color, Medicaid recipients, and women receiving welfare benefits were sterilized at” high rates, such that “sterilization was the fastest growing method of birth control in this era.”95 95.Ross & Solinger, supra note 92, at 51.Show More Accordingly, Kennedy and Schulder recognized that “there might easily come a time when all women will have to fight against the imposition of abortions.”96 96.Schulder & Kennedy, supra note 14, at 160.Show More But that time had not yet come. Rather, the pair emphasized that activists should focus on securing “a finding of unconstitutionality” for abortion restrictions.97 97.Id. at 184.Show More Though not a panacea, Kennedy and Schulder believed that such a development “would surely minimize the proliferation of government regulations, guidelines, amendments, and rules” restricting reproductive freedom.98 98.Id.Show More

Finally, Kennedy and Schulder cautioned that despite legislative reform, “the struggle [was] just beginning.”99 99.Id. at 166.Show More The pair recognized that “[f]reedom for women is still dependent upon a change in the power structure of male-dominated institutions.”100 100.Id.Show More The Supreme Court’s recent decision in June Medical Services L.L.C. v. Russo underscores the prescient nature of this critique.101 101.140 S. Ct. 2103, 2112–13 (2020) (holding that a Louisiana law requiring doctors who perform abortions to gain admitting privileges at a nearby hospital was unconstitutional).Show More Indeed, “women . . . are almost totally absent” from this and other recent abortion rights decisions by the Court.102 102.Dahlia Lithwick, Women Are Being Written out of Abortion Jurisprudence, Slate (July 2, 2020), https://slate.com/news-and-politics/2020/07/abortion-supreme-court-women.html [https://perma.cc/H8BY-J6MB]; see also id. (observing that in recent abortion cases, women “are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer”).Show More This absence is more than a symbolic failing. It also coincides with the passage of an unprecedented number of state abortion restrictions.103 103.See Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood 8 (2020) (“During the period 2010–15, state legislatures proposed and succeeded in enacting more regulations to restrict abortion and contraceptive access than in the prior three decades combined.”).Show More As a result, abortion is becoming more and more inaccessible.104 104.See K.K. Rebecca Lai & Jugal K. Patel, For Millions of American Women, Abortion Access Is out of Reach, N.Y. Times (May 31, 2019), https://www.nytimes.com/interactive/­2019/05/31/us/abortion-clinics-map.html [https://perma.cc/VEQ8-DBJR].Show More Today, then, Kennedy’s warning from 1971 seems prophetic. Abortion Rap is more than the musings of a couple of radicals. It also reflects the vision of a pair of American Cassandras.105 105.Cassandra is a woman from Greek mythology whose prophetic warnings—which came true—went unheeded. See Cassandra, Britannica.com, https://www.britannica.com/topic/­Cassandra-Greek-mythology [https://perma.cc/3N3U-VV6Z] (last visited Dec. 28, 2020).Show More

Ultimately, Kennedy worked to dismantle “the wringer” of systemic oppression,106 106.Kennedy, supra note 1, at 134, 136.Show More what civil rights activist Audre Lorde termed “the master’s house.”107 107.Audre Lorde, The Master’s Tools Will Never Dismantle the Master’s House,History Is a Weapon (1979), https://www.historyisaweapon.com/defcon1/lordedismantle.html [https://­perma.cc/U3JZ-NWNM].Show More Lorde cautioned that the master’s tools would never dismantle the master’s house.108 108.Id.Show More But Kennedy saw no need for fancy tools. She recognized the relative political powerlessness of marginalized individuals, describing the oppressed as “termites.”109 109.Kennedy, supra note 1, at 140.Show More Yet she also recognized that “if all the termites got together, the house would fall down.”110 110.Id.Show More Kennedy understood that bringing down institutions of oppression—most commonly the state, but also universities and other entities of centralized power111 111.SeeLemann, supranote 16 (describing Kennedy’s activism on behalf of students protesting Harvard’s lack of women’s restrooms).Show More—requires collective action. For Kennedy, this action depended on forming an intersectional coalition.112 112.SeeRandolph, supra note 26, at 223 (observing that “Kennedy’s advocacy of inclusive coalitions, especially those among white women, black women, and black men, had been part of her politics since the 1950s”).Show More

II. Lessons from Kennedy’s Life

A. Advancing Abortion Access Under a Reproductive Justice Framework

In the past decade, states have passed over 400 laws restricting access to abortion.113 113.See Nora Ellman, State Actions Undermining Abortion Rights in 2020, Ctr. for Am. Progress (Aug. 27, 2020), https://www.americanprogress.org/issues/women/­reports/2020/08/27/489786/state-actions-undermining-abortion-rights-2020/ [https://perma.cc/R2ZC-FRYG].Show More Alongside the recent death of United States Supreme Court Justice Ruth Bader Ginsburg, a staunch defender of reproductive rights, these developments jeopardize abortion access across the country.114 114.SeeAlexandra Svokos, Is Ginsburg’s Death the End of Roe v. Wade? This Time, Some Experts Say, It Could Be.,ABC News (Sept. 21, 2020), https://abcnews.go.com/politics/ginsburgs-death-end-roe-wade-time-experts/story?id=73119646/ [https://perma.cc/5HL6-BFS7].Show More Kennedy successfully advocated for abortion access in the pre-Roe v. Wade world.115 115.See Randolph, supranote 26, at 168–69; see also 410 U.S. 113 (1973) (holding that a woman possesses a fundamental right to terminate her pregnancy by abortion).Show More Channeling her legacy can empower contemporary reproductive justice activists to navigate a potential post-Roe future.116 116.See David Crary, Ginsburg’s Death Puts Roe v. Wade on the Ballot in November, AP News (Sept. 20, 2020), https://apnews.com/577f2ad123b356b47c801525ea4688be (discussing the potential overturning of Roe in light of Justice Ginsburg’s death).Show More

First, Kennedy’s work underscores the importance of adopting a reproductive justice—not just a reproductive rights—framework. The concept of reproductive justice was not formalized until the 1990s.117 117.See Ross & Solinger, supra note 92, at 56.Show More Nevertheless, Kennedy’s discussion of abortion access alongside forced sterilization reflects reproductive justice concerns.118 118.See Schulder & Kennedy, supra note 14, at 160.Show More Indeed, reproductive justice focuses on protecting “the right not to have a child” and “the right to have a child.”119 119.Ross & Solinger, supra note 92, at 9.Show More This expands on the “traditional reproductive rights” framework’s narrow focus on the rights to “abortion and contraception.”120 120.Marie-Amélie George, Queering Reproductive Justice, 54 U. Rich. L. Rev. 671, 680 (2020).Show More By extension, this approach better advances women’s equality and liberty.

Second, Kennedy’s legacy highlights the importance of intersectional advocacy. For too long, the reproductive rights movement has focused on the rights of middle-class and wealthy white women.121 121.SeeRoss & Solinger, supra note 92, at 47–48 (noting that “white advocates of legal and accessible contraception and abortion were often focused solely . . . on women’s right to prevent conception and unwanted births”).Show More This ignores the struggles faced by poor women,122 122.See id. at 51, 53–54 (underscoring the barriers poor women face when trying to exercise reproductive freedom).Show More women of color,123 123.See id. at 54 (discussing advocacy to address “the serious limits of choice” for women of color).Show More LGBTQ individuals,124 124.See George, supra note 120, at 673 (underscoring the shared concerns between the reproductive rights and LGBTQ rights movements).Show More and people with multiple marginalized identities. Kennedy recognized the link between distinct forms of oppression.125 125.See The Modern African American Political Thought Reader: From David Walker to Barack Obama, supra note 2, at 317 (emphasizing Kennedy’s theory of hegemony of the oppressed).Show More This recognition empowered Kennedy to build a broad coalition in support of reproductive rights.126 126.See id.Show More Adapting Kennedy’s approach, then, would enable contemporary reproductive justice advocates to better safeguard a host of reproductive freedoms—including, but not limited to, the right to a safe and accessible abortion.

Finally, Kennedy’s work highlights the importance of centering the voices of women. The erasure of women from discussion of abortion jurisprudence is not new.127 127.SeeBarbara J. Cox, Refocusing Abortion Jurisprudence To Include the Woman: A Response to Bopp and Coleson and Webster v. Reproductive Health Services, 1990 Utah L. Rev. 543, 545 (underscoring scholars’ failure to include “any reference to the future harm to women who are prohibited from legal access to abortion”).Show More But it is concerning.128 128.See Goodwin, supranote 103, at 4–5 (discussing heightened “attacks on women and surveillance of their bodies” in recent years).Show More Specifically, this erasure deprives women of agency, forcing them “to hope that powerful men will make really good choices on [their] behalf.”129 129.Lithwick, supra note 102.Show More To prevent further omission of women’s experiences from abortion jurisprudence, advocates can channel Kennedy’s influence by affirming a woman’s inherent right to control decisions about her body.130 130.See Greenlee, supra note 38.Show More Centering the experiences of those seeking abortions can highlight the need for legal reform, providing grounds for legislatures and courts to affirm and strengthen reproductive rights protections.131 131.See id.Show More Thus, Kennedy’s Abortion Rap provides a critical blueprint for contemporary reproductive justice advocates.

What would the Court’s reproductive rights jurisprudence look like if it were guided by Kennedy’s legacy? We can only speculate. But given Kennedy’s commitment to intersectionality, under this framework, the Court would conclude that economic barriers to abortion, such as the Hyde Amendment,132 132.Pub. L. No. 96-123, § 109, 93 Stat. 923, 926 (1979) (barring federal funding of abortions for situations outside rape, incest, or risk to the mother’s life); see also Harris v. McRae, 448 U.S. 297, 326 (1980) (affirming the constitutionality of the Hyde Amendment).Show More violate the Constitution.133 133.Schulder & Kennedy,supra note 14, at 184 (criticizing “opponents of free abortions”).Show More Similarly, the Court would hold that coerced sterilization is unconstitutional.134 134.See Skinner v.Oklahoma, 316 U.S. 535, 542 (1942) (striking down a statute that authorized coerced sterilization in the context of criminal sentencing, but expressly declining to overturn Buck v. Bell, 274 U.S. 200, 207 (1927), which held that Virginia’s compulsory sterilization program for institutionalized people with mental disabilities was constitutional); see also Miranda Bryant, Allegations of Unwanted ICE Hysterectomies Recall Grim Time in US History, Guardian (Sept. 21, 2020), https://www.theguardian.com/us-news/2020/sep/21/unwanted-hysterectomy-allegati­ons-ice-georgia-immigration (reporting the performance of unsolicited hysterectomies on women detained by United States Immigration and Customs Enforcement).Show More And the decisions would focus on the experiences of women and other people seeking to safeguard their reproductive liberties—not the government, not the doctors, not those intervening on behalf of fetuses.135 135.See Greenlee, supranote 38.Show More Such an approach would advance both liberty and equality along intersectional axes.136 136.See Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 304 (1997) (observing the need to recognize “the essential relationship between liberty and equality” to advance reproductive justice for Black women).Show More

B. Black Women’s Invisibility: A Call To Amplify Black Women’s Voices

During her lifetime, Kennedy’s race led to her intentional exclusion from media reports. For instance, Kennedy is conspicuously absent from photographs and news reports of a press event for Abortion Rap.137 137.See Sepper & Dinner, supranote 6, at 126 n.279.Show More This is consistent with the media’s pattern of “whitewashing [Kennedy] from other events where she was key” due to racism.138 138.Id.Show More Indeed, prior to a women’s liberation meeting at which Kennedy and Gloria Steinem were scheduled to speak, Betty Friedan reportedly called Steinem to insist that she disinvite Kennedy from the event, and she referred to Kennedy using a racial slur.139 139.See Traister, supra note 23, at 111.Show More Even within the feminist movement, then, Kennedy faced exclusion and resistance.

Kennedy’s colorful language also contributed to her erasure. Directing her ire at members of the clergy and judges,140 140.See Kennedy, supranote 1, at 8 (“It’s interesting to speculate how it developed that in two of the most anti-feminist institutions, the church and the law court, the men are wearing the dresses.”).Show More lawyers,141 141.See id. at 129 (“The lawyer . . . is analogous to a prostitute. The difference between the two is simple. The prostitute is honest . . . .”).Show More and even President Richard Nixon,142 142.See id. at 132 (“Humanism that extends to Nixon is like people picnicking on the beach while others are drowning in the ocean.”).Show More Kennedy refused to pull any punches. Her praxis boiled down to “kicking ass.”143 143.Id. at 14.Show More Kennedy believed in “[k]icking ass . . . where an ass is protecting the System . . . regardless of the sex, the ethnicity, or the charm of the oppressor’s agent.”144 144.Id. at 142.Show More As Gloria Steinem observed, Kennedy used her “humor [to] work for change, not against it.”145 145.Id. at 140 (emphasis added); see also id. at 6 (defending prostitution by observing that “to my knowledge, no one has ever died of a blow job”).Show More No matter the backlash. This style led People magazine to dub Kennedy “the biggest, loudest and, indisputably, the rudest mouth on the battleground” for radical feminist politics.146 146.Patricia Burstein, Lawyer Flo Kennedy Enjoys Her Reputation as Radicalism’s Rudest Mouth, People Mag. (Apr. 14, 1975), https://people.com/archive/lawyer-flo-kennedy-enjoys-her-reputation-as-radicalisms-rudest-mouth-vol-3-no-14/ [https://perma.cc/Y8RZ-3KP9].Show More It also contributed to Kennedy’s exclusion from accounts of the social justice movements she led.

The relative paucity of scholarship on Kennedy’s activism is consistent with the political phenomenon of treating Black women as invisible. Despite Black women’s critical contributions to social movements, they account for a disproportionately low number of elected officials.147 147.See Broussard, supra note 34, at 670.Show More Politically, “Black women became invisible through their dual minority status and its treatment by law and society.”148 148.Angela Mae Kupenda, Letitia Simmons Johnson & Ramona Seabron-Williams, Political Invisibility of Black Women: Still Suspect but No Suspect Class, 50 Washburn L.J. 109, 111 (2010).Show More Failure to account for the particular inequities Black women confront contributes to a host of problems,149 149.See id. at 112.Show More including “anti-Black misogyny” (“misogynoir”),150 150.Moya Bailey & Trudy, On Misogynoir: Citation, Erasure, and Plagiarism, 18 Feminist Media Stud. 762, 762 (2018).Show More mistreatment by the medical system,151 151.See Emily E. Petersen et al., Racial/Ethnic Disparities in Pregnancy-Related Deaths—United States, 2007–2016, 68 Morbidity & Mortality Wkly. Rep. 762, 762 (2019) (documenting the disproportionately high Black maternal mortality rate); Roberts, supranote 136, at 7 (detailing government policies aimed at curbing Black women’s fertility).Show More and murder by law enforcement officials.152 152.See Treva Lindsey, Black Women Have Consistently Been Trailblazers for Social Change. Why Are They So Often Relegated to the Margins?,Time (July 22, 2020), https://time.com/5869662/black-women-social-change/ [https://perma.cc/AWM7-N4RU].Show More Moreover, “more than sixty thousand black women are missing in America.”153 153.Christopher Lebron, The Invisibility of Black Women, Bos. Rev. (Jan. 15, 2016), http://bostonreview.net/race-literature-culture-gender-sexuality-arts-society/christopher-lebron-invisibility-black-women/ [https://perma.cc/AD44-6SWB].Show More This means that despite comprising less than ten percent of the United States’ population, Black women account for “nearly 37 percent of missing women.”154 154.Id.Show More In other words: Black women’s political erasure is not just a dignitary harm. Rather, reduced visibility correlates with heightened risk of bodily injury, including death.155 155.SeeRobin Young & Serena McMahon, #SayHerName Puts Spotlight on Black Women Killed by Police, WBUR (June 16, 2020), https://www.wbur.org/hereandnow/2020/06/16/­black-women-deaths-protests [https://perma.cc/NR73-DCXD] (discussing the #SayHerName campaign’s attempts to draw attention to Black women murdered by law enforcement).Show More To address these injustices, society must first acknowledge them. Thus, highlighting Black women’s experiences is critical to addressing gender- and race-based violence.

Black women’s anger is also consistently politicized. Regarded as “irrational, crazy, out of touch, entitled, disruptive, and not team players,” Black women who voice their discontent face dismissal and disparagement.156 156.Brittney Cooper, Eloquent Rage: A Black Feminist Discovers Her Superpower 2–3 (2018).Show More Perceived as “inconvenient citizens,”157 157.Id. at 3.Show More “Angry Black Women” face disproportionate censure for their activism.158 158.See Traister, supra note 23, at 67–79 (detailing the racist attacks on Michelle Obama and Maxine Waters in response to their political advocacy).Show More No wonder, then, that journalists and scholars often elide Kennedy’s contributions. How easy, under this racist and sexist framework, to dismiss Kennedy’s “radical, outspoken, and provocative rhetoric” as just the words of another “Angry Black Woman.”159 159.Grundhauser, supra note 15.Show More

Dismissal of Kennedy’s contributions on the basis of her fiery speech is misguided. As discussed above, Kennedy’s rhetoric served as a tool of survival.160 160.See supra Part I; see alsoAudre Lorde, The Uses of Anger, 9 Women’s Stud. Q. 7, 9 (1981)(“My anger has meant pain to me but it has also meant survival . . . .”).Show More Employing seemingly outrageous language enabled Kennedy to highlight the true ugliness in society: the exploitation of people through “the wringer” of the system.161 161.Kennedy, supra note 1, at 134.Show More Her “undisguised anger” constituted “a rhetorical super-power.”162 162.Traister, supranote 23, at 110.Show More Through displaying her righteous fury, Kennedy inspired others to fight against oppression.163 163.See id.Show More

Today, erasure of perceived “Angry Black Women” continues to exacerbate inequality.164 164.SeeBroussard, supranote 34, at 675 (underscoring that the stereotyping of Black women is “used to maintain a status quo system that benefits those who seek to obfuscate the contributions of black women”).Show More Movements such as #SayHerName have attempted to foreground Black women’s experiences,165 165.SeeKimberlé Williams Crenshaw & Andrea J. Ritchie, Afr. Am. Pol’y F., Say Her Name: Resisting Police Brutality Against Black Women 30 (2015), http://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/560c068ee4b0af26f72741df/1443628686535/AAPF_SMN_Brief_Full_singles-min.pdf [https://perma.cc/S5SP-J7TT].Show More but additional work is needed to dismantle this sexist, racist trope. Rage is constructive, not just destructive.166 166.See Cooper, supranote 156, at 273 (“[R]age can help us build things, too. The clarity that comes from rage should also tell us what kind of world we want to see, not just what kind of things we want to get rid of.”).Show More To build a better world, society must stop reducing Black women to hidden figures of social movements.167 167.SeeMargot Lee Shetterly, Hidden Figures: The American Dream and the Untold Story of the Black Women Mathematicians Who Helped Win the Space Race (2016) (exploring the contributions of Black women scientists at NASA).Show More Recognition is not just a formality. Rather, recognition leads to liberation. Full recognition of an individual’s humanity is necessary to ensure that she is “fully free.”168 168.Isaiah Berlin, Political Liberty and Pluralism: Two Concepts of Liberty, in The Proper Study of Mankind: An Anthology of Essays 191, 228 (Henry Hardy & Roger Hausheer eds., 1997).Show More Thus, to secure equality, and with it, liberty, we must celebrate Black women leaders.169 169.See generally Ronald Dworkin, A Matter of Principle 203 (1985) (noting that liberalism requires “that human beings must be treated as equals by their government, not because there is no right and wrong in political morality, but because that is what is right”).Show More Honoring Kennedy’s legacy is a good place to start.

Conclusion

Florynce Kennedy significantly advanced racial and gender justice in the United States. As demonstrated by her abortion access advocacy, Kennedy’s contributions to social justice typify the two dimensions of Black women’s activism identified by Patricia Hill Collins. Kennedy’s fearlessness can galvanize contemporary activists. Whether one commits to “kicking ass”170 170.Kennedy, supra note 1, at 14.Show More or merely endeavors “not to lead an oatmeal existence,”171 171.Id. at 132.Show More Kennedy provides ample inspiration. Following her lead, contemporary reproductive justice activists can safeguard abortion rights while furthering broader racial and gender justice initiatives.

  1. * J.D. Candidate 2021, University of Virginia School of Law. I would like to thank the editors of the Virginia Law Review for their helpful editing assistance; Anna Cecile Pepper for her thoughtful comments throughout the revision process; AD, TF, HK, AL, and MR for their feedback and encouragement; and my family for their steadfast support. All errors are my own.  ↑
  2. Flo Kennedy, Color Me Flo: My Hard Life and Good Times 27 (1976). ↑
  3. The Modern African American Political Thought Reader: From David Walker to Barack Obama 316 (Angela Jones ed., 2013). ↑
  4. Id. at 317. ↑
  5. Douglas Martin, Flo Kennedy, Feminist, Civil Rights Advocate and Flamboyant Gadfly, Is Dead at 84, N.Y. Times (Dec. 23, 2000), https://www.nytimes.com/2000/12/23/us/flo-kennedy-feminist-civil-rights-advocate-and-flamboyant-gadfly-is-dead-at-84.html [https://perma.cc/J6EQ-Y3YJ]. ↑
  6. See id. ↑
  7. See Kennedy, supra note 1, at 39; Elizabeth Sepper & Deborah Dinner, Sex in Public,
    129

    Yale L.J.

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    (observing that “Kennedy ultimately became one of the first African American female graduates of Columbia Law”). ↑

  8. Kennedy, supra note 1, at 120. ↑
  9. See Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution 9 (2011) (noting that Kennedy’s work “reflected and anticipated a flowering of social science scholarship in the 1940s and 1950s that analogized ‘women’ to ‘Negroes’”). ↑
  10. Kennedy, supra note 1, at 5–6 (contending that “a government that cannot provide full employment for women who don’t have degrees, and even those who do, has a pretty big nerve making the most lucrative occupation [sex work] a crime”). ↑
  11. See id. at 47–49; id. at 52 (describing her time picketing Atlantic and Columbia Records with Young Activists Now, which included “smashing records on the sidewalk to get them to hire some of the Black and Puerto Rican teenagers . . . in after-school and summer jobs”). ↑
  12. See id. at 3–4. ↑
  13. See Assata Shakur, Assata: An Autobiography 97–98 (1987). ↑
  14. Kennedy, supra note 1, at 132. ↑
  15. See Diane Schulder & Florynce Kennedy, Abortion Rap 98 (1971). ↑
  16. See Eric Grundhauser, The Great Harvard Pee-In of 1973, Atlas Obscura (Dec. 23, 2016), https://www.atlasobscura.com/articles/the-great-harvard-peein-of-1973 [https://perma.cc/8N8E-UP9L]. ↑
  17. Nicholas Lemann, Black Activist Advocates Student Support of Strike, Harv. Crimson (Mar. 14, 1973), https://www.thecrimson.com/article/1973/3/14/black-activist-advocates-student-support-of/ [https://perma.cc/29UU-XRBT]. ↑
  18. See Irene Davall, To Pee or Not To Pee, Sexism at Harvard, On the Issues (1990), https://www.ontheissuesmagazine.com/1990summer/summer1990_DAVALL.php [https://perma.cc/Z54R-S4FE]. ↑
  19. Kennedy, supra note 1, at 81. ↑
  20. Grundhauser, supra note 15. ↑
  21. See id. ↑
  22. See Martin, supra note 4. ↑
  23. Id. ↑
  24. Rebecca Traister, Good and Mad: The Revolutionary Power of Women’s Anger 111 (2018). ↑
  25. See Kennedy, supra note 1, at 41–66. ↑
  26. See Mary Ziegler, The Price of Privacy, 1973 to the Present, 37 Harv. J.L. & Gender 285, 293–94 (2014) (briefly discussing Kennedy’s writing in support of abortion rights); Amber Baylor, Centering Women in Prisoners’ Rights Litigation, 25 Mich. J. Gender & L. 109, 117 (2018) (devoting a few sentences to Kennedy’s representation of women prisoners at Bedford Hills state prison); Sepper & Dinner, supra note 6, at 138 (noting Kennedy’s contributions to the creation of women’s restrooms at Harvard). Kennedy’s legacy also remains underexplored in popular culture. See Emma Specter, The Best Parts of FX’s Mrs. America Are Its Lesser-Known Feminists, Vogue (May 19, 2020), https://www.vogue.com/article/mrs-america-lesser-known-feminists [https://perma.cc/F8GX-TJBA] (expressing dismay that Niecy Nash’s portrayal of Kennedy did not feature more prominently in the television series). ↑
  27. See Sherie M. Randolph, Florynce “Flo” Kennedy: The Life of a Black Feminist Radical (2015). ↑
  28. 410 U.S. 113 (1973). ↑
  29. Randolph, supra note 26, at 168–69. ↑
  30. See Intersectional Feminism: What It Means and Why It Matters Right Now, UN Women (July 1, 2020), https://www.unwomen.org/en/news/stories/2020/6/explainer-intersectional-feminism-what-it-means-and-why-it-matters [https://perma.cc/T296-FD2Y]. ↑
  31. See Zoe Williams, Ruth Bader Ginsburg’s Death Means Pro-choicers Have a Fight on Their Hands, Guardian (Sept. 22, 2020), https://www.theguardian.com/commentisfree­/2020/sep/22/ruth-bader-ginsburg-pro-choicers-abortion-us-presidential-election [https://per­ma.cc/AD8P-NM7B] (describing the 2020 election as “among many other things, . . . a referendum on abortion”); Becca Andrews, We Need To Save Abortion Rights. But Roe Isn’t Enough—and RBG Knew It., Mother Jones (Sept. 21, 2020), https://www.motherjones.com/­politics/2020/09/ruth-bader-ginsburg-abor­tion-rights-roe/ [https://perma.cc/KH56-WFY6] (observing that Justice Ruth Bader Ginsburg’s death leaves the constitutional right to an abortion vulnerable to attack). ↑
  32. See Caroline Chiappetti, Note, Winning the Battle but Losing the War: The Birth and Death of Intersecting Notions of Race and Sex Discrimination in White v. Crook, 52 Harv. C.R.-C.L. L. Rev. 469, 488 n.114 (2017) (observing that in addition to attorney Pauli Murray, “[o]thers to make the analogy between race and sex included Columbia college student Flo Kennedy in a 1946 paper written for a sociology course”). ↑
  33. Randolph, supra note 26, at 168. ↑
  34. See Traister, supra note 23, at 53–54 (recounting how media sites reported that Congresswoman Waters experienced a “meltdown” and came “unhinged” when she reclaimed her time while questioning Treasury Secretary Steve Mnuchin); see also Trina Jones & Kimberly Jade Norwood, Aggressive Encounters & White Fragility: Deconstructing the Trope of the Angry Black Woman,
    102

    Iowa L. Rev.

    2017, 2057 (2017) (

    observing that when Black women face aggressive encounters, particularly those fueled by stereotypes or biases, “they risk backlash from the aggressor (and possibly others)[,] and . . . they may ultimately be blamed for the encounter” (footnote omitted)); Laura Morgan Roberts, Anthony J. Mayo, Robin J. Ely & David A. Thomas, Beating the Odds, Harv. Bus. Rev.

    (Mar.–Apr. 2018), https://hbr.org/2018/03/beating-the-odds [https://perma.cc/9DKS-ZGHK] (noting that Black women often experience “hypervisibility” in professional settings, prompting “an inhibiting and potentially limiting self-consciousness”). ↑

  35. See Patricia A. Broussard, Unbowed, Unbroken, and Unsung: The Unrecognized Contributions of African American Women in Social Movements, Politics, and the Maintenance of Democracy, 25 Wm. & Mary J. Race Gender & Soc. Just. 631, 676 (2019) (“The black female body and intellect have been used as weapons against black women and have been used to portray them as less intelligent, less truthful, less moral, and less valuable than white men and women.”); Roberts et al., supra note 33 (underscoring that in business, “black women are sometimes made to feel as though they’re invisible[,]” and finding that some Black women professionals “report having been mistaken for secretaries or even members of the waitstaff when starting new jobs”); Rachel Thomas et al., McKinsey & Co., Women in the Workplace 2020, at 26, 28 (2020), https://wiw-report.s3.amazonaws.com/Women_in_the_Workplace_2020.pdf [https://perma.cc/CC95-RAFQ] (finding that, based on survey data, “Black women are less likely to feel supported at work during Covid-19” and ”are promoted more slowly than other groups of employees and are significantly underrepresented in senior leadership”); Zuhairah Washington & Laura Morgan Roberts, Women of Color Get Less Support at Work. Here’s How Managers Can Change That, Harv. Bus. Rev.
    (

    Mar. 4, 2019), https://hbr.org/2019/03/women-of-color-get-less-support-at-work-heres-how-managers-can-change-that [https://perma.cc/4FGS-ERMP] (reporting that “despite representing about 18% of the U.S. population, women of color represented only 4% of C-Level positions in 2018, falling far below white men (68%) and white women (19%)”). ↑

  36. Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment 204 (2d ed. 2000). ↑
  37. Id. ↑
  38. See Schulder & Kennedy, supra note 14, at xv–xvi. ↑
  39. Cynthia Greenlee, How Abortion Storytelling Was Born, Rewire News (Jan. 22, 2016), https://rewire.news/article/2016/01/22/abortion-storytelling-born/ [https://perma.cc/5EAH-W6F8]. ↑
  40. See Schulder & Kennedy, supra note 14, at 81. ↑
  41. Id. ↑
  42. Greenlee, supra note 38. ↑
  43. Randolph, supra note 26, at 174 (piecing together quotes from the trial transcript from Schulder & Kennedy, supra note 14, at 32–35). ↑
  44. See id. at 176. ↑
  45. Greenlee, supra note 38. ↑
  46. See Schulder & Kennedy, supra note 14, at 178. ↑
  47. Greenlee, supra note 38. ↑
  48. Schulder & Kennedy, supra note 14, at xvi. ↑
  49. Id. at xv. ↑
  50. See id. at 6–88. ↑
  51. See id. at 89–102. ↑
  52. See id. at 103–06. ↑
  53. See id. at xvi, 151–61 (responding to the argument that abortion propels Black Genocide). ↑
  54. See id. at 160, 199. ↑
  55. See The Modern African American Political Thought Reader: From David Walker to Barack Obama, supra note 2, at 317. ↑
  56. See id. at 318. ↑
  57. Id. ↑
  58. Schulder & Kennedy, supra note 14, at 160. ↑
  59. Id. at 156. ↑
  60. Id. at 185. ↑
  61. Id. at 161. ↑
  62. Randolph, supra note 26, at 178. ↑
  63. Id. ↑
  64. See Schulder & Kennedy, supra note 14, at 156. ↑
  65. See Collins, supra note 35, at 204. ↑
  66. Schulder & Kennedy, supra note 14, at 158. ↑
  67. Id. at 159. ↑
  68. Id.at 160. ↑
  69. Id. at 161. ↑
  70. See also Ziegler, supra note 25, at 316 (underscoring the efficacy of Kennedy’s arguments linking Black women’s access to abortion and contraception to Black liberation). ↑
  71. Collins, supra note 35, at 204. ↑
  72. Benita Roth, “Organizing One’s Own” as Good Politics: Second Wave Feminists and the Meaning of Coalition, in Strategic Alliances: Coalition Building and Social Movements 99, 110 (Nella Van Dyke & Holly J. McCammon eds., 2010). ↑
  73. Id. ↑
  74. Schulder & Kennedy, supra note 14, at 161. ↑
  75. Roth, supra note 71, at 105. ↑
  76. See id. at 107. ↑
  77. See id. at 108. ↑
  78. See id. at 109–10. ↑
  79. See Veronica Terriquez, Intersectional Mobilization, Social Movement Spillover, and Queer Youth Leadership in the Immigrant Rights Movement, 62 Soc. Probs. 343, 346 (2015). ↑
  80. Collins, supra note 35, at 204. ↑
  81. Id. ↑
  82. Id. ↑
  83. See id. ↑
  84. See id. ↑
  85. Id. ↑
  86. See supra Section I.A. ↑
  87. Schulder & Kennedy, supra note 14, at xvi. ↑
  88. Sepper & Dinner, supra note 6, at 126 n.279. ↑
  89. See Schulder & Kennedy, supra note 14, at 156 (emphasizing that “[a]t least three small groups of Black and Puerto Rican Women’s Liberation groups participated in plans” for “demonstration against abortion oppression”). ↑
  90. See id. at 158. ↑
  91. Id. at 161. ↑
  92. Id. at 160. ↑
  93. See Khiara M. Bridges, Elision and Erasure: Race, Class, and Gender in Harris v. McRae, in Reproductive Rights and Justice Stories 117, 118 (Melissa Murray, Katherine Shaw & Reva B. Siegal eds., 2019) (observing “that poor women of color bear the brunt of the Hyde Amendment,” Pub. L. No. 96-123, § 109, 93 Stat. 923, 926 (1979), which bars federal funding of abortion); Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 54 (2017) (underscoring that “neither the Hyde Amendment nor the criminalization of the reproductive lives of poor women has been a major issue for mainstream reproductive rights organizations in the United States until very recently”). ↑
  94. See Schulder & Kennedy, supra note 14, at 160. ↑
  95. See id. (observing that “[e]nforced sterilization . . . has often been ordered in the case of welfare mothers, and has been used as well as a precondition for an abortion”). ↑
  96. Ross & Solinger, supra note 92, at 51. ↑
  97. Schulder & Kennedy, supra note 14, at 160. ↑
  98. Id. at 184. ↑
  99. Id. ↑
  100. Id. at 166. ↑
  101. Id. ↑
  102. 140 S. Ct. 2103, 2112–13 (2020) (holding that a Louisiana law requiring doctors who perform abortions to gain admitting privileges at a nearby hospital was unconstitutional). ↑
  103. Dahlia Lithwick, Women Are Being Written out of Abortion Jurisprudence, Slate (July 2, 2020), https://slate.com/news-and-politics/2020/07/abortion-supreme-court-women.html [https://perma.cc/H8BY-J6MB]; see also id. (observing that in recent abortion cases, women “are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer”). ↑
  104. See Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood 8 (2020) (“During the period 2010–15, state legislatures proposed and succeeded in enacting more regulations to restrict abortion and contraceptive access than in the prior three decades combined.”). ↑
  105. See K.K. Rebecca Lai & Jugal K. Patel, For Millions of American Women, Abortion Access Is out of Reach, N.Y. Times (May 31, 2019), https://www.nytimes.com/interactive/­2019/05/31/us/abortion-clinics-map.html [https://perma.cc/VEQ8-DBJR]. ↑
  106. Cassandra is a woman from Greek mythology whose prophetic warnings—which came true—went unheeded. See Cassandra, Britannica.com, https://www.britannica.com/topic/­Cassandra-Greek-mythology [https://perma.cc/3N3U-VV6Z] (last visited Dec. 28, 2020). ↑
  107. Kennedy, supra note 1, at 134, 136. ↑
  108. Audre Lorde, The Master’s Tools Will Never Dismantle the Master’s House, History Is a Weapon (1979), https://www.historyisaweapon.com/defcon1/lordedismantle.html [https://­perma.cc/U3JZ-NWNM]. ↑
  109. Id. ↑
  110. Kennedy, supra note 1, at 140. ↑
  111. Id. ↑
  112. See Lemann, supra note 16 (describing Kennedy’s activism on behalf of students protesting Harvard’s lack of women’s restrooms). ↑
  113. See Randolph, supra note 26, at 223 (observing that “Kennedy’s advocacy of inclusive coalitions, especially those among white women, black women, and black men, had been part of her politics since the 1950s”). ↑
  114. See Nora Ellman, State Actions Undermining Abortion Rights in 2020, Ctr. for Am. Progress (Aug. 27, 2020), https://www.americanprogress.org/issues/women/­reports/2020/08/27/489786/state-actions-undermining-abortion-rights-2020/ [https://perma.cc/R2ZC-FRYG]. ↑
  115. See Alexandra Svokos, Is Ginsburg’s Death the End of Roe v. Wade? This Time, Some Experts Say, It Could Be., ABC News (Sept. 21, 2020), https://abcnews.go.com/politics/ginsburgs-death-end-roe-wade-time-experts/story?id=73119646/ [https://perma.cc/5HL6-BFS7]. ↑
  116. See Randolph, supra note 26, at 168–69; see also 410 U.S. 113 (1973) (holding that a woman possesses a fundamental right to terminate her pregnancy by abortion). ↑
  117. See David Crary, Ginsburg’s Death Puts Roe v. Wade on the Ballot in November, AP News (Sept. 20, 2020), https://apnews.com/577f2ad123b356b47c801525ea4688be (discussing the potential overturning of Roe in light of Justice Ginsburg’s death). ↑
  118. See Ross & Solinger, supra note 92, at 56. ↑
  119. See Schulder & Kennedy, supra note 14, at 160. ↑
  120. Ross & Solinger, supra note 92, at 9. ↑
  121. Marie-Amélie George, Queering Reproductive Justice, 54 U. Rich. L. Rev. 671, 680 (2020). ↑
  122. See Ross & Solinger, supra note 92, at 47–48 (noting that “white advocates of legal and accessible contraception and abortion were often focused solely . . . on women’s right to prevent conception and unwanted births”). ↑
  123. See id. at 51, 53–54 (underscoring the barriers poor women face when trying to exercise reproductive freedom). ↑
  124. See id. at 54 (discussing advocacy to address “the serious limits of choice” for women of color). ↑
  125. See George, supra note 120, at 673 (underscoring the shared concerns between the reproductive rights and LGBTQ rights movements). ↑
  126. See The Modern African American Political Thought Reader: From David Walker to Barack Obama, supra note 2, at 317 (emphasizing Kennedy’s theory of hegemony of the oppressed). ↑
  127. See id. ↑
  128. See Barbara J. Cox, Refocusing Abortion Jurisprudence To Include the Woman: A Response to Bopp and Coleson and Webster v. Reproductive Health Services, 1990 Utah L. Rev. 543, 545 (underscoring scholars’ failure to include “any reference to the future harm to women who are prohibited from legal access to abortion”). ↑
  129. See Goodwin, supra note 103, at 4–5 (discussing heightened “attacks on women and surveillance of their bodies” in recent years). ↑
  130. Lithwick, supra note 102. ↑
  131. See Greenlee, supra note 38. ↑
  132. See id. ↑
  133. Pub. L. No. 96-123, § 109, 93 Stat. 923, 926 (1979) (barring federal funding of abortions for situations outside rape, incest, or risk to the mother’s life); see also Harris v. McRae, 448 U.S. 297, 326 (1980) (affirming the constitutionality of the Hyde Amendment). ↑
  134. Schulder & Kennedy, supra note 14, at 184 (criticizing “opponents of free abortions”). ↑
  135. See Skinner v. Oklahoma, 316 U.S. 535, 542 (1942) (striking down a statute that authorized coerced sterilization in the context of criminal sentencing, but expressly declining to overturn Buck v. Bell, 274 U.S. 200, 207 (1927), which held that Virginia’s compulsory sterilization program for institutionalized people with mental disabilities was constitutional); see also Miranda Bryant, Allegations of Unwanted ICE Hysterectomies Recall Grim Time in US History, Guardian (Sept. 21, 2020), https://www.theguardian.com/us-news/2020/sep/21/unwanted-hysterectomy-allegati­ons-ice-georgia-immigration (reporting the performance of unsolicited hysterectomies on women detained by United States Immigration and Customs Enforcement). ↑
  136. See Greenlee, supra note 38. ↑
  137. See Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 304 (1997) (observing the need to recognize “the essential relationship between liberty and equality” to advance reproductive justice for Black women). ↑
  138. See Sepper & Dinner, supra note 6, at 126 n.279. ↑
  139. Id. ↑
  140. See Traister, supra note 23, at 111. ↑
  141. See Kennedy, supra note 1, at 8 (“It’s interesting to speculate how it developed that in two of the most anti-feminist institutions, the church and the law court, the men are wearing the dresses.”). ↑
  142. See id. at 129 (“The lawyer . . . is analogous to a prostitute. The difference between the two is simple. The prostitute is honest . . . .”). ↑
  143. See id. at 132 (“Humanism that extends to Nixon is like people picnicking on the beach while others are drowning in the ocean.”). ↑
  144. Id. at 14. ↑
  145. Id. at 142. ↑
  146. Id. at 140 (emphasis added); see also id. at 6 (defending prostitution by observing that “to my knowledge, no one has ever died of a blow job”). ↑
  147. Patricia Burstein, Lawyer Flo Kennedy Enjoys Her Reputation as Radicalism’s Rudest Mouth, People Mag. (Apr. 14, 1975), https://people.com/archive/lawyer-flo-kennedy-enjoys-her-reputation-as-radicalisms-rudest-mouth-vol-3-no-14/ [https://perma.cc/Y8RZ-3KP9]. ↑
  148. See Broussard, supra note 34, at 670. ↑
  149. Angela Mae Kupenda, Letitia Simmons Johnson & Ramona Seabron-Williams, Political Invisibility of Black Women: Still Suspect but No Suspect Class, 50 Washburn L.J. 109, 111 (2010). ↑
  150. See id. at 112. ↑
  151. Moya Bailey & Trudy, On Misogynoir: Citation, Erasure, and Plagiarism, 18 Feminist Media Stud. 762, 762 (2018). ↑
  152. See Emily E. Petersen et al., Racial/Ethnic Disparities in Pregnancy-Related Deaths—United States, 2007–2016, 68 Morbidity & Mortality Wkly. Rep. 762, 762 (2019) (documenting the disproportionately high Black maternal mortality rate); Roberts, supra note 136, at 7 (detailing government policies aimed at curbing Black women’s fertility). ↑
  153. See Treva Lindsey, Black Women Have Consistently Been Trailblazers for Social Change. Why Are They So Often Relegated to the Margins?, Time (July 22, 2020), https://time.com/5869662/black-women-social-change/ [https://perma.cc/AWM7-N4RU]. ↑
  154. Christopher Lebron, The Invisibility of Black Women, Bos. Rev. (Jan. 15, 2016), http://bostonreview.net/race-literature-culture-gender-sexuality-arts-society/christopher-lebron-invisibility-black-women/ [https://perma.cc/AD44-6SWB]. ↑
  155. Id. ↑
  156. See Robin Young & Serena McMahon, #SayHerName Puts Spotlight on Black Women Killed by Police, WBUR (June 16, 2020), https://www.wbur.org/hereandnow/2020/06/16/­black-women-deaths-protests [https://perma.cc/NR73-DCXD] (discussing the #SayHerName campaign’s attempts to draw attention to Black women murdered by law enforcement). ↑
  157. Brittney Cooper, Eloquent Rage: A Black Feminist Discovers Her Superpower 2–3 (2018). ↑
  158. Id. at 3. ↑
  159. See Traister, supra note 23, at 67–79 (detailing the racist attacks on Michelle Obama and Maxine Waters in response to their political advocacy). ↑
  160. Grundhauser, supra note 15. ↑
  161. See supra Part I; see also Audre Lorde, The Uses of Anger, 9 Women’s Stud. Q. 7, 9 (1981) (“My anger has meant pain to me but it has also meant survival . . . .”). ↑
  162. Kennedy, supra note 1, at 134. ↑
  163. Traister, supra note 23, at 110. ↑
  164. See id. ↑
  165. See Broussard, supra note 34, at 675 (underscoring that the stereotyping of Black women is “used to maintain a status quo system that benefits those who seek to obfuscate the contributions of black women”). ↑
  166. See Kimberlé Williams Crenshaw & Andrea J. Ritchie, Afr. Am. Pol’y F., Say Her Name: Resisting Police Brutality Against Black Women 30 (2015), http://static1.squarespace.com/static/53f20d90e4b0b80451158d8c/t/560c068ee4b0af26f72741df/1443628686535/AAPF_SMN_Brief_Full_singles-min.pdf [https://perma.cc/S5SP-J7TT]. ↑
  167. See Cooper, supra note 156, at 273 (“[R]age can help us build things, too. The clarity that comes from rage should also tell us what kind of world we want to see, not just what kind of things we want to get rid of.”). ↑
  168. See Margot Lee Shetterly, Hidden Figures: The American Dream and the Untold Story of the Black Women Mathematicians Who Helped Win the Space Race (2016) (exploring the contributions of Black women scientists at NASA). ↑
  169. Isaiah Berlin, Political Liberty and Pluralism: Two Concepts of Liberty, in The Proper Study of Mankind: An Anthology of Essays 191, 228 (Henry Hardy & Roger Hausheer eds., 1997). ↑
  170. See generally Ronald Dworkin, A Matter of Principle 203 (1985) (noting that liberalism requires “that human beings must be treated as equals by their government, not because there is no right and wrong in political morality, but because that is what is right”). ↑
  171. Kennedy, supra note 1, at 14. ↑
  172. Id. at 132. ↑

Shaping Our Freedom Dreams: Reclaiming Intersectionality Through Black Feminist Legal Theory

Black feminist legal theory has offered the tool of intersectionality to modern feminist movements to help combat interlocking systems of oppression. Despite this tremendous offering, intersectionality has become wholly divorced from its Black feminist origins. This is significant because without a deep engagement with Black feminist legal theory, intersectionality is devoid of its revolutionary potential. In an attempt to reclaim the term, I offer a brief history of Black feminist legal theory and outline the theory’s impact through the widespread modern use of intersectionality. Lastly, I highlight how modern feminist movements can honor Black women’s contributions to the movement and achieve greater progress by relying on the original meaning of intersectionality as defined by Kimberlé Crenshaw.

“In the silence that followed, Baby Suggs, holy, offered up to them her great big heart. She did not tell them to clean up their lives or to go and sin no more. She did not tell them they were the blessed of the earth, its inheriting meek or its glorybound pure. She told them that the only grace they could have was the grace they could imagine. That if they could not see it, they would not have it. ‘Here,’ she said, ‘in this here place, we flesh; flesh that weeps, laughs; flesh that dances on bare feet in grass. Love it. Love it hard.”

Toni Morrison, Beloved1 1.Toni Morrison, Beloved 103 (Vintage Int’l 2004).Show More

Introduction

The American classic, Beloved, shares the story of a Black mother, Sethe, who is haunted by the ugliness of slavery long after she is emancipated. Sethe finds brief reprieve from her haunting memories when she recalls the stirring sermons that Baby Suggs, her mother-in-law, would offer to the other emancipated Black folk in town. Standing on a large rock amidst a clearing in the woods, Baby Suggs would shout invocations so enchanting that all who heard her responded with unabashed laughter, dancing, and tears. Once the energized townsfolk were gratifyingly exhausted, letting silence fill the clearing once more, Baby Suggs would share the fullness of her heart through a powerful sermon. She invited her community to foster an imagination capable of propelling them beyond their dehumanizing past and towards a deeper self-love. The novel culminates when the Black women of the town do just this, as they ultimately save Sethe from the specter that is haunting her by banding together to cast it out.

The collective struggle of the Black women in Beloved mirrors the essential function of Black feminist legal theory. Heeding Baby Suggs’s call, Black feminist legal theorists imagine beyond the confines of the legal academy’s margins, skillfully developing their own legal theory in order to write themselves into larger conversations. The push to imagine beyond erasure, as is emphasized tenderly by Baby Suggs’s invocation, is a will to love hard the core, human elements of Black women’s belonging. Not a holy mission, but a human one meant to unearth the depths of selfhood that are constantly denied until a new and liberating understanding is discovered.

It is critical to contextualize the function of Black feminist legal theory because, since it exists as a distinctly humanizing practice, it demands respect. Humanizing, here, distinguishes Black feminist practice from the normative approach of the legal academy.2 2.Nikol G. Alexander‐Floyd, Critical Race Black Feminism: A “Jurisprudence of Resistance” and the Transformation of the Academy, 35 J. Women Culture & Soc’y 810, 810 (2010) (“[T]he law, more than any other area of the academy, has vaunted pretensions to hyperrationality, objectivity, and power. . . . [Additionally,] legal reasoning presents itself as the ultimate standard in intellectual achievement, a white masculinist posture that holds special challenges for black female lawyers and law professors who are taken as the law’s embodied antithesis.”).Show More Legal scholarship offers well-meaning, oftentimes essential, theoretical tools to the legal field, but there is no prescriptive requirement that scholarship operate in the service of any particular community. And while there is some merit to wrestling with intangible, looming social issues for its own sake, Black feminist legal theorists must contend with the specific, material realities present within their community with the goal of eradicating oppression.3 3.See, e.g., The Combahee River Collective: A Black Feminist Statement, in Capitalist Patriarchy and the Case for Socialist Feminism 362, 362 (Zillah R. Eisenstein ed., 1979) (“As black women we see black feminism as the logical political movement to combat the manifold and simultaneous oppressions that all women of color face.” Specifically, Black feminists are “actively committed to struggling against racial, sexual, heterosexual, and class oppression.”).Show More Black feminist legal theory has produced frameworks with deliberate and urgent liberatory purpose; any misuse of these frameworks is, at best, irresponsible and, at worst, a continuation of the legal field’s devaluation of Black female scholarship.4 4.SeeTaunya Lovell Banks, Two Life Stories: Reflections of One Black Woman Law Professor, 6 Berkeley Women’s L.J. 46, 48 (1990) (“As it is, Black women academics/intellectuals already occupy a precarious position in legal education. We are misfits, not fully accepted by the Black or White community, and as women, we still are not full members of the feminist community.”).Show More

Any attempt to honor a body of work raises the question of what constitutes proper respect. Modern widespread usage of “intersectionality,” a framework developed by Black feminist legal theorist Kimberlé Crenshaw, most clearly embodies this issue with regard to the appropriate engagement of Black feminist legal theory. Intersectionality appears often in the vernacular of modern social movements, ranging from the Women’s March on Washington to social media campaigns such as #MeToo and #BlackLivesMatter.5 5.See, e.g.,Kory Stamper, A Brief, Convoluted History of the Word ‘Intersectionality,’ Cut (Mar. 9, 2018), https://www.thecut.com/2018/03/a-brief-convoluted-history-of-the-word-intersectionality.html [https://perma.cc/7KAW-YMF8].Show More While it might seem respectful for a Black feminist legal framework to be widely recognized, if intersectionality is divorced from its radical and action-oriented roots, then it could be argued that the framework is not being respected at all.6 6.See Claudia Garcia-Rojas, Intersectionality Is a Hot Topic—and So Is the Term’s Misuse, Truthout (Oct. 17, 2019), https://truthout.org/articles/intersectionality-is-a-hot-topic-and-so-is-the-terms-misuse/ [https://perma.cc/B8NA-XGUQ].Show More Crenshaw herself has pointed out the constant misapplication of intersectionality.7 7.See Kimberlé Crenshaw on Intersectionality, More Than Two Decades Later, Colum. L. Sch. (June 08, 2017), https://www.law.columbia.edu/news/archive/kimberle-crenshaw-intersectionality-more-two-decades-later [https://perma.cc/AA8T-E44C].Show More In fact, it is widely argued that intersectionality has become irredeemably misappropriated, and some Black feminist scholars even suggest that Black feminists should intentionally divest from the term altogether.8 8.SeeJennifer C. Nash, Black Feminism Reimagined: After Intersectionality 21–22 (Duke Univ. Press 2019).Show More Even still, just like the Black women gathered around Sethe at the end of Beloved to rid her of her specter, so shall Black women reach out and reclaim Black feminist legal theory to place it back at the helm of its origins. Not purely for theory, but as a way to honor the work as an extension of the “flesh that weeps, laughs,” and “dances on bare feet in grass.”9 9.Morrison, supranote 1, at 103.Show More

This Essay is an attempt to reclaim the term “intersectionality” by reconnecting it to its Black feminist roots. In particular, I will contextualize intersectionality as a tool developed by Black feminist legal theory in order to determine the term’s proper purpose and utility. By recentering the term, I hope to signal a recentering of Black feminist legal theory’s past and present influence on modern feminist movements. In Part I, I will offer a brief overview of the origins of Black feminist legal theory alongside a careful analysis of intersectionality. In Part II, I will detail the impact of Black feminist legal theory on mainstream feminist movements, specifically through the utility of intersectionality as a critical lens in the #MeToo Movement and the #SayHerName Campaign. In Part III, I will develop a Black feminist critique of modern antidiscrimination law, namely through the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County that extended Title VII protections to gender identity and sexual orientation, in order to guide future equity efforts. In conclusion, I offer concrete steps for modern feminist movements to truly progress from this point of stagnation.

I. The Origins of Black Feminist Legal Theory and Intersectionality

A. Overview of Black Feminist Legal Theory

In her paper Critical Race Black Feminism: A “Jurisprudence of Resistance” and the Transformation of the Academy, Black feminist legal scholar Nikol G. Alexander-Floyd outlines the development of Black feminist legal theory, as well as its subsequent impact on the legal academy. Black feminist legal theory initially emerged out of critical race theory (“CRT”) as Black feminist legal scholars expounded upon “critical race theory’s basic frameworks to address questions of class, gender, and sexuality.”10 10.Alexander‐Floyd, supranote 2, at 812.Show More Black feminist legal theory similarly distinguished itself from existing legal theory, namely feminist legal theory and critical legal studies (“CLS”), by highlighting the shortcomings of contemporary discourse within the legal academy. Therefore, an accurate overview of Black feminist legal theory’s origins requires addressing the specific ways it aligns with and has diverged from CLS, feminist legal theory, and CRT.

Black feminists fundamentally agreed with CLS’s view that the creation and application of law propagates an intrinsic “political dimension” that “serves to structure mass consciousness and contributes to the reproduction of the social and political structures of liberal society.”11 11.Id.Show More Nevertheless, CLS’s overall subpar racial analysis led many Black feminists to deem CLS “inconsistent and theoretically unsatisfying.”12 12.Id.Show More Certain CLS scholars believed the use of a racial lens when critiquing the law was “instrumentalist.”13 13.Id.; see also Critical Race Theory: The Key Writings That Formed the Movement xxiv (Kimberlé Crenshaw, Neil Gotanda, Gary Peller & Kendall Thomas eds., The New Press 1995) (“During the eighties, [CLS scholars] had been debating the issue of ‘instrumentalist’ . . . accounts of law . . . [which they believed] embodied a constricted view of the range and sites of the production of social power, and hence of politics. . . . [Instrumentalism] ignored the ways that law and other merely ‘superstructural’ arenas helped to constitute the very interests that law was supposed merely to reflect.”).Show More Other CLS scholars maintained a postmodern social constructionist view of race that would “downplay, neglect, or trivialize the interrelationship of law and race altogether.”14 14.Alexander‐Floyd, supranote 2, at 812. The postmodern social constructionist view in question, referred to as “racialism,” is defined as “theoretical accounts of racial power that explain legal and political decisions which are adverse to people of color as mere reflections of underlying white interest.” Critical Race Theory: The Key Writings That Formed the Movement, supranote 13, at xxiv.Show More

Similar to its criticisms of CLS, a significant Black feminist critique of feminist legal theory was its lack of a developed racial analysis.15 15.SeePatricia Hill Collins, Distinguishing Features of Black Feminist Thought, in Black Feminist Thought 24, 24 (Routledge 2009) (outlining the contours of Black feminist thought as contradictory to contemporary white feminism).Show More Feminist legal theory’s reliance on essentialist views of womanhood demonstrates this shortcoming.16 16.Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1990) (“[G]ender essentialism [is] the notion that a unitary, ‘essential’ women’s experience can be isolated and described independently of race, class, sexual orientation, and other realities of experience.”).Show More In Race and Essentialism in Feminist Legal Theory, Angela P. Harris critiques the gender essentialism within the writings of prominent feminist legal theorists Catharine MacKinnon and Robin West. Harris agrees with the utility of categorization within feminist legal theory, but she exposes the implicit essentialism of even a purposefully race-neutral approach to the category of “women.” Harris notes that “feminist legal theory, . . . despite its claim to universality, seems to” define the category of “women” as “white, straight, and socioeconomically privileged.”17 17.Id. at 588.Show More Harris highlights the differing approach of Black feminist legal theory, which intentionally constructs categories as “explicitly tentative, relational, and unstable.”18 18.Id.at 586.Show More In addition to embracing multiple consciousness,19 19.Id. at 584 (“[Multiple consciousness] is a premise . . . that we are not born with a ‘self,’ but rather are composed of a welter of partial, sometimes contradictory, or even antithetical ‘selves.’ . . . As I use the phrase, ‘multiple consciousness’ as reflected in legal or literary discourse is not a golden mean or static equilibrium between two extremes, but rather a process in which propositions are constantly put forth, challenged, and subverted.”).Show More Harris outlines that Black feminist legal theory offers “at least three major contributions” to feminist legal theory, which include “the recognition of a self that is multiplicitous, not unitary; the recognition that differences are always relational rather than inherent; and the recognition that wholeness and commonality are acts of will and creativity, rather than passive discovery.”20 20.Id. at 608.Show More

Despite these differences, however, there are many similarities between Black feminist legal theory and CRT. This is largely because many of CRT’s foundational scholars, such as Kimberlé Crenshaw, also provide the backbone of Black feminist legal theory.21 21.Other Black feminist legal theorists who are also CRT scholars include, but are not limited to, the following: Angela P. Harris, Patricia Williams, Regina Austin, Cheryl I. Harris, and Paulette M. Caldwell.Show More In Angela P. Harris’s paper, Foreword: The Jurisprudence of Reconstruction, she asserts the Black feminist acceptance of CRT as a “critical social science” that emphasizes that “[t]he crisis in our social system is our collective failure to adequately perceive or to address racism.”22 22.Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 Calif. L. Rev. 741, 752 (1994).Show More Specifically, Black feminist legal theory agrees that this crisis is “caused by a false understanding of ‘racism’ as an intentional, isolated, individual phenomenon, equivalent to prejudice” instead of “as a structural flaw in our society.”23 23.Id.Show More Harris notes that CRT’s commitment to postmodernist skepticism of law’s neutrality, when juxtaposed with its modernist aspirations to achieve racial liberation, creates a tension within the theory.24 24.Id. at 743 (“In CRT’s ‘postmodern narratives,’ racism is an inescapable feature of western culture, and race is always already inscribed in the most innocent and neutral-seeming concepts. Even ideas like ‘truth’ and ‘justice’ themselves are open to interrogations that reveal their complicity with power. . . . In its ‘modernist narratives,’ CRT seems confident that crafting the correct theory of race and racism can help lead to enlightenment, empowerment, and finally to emancipation: that, indeed, the truth shall set you free.”).Show More Black feminist legal theory responds to this tension by offering a “jurisprudence of resistance.”25 25.Cheryl I. Harris, Law Professors of Color and the Academy: Of Poets and Kings, 68 Chi.-Kent L. Rev. 331, 350 n.52 (1992).Show More Cheryl I. Harris’s paper Law Professors of Color and the Academy: Of Poets and Kings asserts that a jurisprudence of resistance requires legal scholars of color “to tell a different story that is neither known or familiar and indeed may be disturbing, annoying, and frightening.”26 26.Id.at 333.Show More Harris does not fret whether she is taking a postmodernist or modernist approach; instead, she focuses on her responsibility as a Black woman within the legal academy to uplift “a jurisprudence that resists subordination and empowers.”27 27.Id.Show More She achieves this in her paper by relying on the CRT-inspired narrative format,28 28.Alexander‐Floyd, supranote 2, at 812 (“Many critical race theorists, for instance, employ irony, storytelling, and the relaying of personal experiences in an effort to affront and expose the law’s false presentation of itself as linear, objective, unyielding, and timeless.”).Show More sharing her experience as a Black female law professor at a time when she was one of few. Harris ultimately acknowledges that while “[t]here is much room for debate as to how we achieve” social transformation, the task should be “to take risks, raise contradictions, raise consciousness, and develop an oppositional role—not for its own sake, but for the sake of those of us who remain under the burden of inequities and injustice in the social order.”29 29.Harris, supranote 25, at 351.Show More

Evident through its departures from CLS, feminist legal theory, and CRT, Black feminist legal theory presents a distinct lens through which Black feminist legal scholars have shaped a liberatory practice. This practice ultimately pairs critical legal analyses with social awareness drawn from Black feminism. A close examination of intersectionality can further flesh out the defining tenets of Black feminist legal theory.

B. Overview of Intersectionality

The term “intersectionality” is widely used both within and outside of legal scholarship. Many who use the term may be vaguely aware that it was coined by Kimberlé Crenshaw. Likely fewer have read the legal paper, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, in which Crenshaw developed the term to criticize the courts’ inability to recognize the distinct ways discrimination impacts Black women.30 30.Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 140.Show More What is often overlooked, however, is that the term was presented as a framework to challenge the “single-axis”31 31.Id.Show More approach to identity that invariably rendered Black women invisible in both feminist and antiracist policy discourse. While intersectionality does encompass Black women’s distinct experiences with discrimination, its main concerns were the broader inability of antidiscrimination law to offer any remedy to those who are “multiply-burdened.”32 32.Id.Show More This broader purpose does not belittle the importance of Crenshaw’s predominant focus on Black women’s experiences,33 33.Much of Crenshaw’s legal scholarship focuses on the conditions of Black women. See, e.g.,Kimberlé W. Crenshaw, We Still Have Not Learned from Anita Hill’s Testimony, 26 UCLA Women’s L.J. 17 (2019); Kimberlé W. Crenshaw, Close Encounters of Three Kinds: On Teaching Dominance Feminism and Intersectionality, 46 Tulsa L. Rev. 151 (2010); Kimberlé Crenshaw, Race, Gender, and Sexual Harassment, 65 S. Cal. L. Rev. 1467 (1992).Show More but it offers context that will help to counter contemporary misappropriations of the term.

Due to the overemphasis many put on the identity component of intersectionality,34 34.See, e.g., Joe Kort, Understanding Intersectional Identities, Psych. Today (June 25, 2019), https://www.psychologytoday.com/us/blog/understanding-the-erotic-code/201906/un­derstanding-intersectional-identities [https://perma.cc/9K5K-WBHF] (focusing on identities without underscoring the systemic nature of inequality).Show More the term has become misrepresented as additive instead of reconstitutive.35 35.The fact that intersectionality is not additive is reasserted often by Crenshaw herself, particularly on her social media page. In 2020, more than thirty years after she coined intersectionality, Crenshaw tweeted, “Intersectionality is not additive. It’s fundamentally reconstitutive. Pass it on.” Kimberlé Crenshaw (@sandylocks), Twitter (June 26, 2020, 1:41 PM), https://twitter.com/sandylocks/status/1276571389911154688?lang=en.Show More Intersectionality does not simply add identity categories together to create an analysis of another group’s experience, e.g., the normative “Black experience” + the normative “trans experience” together constitute the Black trans experience.36 36.Kort, supranote 34 (outlining lived experience as being the composite of multiple identities).Show More Similarly, intersectional is not shorthand for “association and/or allyship with various differing identity groups.”37 37.See, e.g., Crenshaw, supranote 7 (“Some people look to intersectionality as a grand theory of everything [or] a blanket term to mean, ‘Well, it’s complicated[,]’ . . . [b]ut that’s not my intention.”).Show More Another modern misappropriation of intersectionality is its use as a personal identifier, i.e., “intersectional feminist.”38 38.SeeAlia E. Dastagir,What Is Intersectional Feminism? A Look at the Term You May Be Hearing a Lot, USA Today (Jan. 25, 2017, 8:02 AM), https://www.usatoday.com/story/­news/2017/01/19/feminism-intersectionality-racism-sexism-class/96633750/ [https://perma.­cc/FBZ2-3EXD].Show More This reflects a misunderstanding of how intersectionality operates predominantly as a framework to identify the production of harm towards the multiply burdened, not an ideology.39 39.See, e.g., Crenshaw, supra note 7.Show More Lastly, many people misconstrue which specific identities qualify as intersectional, i.e., Blackness, womanhood, queerness, etc., and which identities, while they might be held concurrently, would never fall within the purview of intersectionality, i.e., whiteness, maleness, heterosexuality, etc.40 40.For example, conservative pundit Ben Shapiro incorrectly defines intersectionality as “a form of identity politics in which the value of your opinion depends on how many victim groups you belong to.” Jane Coaston, The Intersectionality Wars, Vox (May 28, 2019, 9:09 AM), https://www.vox.com/the-highlight/2019/5/20/18542843/intersectionality-conservatis­m-law-race-gender-discrimination. This implies intersectionality applies to any person who maintains at least one “victim group” identity, which is a mischaracterization. See id.Show More These misappropriations imply a shallow engagement with intersectionality that ultimately abandons the term’s Black feminist underpinnings to “trade[] on the currency and intellectual sexiness of the term while displacing black female subjectivity.”41 41.Alexander‐Floyd, supranote 2, at 817.Show More In an attempt to correct these many common misappropriations and recenter Black feminist legal theory, I will offer an overview of how intersectionality was originally defined by Crenshaw.

An accurate overview of intersectionality requires a close reading of Demarginalizing the Intersection of Race and Sex. Crenshaw spends most of the paper defining “the problem of intersectionality,”42 42.Crenshaw, supranote 30, at 141.Show More stating clearly that “any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated.”43 43.Id. at 140.Show More The insufficient analysis Crenshaw principally critiques throughout her paper was the dominant view of antidiscrimination law at the time, which predicated recognition of legal discrimination on “the experiences of those who are privileged but for their racial or sexual characteristics.”44 44.Id. at 151.Show More The “but for” approach relied on the premise that antidiscrimination law corrected aberrations within an inherently impartial society. When unlawful discrimination occurred, it was perceived as “the identification of a specific class or category; either a discriminator intentionally identifies this category, or a process is adopted which somehow disadvantages all members of this category.”45 45.Id. at 150.Show More Crenshaw goes on to point out that the implied linearity of discrimination assumed by the “but for” approach results in the belief that “a discriminator treats all people within a race or sex category similarly.”46 46.Id.Show More

This underlying belief makes itself most apparent in how courts test the strength of discrimination suits. For example, if a woman pursues a gender discrimination suit against her previous employer, the court would evaluate said employer’s treatment of its other female employees for any signs of gender-based discriminatory practice. The court’s goal is to find congruous mistreatment of female employees as a cohesive group as compared to male employees.47 47.See, e.g., id. at 142 (citing DeGraffenreid v. Gen. Motors Assembly Div., 413 F. Supp. 142, 143–45 (E.D. Mo. 1976),to stand for the proposition that since “General Motors did hire women—albeit white women—during the period that no Black women were hired, there was, in the court’s view, no sex discrimination”).Show More The problem with this approach, Crenshaw notes, is that the court’s category of “women” is defined using the experience of the most privileged members of the group.48 48.See, e.g., id. at 143 (“Under th[e] view [held by the DeGraffenreidcourt], Black women are protected only to the extent that their experiences coincide with those of either of the two groups[—white women or Black men].”).Show More Therefore, if the aforementioned woman filing a gender discrimination suit were Black, her experiences may look nothing like the more familiar gender-based discrimination directed towards white women. In fact, the discrimination experienced by a Black female employee could be so racially informed that similar mistreatment has never been experienced by a white female co-worker despite their shared gender.

Unfortunately, the same erasure could be said to exist along racial lines, as Black women often experience anti-Black racism much differently than Black men.49 49.SeeJocelyn Frye, Racism and Sexism Combine To Shortchange Working Black Women, Ctr. for Am. Progress (Aug. 22, 2019, 12:01 AM), https://www.americanprogress.org/­issues/women/news/2019/08/22/473775/racism-sexism-combine-shortchange-working-black-women/ [https://perma.cc/3WYL-H3V5].Show More Crenshaw notes that “the equation of racism with what happens to . . . Black men” will invariably “marginalize those whose experiences cannot be described within [those] tightly-drawn parameters.”50 50.Crenshaw, supra note 30, at 152.Show More Compounding this legal erasure, the uniqueness of Black women’s experiences with discrimination has led some courts to deem Black female plaintiffs incapable of properly representing gender-based or race-based class action suits.51 51.Id. at 146–48.Show More This ultimately leaves Black women without any reliable legal remedy when pursuing racial or gender discrimination suits. Crenshaw rejects this relegation of Black women to the unprotected margins and offers intersectionality as a “Black feminist criticism” of the dominant, single-axis framework in antidiscrimination law. She concludes her critique by rejecting both the idea that Black women experience unique discrimination and the claim that they experience discrimination that is the same as white women or Black men. Crenshaw underscores that this seeming contradiction occurs because the rigidity of the single-axis approach leads to logical inconsistencies. “The point is that Black women can experience discrimination in any number of ways and that the contradiction arises from our assumptions that their claims of exclusion must be unidirectional.”52 52.Id. at 149.Show More Intersectionality serves to broaden the way courts manage marginalized identities by highlighting the compound nature of structural inequity.53 53.SeeAt the Crossroads of Gender and Racial Discrimination, World Conf. Against Racism, https://www.un.org/WCAR/e-kit/gender.htm [https://perma.cc/2HSC-TPF8] (last visited Sept. 30, 2020).Show More Crenshaw’s push for the law to embrace complexity speaks to intersectionality’s Black feminist foundation, which diverges sharply from the shallow contemporary usage of the term.54 54.Coaston, supra note 40.Show More

It is obvious, then, that intersectionality is not additive. The reconstitutive nature of the term lies within its potential to constantly complicate known narratives and expose completely new ways of being.55 55.Id.Show More Intersectionality embraces the importance of Black women as a cohesive marginalized group, but it also intentionally rejects prescribing the reality of a few Black women as applicable to all Black women.56 56.Id.Show More Additionally, the term could not be a standalone identifier of a person’s politics or act as shorthand for an “association with various identity groups” because the term’s purpose is to identify the negative, discriminatory systems acting on marginalized people.57 57.Crenshaw, supranote 30, at 140.Show More The focus on marginalized people also outlines the boundaries of intersectionality—the term does not apply to all identities.58 58.See, e.g., Nikol G. Alexander-Floyd, Disappearing Acts: Reclaiming Intersectionality in the Social Sciences in a Post-Black Feminist Era, 24 Feminist Formations 1, 19 (2012) (“[I]ntersectionality research must focus on illuminating women of color as political subjects and the gender, racial, class, and sexual politics that impact their lives.”).Show More Ultimately, intersectionality’s purpose is to act as a tool, identifying sources of discrimination in the service of those who are marginalized. To further extend the analogy, intersectionality operates as a magnifying glass. While it can be helpful to better identify in detail harmful structures, it is a useless term when it is divorced from its Black feminist roots. Those who wield the magnifying glass as their only tool will find themselves unable to dismantle the structures they have identified. That is why it is important for intersectionality to be recentered as a Black feminist legal framework, so that it can be supplemented with other tools better suited to pull apart oppressive systems. Modern feminist movements have benefitted greatly from general applications of intersectionality, but they would achieve greater progress if their usage of intersectionality was properly couched in Black feminist practice.

II. Intersectionality and Modern Feminist Movements

A. The #MeToo Movement

The influence of Black feminist legal theory on modern feminist movements, specifically through the usage of intersectionality, is substantial. Two recent national feminist movements that both embody the “problem of intersectionality” and utilize an intersectional lens to contend with this problem are the #MeToo Movement and the #SayHerName Campaign. The phrase “Me Too” was first developed in 2006 by Black activist Tarana Burke.59 59.Jamillah Bowman Williams, Lisa Singh & Naomi Mezey,#MeToo as Catalyst: A Glimpse into 21st Century Activism, 2019 U. Chi. Legal F. 371, 374.Show More Burke hoped the inclusive framing of the phrase would encourage isolated survivors of sexual violence, specifically Black women and girls, to know that they did not have to manage their trauma alone.60 60.Id.Show More The phrase developed into what is now known as the #MeToo Movement in 2017, when white actress Alyssa Milano used the phrase on Twitter in response to multiple accusations of sexual violence against film producer Harvey Weinstein.61 61.Id.Show More In her paper Maximizing #MeToo: Intersectionality and the Movement, Jamillah Williams outlines the subsequent lack of Black women’s engagement in the social media campaign, despite its considerable potential for inclusivity.62 62.Jamillah Bowman Williams, Maximizing #MeToo: Intersectionality and the Movement, B.C. L. Rev. (forthcoming 2020) (on file with the Georgetown Law Library), https://scholarship.law.­georgetown.edu/cgi/viewcontent.cgi?article=3299&context=facpub [https://perma.cc/C5AP-KESJ].Show More Williams highlights that “[a] joint study by the Massive Data Institute and Gender + Justice Initiative at Georgetown University estimates that less than 1% of tweets with the hashtag #MeToo were identifiable to a Black participant.”63 63.Id. at 36.Show More Williams addresses this incongruity by using an intersectional lens to identify why the #MeToo Movement did not attract Black women.

The intersectional lens Williams uses is predominantly informed by the paper Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, in which Kimberlé Crenshaw fleshes out how structural, political, and representational intersectionality informs violence against Black women, particularly sexual violence.64 64.Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1991).Show More Williams relies on Crenshaw’s structural, political, and representational intersectionality frameworks to highlight why Black women are not sufficiently represented in a movement that relies on a phrase developed by a Black woman for survivors within her community.65 65.Williams, supra note 62, at 36–37.Show More Crenshaw defines structural intersectionality as “the consequence of gender and class oppression . . . [that] are then compounded by the racially discriminatory employment and housing practices women of color often face.”66 66.Crenshaw, supranote 64, at 1246.Show More Williams points out that Black women face unique material dangers when outing an abuser, which might be less prominent for a white woman with access to more financial independence. Some of these financial obstacles include “poverty, childcare responsibilities, and [a] lack [of] social capital and job skills—which is only exacerbated by racial disadvantage.”67 67.Williams, supranote 62, at 36.Show More These fears, paired with “fears of retaliation . . . and different perspectives of the justice system[,]” may dissuade many Black women from publicly participating in the #MeToo Movement.68 68.Id. at 37.Show More

As for political intersectionality, Crenshaw describes it as contending with “the fact that women of color are situated within at least two subordinated groups that frequently pursue conflicting political agendas.”69 69.Crenshaw, supranote 64, at 1251–52.Show More While Black women aspire to show gender solidarity with other female survivors of sexual violence, they may also wrestle with possibly betraying racial solidarity by outing a Black male abuser.70 70.SeeNat’l Org. for Women, Black Women & Sexual Violence, https://now.org/wp-content/uploads/2018/02/Black-Women-and-Sexual-Violence-6.pdf [https://perma.cc/MG8­R-5NB3] (“A national study found that ninety-one percent of Black women are sexually assaulted by Black men . . . . In these instances, Black women are faced with an impossible task, asked to ‘betray’ a member of their own community to report their assault.”).Show More Williams offers examples of this phenomenon by pointing to the racial tensions that ensued when Anita Hill accused Justice Clarence Thomas of sexual harassment, and multiple Black women and girls accused musician R. Kelly of sexual violence.71 71.Williams, supra note 62, at 39.Show More In Thomas’s case, once he referred to his accusations as a “high-tech lynching for uppity Blacks,” a source found that “Black support of Thomas doubled.”72 72.Id.Show More By framing sexual harassment allegations as a racial attack, despite the accusations coming from a Black woman, Thomas was able to manipulate racial solidarity to defend his sexual abuse of a woman within his own community. Similarly, R. Kelly’s popularity within the Black community allowed many Black people to excuse his vile sexual acts. Despite some of his victims being Black girls who were as young as fourteen years old,73 73.See Lisa Respers France, R. Kelly Scandal: A Timeline, CNN (Jan. 11, 2019, 7:13 AM), https://www.cnn.com/2019/01/10/entertainment/r-kelly-timeline/index.html [https://perma.c­c/XJ9G-LVF9].Show More racial solidarity compelled both Black men and women to support R. Kelly due to their desire to protect a Black man from alleged racial persecution.74 74.See Jemele Hill, R. Kelly and the Cost of Black Protectionism, Atlantic (Jan. 11, 2019), https://www.theatlantic.com/entertainment/archive/2019/01/r-kelly-and-cost-black-protect­ionism/580150/ [https://perma.cc/S7NT-JVTP].Show More

The Black community’s abandonment of Black women and girls in pursuit of racial solidarity is facilitated by representational intersectionality, which Crenshaw defines as a linkage between “the devaluation of women of color . . . [and their representation] in cultural imagery.”75 75.Crenshaw, supranote 64, at 1282.Show More Negative stereotypes of Black women and girls as hypersexual cultivated a lack of societal empathy for the Black female victims of R. Kelly’s sexual violence and for Anita Hill.76 76.See Girlhood Interrupted: On R. Kelly and How Black Girls Are Viewed in Our Society, Blackburn Ctr. (Feb. 5, 2019), https://www.blackburncenter.org/post/2019/02/05/girlhood-interrupted-on-r-kelly-and-how-black-girls-are-viewed-in-our-society [https://perma.cc/YC­H2-HA6W].Show More The media plays a large role in dehumanizing Black women through misrepresentations that “crystallize the tropes and stereotypes that contribute to” white women victims receiving more empathy than Black women victims.77 77.Williams, supranote 62, at 40.Show More In this same vein, media portrayals of “#MeToo victims as famous and predominately white celebrities . . . reinforced marginalization of women of color’s experiences within the movement.”78 78.Id. at 41.Show More Through an awareness of how intersectional harms influence Black women’s lack of engagement with the #MeToo Movement, Williams ultimately points to alternative intersectional approaches to sexual violence that better aid Black women. For example, she proposes a broader approach to workplace harassment legislation, an increase in collective action and unionization, and greater focus on pay equity and living wages to increase financial independence among women of color.79 79.See id. at 50–63.Show More Each of these approaches is directly linked to an intersectional lens being applied to the problem of sexual violence and crafting solutions that deal with the unique harms faced specifically by women of color.80 80.See Sexual Violence & Women of Color: A Fact Sheet, Ohio All. To End Sexual Violence, https://www.oaesv.org/site/assets/files/1324/oaesv-sexual-violence-women-of-color.pdf [https://perma.cc/3FAE-ZW95] (last visited Sept. 30, 2020).Show More

B. The #SayHerName Campaign

In addition to sexual violence, the “problem of intersectionality” plagues Black women in another social arena: police brutality. Though Black women are similarly impacted by police and state violence,81 81.Kimberlé W. Crenshaw, Andrea J. Ritchie, Rachel Anspach, Rachel Gilmer & Luke Harris, Afr. Am. Pol’y F., Say Her Name: Resisting Police Brutality Against Black Women 1–2 (2015).Show More the Black male dominated narrative of the larger #BlackLivesMatter movement erases this fact. Black men are centered as though they are solely raced and not gendered, making them the perfect representatives of police violence for the Black community.82 82.SeeBrittney Cooper, Why Are Black Women and Girls Still an Afterthought in Our Outrage over Police Violence?, Time (June 4, 2020, 6:39 AM),https://time.com/­5847970/police-brutality-black-women-girls/ [https://perma.cc/93PS-KZ4D].Show More Black women, on the other hand, are perpetually othered due to their gender and therefore deemed too dissimilar to properly represent the entire Black community.83 83.See, e.g., Crenshaw, supranote 30, at 162–63 (“Black women’s particular interests are . . . relegated to the periphery in public policy discussions about the presumed needs of the Black community [because] . . . [t]he struggle against racism seemed to compel the subordination of certain aspects of the Black female experience in order to ensure the security of the larger Black community.”).Show More This erasure has led Black women to create the #SayHerName Campaign as an intersectional response to the #BlackLivesMatter movement.84 84.Crenshaw et al., supra note 81, at 2–4.Show More Kimberlé Crenshaw herself has been a major proponent of the #SayHerName Campaign, highlighting just how strongly her work has influenced this initiative.85 85.#SayHerName Campaign, Afr. Am. Pol’y F., https://aapf.org/sayhername [https://perma.­cc/689X-Z8PJ] (last visited Sept. 15, 2020).Show More The campaign was initiated by the African American Policy Forum (“AAPF”) and Center for Intersectionality and Social Policy Studies (“CISPS”) in December 2014.86 86.Id.Show More Their purpose was to both uplift Black women and girls who were victims of police violence and offer “an intersectional framework for understanding black women’s susceptibility to police brutality and state-sanctioned violence” in order “to effectively mobilize various communities and empower them to advocate for racial justice.”87 87.Id.Show More The campaign not only addresses how Black liberation movements often perpetuate the exclusion of Black women, but it also underscores how Black female victims of police violence are treated differently than Black male victims.88 88.Crenshaw et al., supranote 81, at 2–4.Show More

The differential treatment of Black male and female victims of police violence is best exemplified by juxtaposing the treatment of Breonna Taylor’s murder with George Floyd’s.89 89.SeeRichard A. Oppel Jr., Derrick Bryson Taylor & Nicholas Bogel-Burroughs, What To Know About Breonna Taylor’s Death, N.Y. Times (Oct. 23, 2020), https://www.nytimes.com/article/breonna-taylor-police.html [https://perma.cc/NY52-EJFW] (outlining the details of Taylor’s murder).Show More While there have been expected media insensitivities surrounding Floyd’s murder, such as the mass distribution of his graphic murder across media platforms and a coroner’s report that blamed Floyd’s death on his health and possible drug use,90 90.Ann Crawford-Roberts et al., George Floyd’s Autopsy and the Structural Gaslighting of America, Sci. Am. (June 6, 2020), https://blogs.scientificamerican.com/voices/george-floyds-autopsy-and-the-structural-gaslighting-of-america/ [https://perma.cc/6X99-U7CP].Show More Taylor’s death has been treated in ways that can only be defined as disrespectful. Specifically, her case and requests for the arrest of the officers who murdered her have been used as easter eggs in memes, TikToks, and Instagram posts that have nothing to do with her death.91 91.SeeMorgan Sung, Breonna Taylor’s Death Shouldn’t Be an Insensitive Twitter Meme, Mashable (June 25, 2020), https://mashable.com/article/breonna-taylor-death-memes/.Show More Most recently, activist organization Until Freedom hosted a four-day-long event called “BreonnaCon” that meshed protest with festivities like a “Bre-B-Q.”92 92.See Joe Jurado, Social Justice Organization Until Freedom To Hold Four Day ‘BreonnaCon’ in Honor of Breonna Taylor, Root (Aug. 19, 2020, 7:00 PM), https://www.theroot.com/social-justice-organization-until-freedom-to-hold-four-1844778721 [https://perma.cc/4GGE-WZ3G].Show More The irreverent placement of a Black woman’s death in quasi-humorous settings by Black and white people alike shows the collective devaluation of harm directed toward Black women.93 93.See Hannah Drake, Who Protects Black Women?, LEO Weekly (Mar. 20, 2019), https://www.leoweekly.com/2019/03/protects-black-women/ [https://perma.cc/XJ7S-JU9A].Show More “[T]he idea that racial progress depends on black female subordination”94 94.Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 375.Show More unconsciously compels society to devalue Black women in the course of espousing “pro-Black” politics.95 95.See Nichole Richards, Black Women Are Not To Blame for Our Community’s Problems, Westside Gazette (Aug. 24, 2017), https://thewestsidegazette.com/black-women-not-blame-communitys-problems/ [https://perma.cc/922W-JYFV] (claiming that “the ‘single Black mother as community destroyer’ argument [is] racist and based on some serious misogynistic tenor”).Show More

The devaluation of Black womanhood for the supposed betterment of the entire Black community further extends to other aspects of Black women’s lives. In her paper, A Hair Piece: Perspectives on the Intersection of Race and Gender, Paulette Caldwell contextualizes Black women’s intersectional discrimination in employment with the compounded harm Black women receive from those who hope to support the Black community.96 96.See Caldwell, supra note 94, at 373–74.Show More Caldwell observes this phenomenon in cases where unmarried Black female employees were fired due to their pregnancies. Several courts have justified the firing of these Black women because they worked with children, which was especially relevant if these children were Black.97 97.Id.at 375.Show More Black women were not only subject to distorted images about Black female sexuality,98 98.See, e.g., Patricia Hill Collins, Mammies, Matriarchs, and Other Controlling Images, in Black Feminist Thought 69, 69–71 (Routledge 2009).Show More but they were also expected to counter these stereotypes by performing perfection. While Black men are sometimes offered even minimal interiority,99 99.SeeMelissa Pandika, Elijah McClain and the Pitfalls of the “Perfect Victim” Narrative, Mic (July 16, 2020), https://www.mic.com/p/elijah-mcclain-the-pitfalls-of-the-perfect-victim-narrative-29135795 [https://perma.cc/8SCF-BG64].Show More Black women are dehumanized through society’s view of their lives as purely symbolic.100 100.Collins, supra note 98, at 69 (“As part of a generalized ideology of domination, stereotypical images of Black womanhood take on special meaning.”). Black women are dehumanized through these images and therefore operate as symbolic extensions of discriminatory projections.Show More This dehumanizing expectation forces Black women to embody perpetual “subordinat[ion] on the basis of gender to all men, regardless of color, and on the basis of race to all other women.”101 101.Caldwell, supra note 94, at 376.Show More This non-consensual rendering of Black women into symbols, especially within the Black community, culminates contemporarily in the ease with which all races of people can turn Taylor’s tragic murder into a meme.102 102.SeeAja Romano, “Arrest the Cops Who Killed Breonna Taylor”: The Power and the Peril of a Catchphrase, Vox (Aug. 10, 2020, 9:30 AM), https://www.vox.com/­21327268/breonna-taylor-say-her-name-meme-hashtag.Show More Nevertheless, the #SayHerName Campaign’s use of an intersectional analysis confronts, challenges, and deconstructs Black female erasure and dehuman­ization.103 103.SeeMary Louise Kelly & Heidi Glenn, Say Her Name: How the Fight for Racial Justice Can Be More Inclusive of Black Women, NPR (July 7, 2020, 6:59 PM), https://www.npr.org/­sections/live-updates-protests-for-racial-justice/2020/07/07/888498009/say-her-name-how-the-fight-for-racial-justice-can-be-more-inclusive-of-black-wom [https://perma.cc/7RQE-WP3B].Show More

III. Modern Antidiscrimination Law, Intersectionality, and Bostock v. Clayton County

As exemplified through #MeToo and #SayHerName, Black feminist legal theory has played a large role in directing many modern feminist movements.104 104.See Carmina Hachenburg, Black Feminist Women Created Most Modern Movements, Author Feminista Jones Tells Penn, Daily Pennsylvanian (Feb. 14, 2019, 11:39 PM), https://www.thedp.com/article/2019/02/feminista-jones-black-feminism-penn-philadelphia-author-book [https://perma.cc/58UR-W927].Show More However, there are still many criticisms of the feminist movement’s direction, especially in regard to how the courts are defining rights.105 105.SeeSharita Gruberg, Beyond Bostock: The Future of LGBTQ Civil Rights, Ctr. Am. Progress (Aug. 26, 2020, 9:01 AM),https://www.americanprogress.org/issues/lgbtq-rights/reports/2020/08/26/489772/beyond-bostock-future-lgbtq-civil-rights/ [https://perma.cc/DT3C-SJAG].Show More Specifically, the Supreme Court’s decision in Bostock v. Clayton County,106 106.140 S. Ct. 1731 (2020).Show More which extended Title VII protections to discrimination claims based on gender identity and sexual orientation, espouses flawed analyses. In the landmark opinion written by Justice Neil Gorsuch, the Court found that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”107 107.Id. at 1737.Show More While the decision is being lauded as a victory for the LGBTQ+ community, its argument depends on the single-axis approach to antidiscrimination law that Crenshaw was critiquing with intersectionality. Justice Gorsuch asserts that “[t]here is simply no escaping the role intent plays [in discrimination suits],”108 108.Id. at 1742.Show More highlighting how courts continue to interpret discrimination as a “discriminator intentionally” marginalizing LGBTQ+ people, “or a process . . . which somehow disadvantages all members of this category.”109 109.Crenshaw, supranote 30, at 150.Show More Crenshaw was clear that the “but for” approach erases the contours of how discrimination impacts those who are multiply burdened.110 110.See id at 151.Show More Disregarding Crenshaw’s insight, the Court proclaims that “[j]ust as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.”111 111.Bostock, 140 S. Ct. at 1742 (emphasis omitted).Show More The ramifications of this single-axis approach will impact the most marginalized within the LGBTQ+ community. Meanwhile, the most privileged within the LGBTQ+ community will be the most likely to benefit from the extension, and once precedent is built based on the engagement of predominantly privileged LGBTQ+ lawsuits with the courts, there will be less and less emphasis on the experience of the most marginalized. For example, those who work in non-conventional jobs and those without work will be left to fend for themselves as the legal system continues to operate as though discrimination is always intentional and linear. This flies in the face of not only intersectionality but also the Black feminist theory from which it was born.

A truly intersectional approach would have pushed the Court to recognize that the protections LGBTQ+ individuals need are not only job safety but also the things that those who are employed can hopefully afford: health care, housing, food security, and other necessities. The inequities that plague the most marginalized are the larger societal deficiencies that are always deemed isolated issues instead of clear extensions of race issues, gender issues, and LGBTQ+ issues. If the modern feminist movement truly wants to see progress, it must pledge to engage with the complexities and depth of Black feminist theory, as well as abandon the troubling limitations of the single-axis approach. If this is done, progress might just be made.

IV. Progressing Past Present Stagnation

The only way for modern feminist movements to move past non-inclusivity and achieve long-standing progress is to invest in an honest engagement with Black feminist legal theory. Intersectionality has been watered down to purposely render the term ineffective, thereby allowing minor shifts in oppressive structures to benefit a few at the expense of many. The single-axis view, or “but for” approach, promises only incremental movement for those who are already closely aligned with the powerful. The task before Black feminists is not to shift power but to eradicate arbitrary hierarchies of power in favor of liberation. That is why modern feminist movements must commit to centering unadulterated Black feminist legal theory, because that would subsequently mean embracing the liberatory potential of collective struggle and imagination. Dismantling long-standing oppressive structures is a looming task, especially when Black women often do this work while simultaneously battling misrepresentation, erasure, and the material consequences and financial insecurity of centuries-long oppression. Nevertheless, akin to the Black women in Beloved who overcame the lingering specter of slavery, only the collective vision of Black feminist practice can offer the wisdom and resilience needed to attain true liberation. Only fierce commitment to Black feminist practice can transform modern feminist movements into vehicles for achieving our freedom dreams.

  1. * Thank you to my partner and best friend Mariana; I owe you more than I could ever put into words. Thank you to Professor H. Timothy Lovelace, for offering insightful commentary. Thank you to my sister Nicole; your support inspires me to persevere. Thank you to the Black women past and present, who continue to pave my way. ↑
  2. Toni Morrison, Beloved 103 (Vintage Int’l 2004). ↑
  3. Nikol G. Alexander‐Floyd, Critical Race Black Feminism: A “Jurisprudence of Resistance” and the Transformation of the Academy, 35 J. Women Culture & Soc’y 810, 810 (2010) (“[T]he law, more than any other area of the academy, has vaunted pretensions to hyperrationality, objectivity, and power. . . . [Additionally,] legal reasoning presents itself as the ultimate standard in intellectual achievement, a white masculinist posture that holds special challenges for black female lawyers and law professors who are taken as the law’s embodied antithesis.”). ↑
  4. See, e.g., The Combahee River Collective: A Black Feminist Statement, in Capitalist Patriarchy and the Case for Socialist Feminism 362, 362 (Zillah R. Eisenstein ed., 1979) (“As black women we see black feminism as the logical political movement to combat the manifold and simultaneous oppressions that all women of color face.” Specifically, Black feminists are “actively committed to struggling against racial, sexual, heterosexual, and class oppression.”). ↑
  5. See Taunya Lovell Banks, Two Life Stories: Reflections of One Black Woman Law Professor, 6 Berkeley Women’s L.J. 46, 48 (1990) (“As it is, Black women academics/intellectuals already occupy a precarious position in legal education. We are misfits, not fully accepted by the Black or White community, and as women, we still are not full members of the feminist community.”). ↑
  6. See, e.g., Kory Stamper, A Brief, Convoluted History of the Word ‘Intersectionality,’ Cut (Mar. 9, 2018), https://www.thecut.com/2018/03/a-brief-convoluted-history-of-the-word-intersectionality.html [https://perma.cc/7KAW-YMF8]. ↑
  7. See Claudia Garcia-Rojas, Intersectionality Is a Hot Topic—and So Is the Term’s Misuse, Truthout (Oct. 17, 2019), https://truthout.org/articles/intersectionality-is-a-hot-topic-and-so-is-the-terms-misuse/ [https://perma.cc/B8NA-XGUQ]. ↑
  8. See Kimberlé Crenshaw on Intersectionality, More Than Two Decades Later, Colum. L. Sch. (June 08, 2017), https://www.law.columbia.edu/news/archive/kimberle-crenshaw-intersectionality-more-two-decades-later [https://perma.cc/AA8T-E44C]. ↑
  9. See Jennifer C. Nash, Black Feminism Reimagined: After Intersectionality 21–22 (Duke Univ. Press 2019). ↑
  10. Morrison, supra note 1, at 103. ↑
  11. Alexander‐Floyd, supra note 2, at 812. ↑
  12. Id. ↑
  13. Id. ↑
  14. Id.; see also Critical Race Theory: The Key Writings That Formed the Movement xxiv (Kimberlé Crenshaw, Neil Gotanda, Gary Peller & Kendall Thomas eds., The New Press 1995) (“During the eighties, [CLS scholars] had been debating the issue of ‘instrumentalist’ . . . accounts of law . . . [which they believed] embodied a constricted view of the range and sites of the production of social power, and hence of politics. . . . [Instrumentalism] ignored the ways that law and other merely ‘superstructural’ arenas helped to constitute the very interests that law was supposed merely to reflect.”). ↑
  15. Alexander‐Floyd, supra note 2, at 812. The postmodern social constructionist view in question, referred to as “racialism,” is defined as “theoretical accounts of racial power that explain legal and political decisions which are adverse to people of color as mere reflections of underlying white interest.” Critical Race Theory: The Key Writings That Formed the Movement, supra note 13, at xxiv. ↑
  16. See Patricia Hill Collins, Distinguishing Features of Black Feminist Thought, in Black Feminist Thought 24, 24 (Routledge 2009) (outlining the contours of Black feminist thought as contradictory to contemporary white feminism). ↑
  17. Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1990) (“[G]ender essentialism [is] the notion that a unitary, ‘essential’ women’s experience can be isolated and described independently of race, class, sexual orientation, and other realities of experience.”). ↑
  18. Id. at 588. ↑
  19. Id. at 586. ↑
  20. Id. at 584 (“[Multiple consciousness] is a premise . . . that we are not born with a ‘self,’ but rather are composed of a welter of partial, sometimes contradictory, or even antithetical ‘selves.’ . . . As I use the phrase, ‘multiple consciousness’ as reflected in legal or literary discourse is not a golden mean or static equilibrium between two extremes, but rather a process in which propositions are constantly put forth, challenged, and subverted.”). ↑
  21. Id. at 608. ↑
  22. Other Black feminist legal theorists who are also CRT scholars include, but are not limited to, the following: Angela P. Harris, Patricia Williams, Regina Austin, Cheryl I. Harris, and Paulette M. Caldwell. ↑
  23. Angela P. Harris, Foreword: The Jurisprudence of Reconstruction, 82 Calif. L. Rev. 741, 752 (1994). ↑
  24. Id. ↑
  25. Id. at 743 (“In CRT’s ‘postmodern narratives,’ racism is an inescapable feature of western culture, and race is always already inscribed in the most innocent and neutral-seeming concepts. Even ideas like ‘truth’ and ‘justice’ themselves are open to interrogations that reveal their complicity with power. . . . In its ‘modernist narratives,’ CRT seems confident that crafting the correct theory of race and racism can help lead to enlightenment, empowerment, and finally to emancipation: that, indeed, the truth shall set you free.”). ↑
  26. Cheryl I. Harris, Law Professors of Color and the Academy: Of Poets and Kings, 68 Chi.-Kent L. Rev. 331, 350 n.52 (1992). ↑
  27. Id. at 333. ↑
  28. Id. ↑
  29. Alexander‐Floyd, supra note 2, at 812 (“Many critical race theorists, for instance, employ irony, storytelling, and the relaying of personal experiences in an effort to affront and expose the law’s false presentation of itself as linear, objective, unyielding, and timeless.”). ↑
  30. Harris, supra note 25, at 351. ↑
  31. Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 140. ↑
  32. Id. ↑
  33. Id. ↑
  34. Much of Crenshaw’s legal scholarship focuses on the conditions of Black women. See, e.g., Kimberlé W. Crenshaw, We Still Have Not Learned from Anita Hill’s Testimony, 26 UCLA Women’s L.J. 17 (2019); Kimberlé W. Crenshaw, Close Encounters of Three Kinds: On Teaching Dominance Feminism and Intersectionality, 46 Tulsa L. Rev. 151 (2010); Kimberlé Crenshaw, Race, Gender, and Sexual Harassment, 65 S. Cal. L. Rev. 1467 (1992). ↑
  35. See, e.g., Joe Kort, Understanding Intersectional Identities, Psych. Today (June 25, 2019), https://www.psychologytoday.com/us/blog/understanding-the-erotic-code/201906/un­derstanding-intersectional-identities [https://perma.cc/9K5K-WBHF] (focusing on identities without underscoring the systemic nature of inequality). ↑
  36. The fact that intersectionality is not additive is reasserted often by Crenshaw herself, particularly on her social media page. In 2020, more than thirty years after she coined intersectionality, Crenshaw tweeted, “Intersectionality is not additive. It’s fundamentally reconstitutive. Pass it on.” Kimberlé Crenshaw (@sandylocks), Twitter (June 26, 2020, 1:41 PM), https://twitter.com/sandylocks/status/1276571389911154688?lang=en. ↑
  37. Kort, supra note 34 (outlining lived experience as being the composite of multiple identities). ↑
  38. See, e.g., Crenshaw, supra note 7 (“Some people look to intersectionality as a grand theory of everything [or] a blanket term to mean, ‘Well, it’s complicated[,]’ . . . [b]ut that’s not my intention.”). ↑
  39. See Alia E. Dastagir, What Is Intersectional Feminism? A Look at the Term You May Be Hearing a Lot, USA Today (Jan. 25, 2017, 8:02 AM), https://www.usatoday.com/story/­news/2017/01/19/feminism-intersectionality-racism-sexism-class/96633750/ [https://perma.­cc/FBZ2-3EXD]. ↑
  40. See, e.g., Crenshaw, supra note 7. ↑
  41. For example, conservative pundit Ben Shapiro incorrectly defines intersectionality as “a form of identity politics in which the value of your opinion depends on how many victim groups you belong to.” Jane Coaston, The Intersectionality Wars, Vox (May 28, 2019, 9:09 AM), https://www.vox.com/the-highlight/2019/5/20/18542843/intersectionality-conservatis­m-law-race-gender-discrimination. This implies intersectionality applies to any person who maintains at least one “victim group” identity, which is a mischaracterization. See id. ↑
  42. Alexander‐Floyd, supra note 2, at 817. ↑
  43. Crenshaw, supra note 30, at 141. ↑
  44. Id. at 140. ↑
  45. Id. at 151. ↑
  46. Id. at 150. ↑
  47. Id. ↑
  48. See, e.g., id. at 142 (citing DeGraffenreid v. Gen. Motors Assembly Div., 413 F. Supp. 142, 143–45 (E.D. Mo. 1976), to stand for the proposition that since “General Motors did hire women—albeit white women—during the period that no Black women were hired, there was, in the court’s view, no sex discrimination”). ↑
  49. See, e.g., id. at 143 (“Under th[e] view [held by the DeGraffenreid court], Black women are protected only to the extent that their experiences coincide with those of either of the two groups[—white women or Black men].”). ↑
  50. See Jocelyn Frye, Racism and Sexism Combine To Shortchange Working Black Women, Ctr. for Am. Progress (Aug. 22, 2019, 12:01 AM), https://www.americanprogress.org/­issues/women/news/2019/08/22/473775/racism-sexism-combine-shortchange-working-black-women/ [https://perma.cc/3WYL-H3V5]. ↑
  51. Crenshaw, supra note 30, at 152. ↑
  52. Id. at 146–48. ↑
  53. Id. at 149. ↑
  54. See At the Crossroads of Gender and Racial Discrimination, World Conf. Against Racism, https://www.un.org/WCAR/e-kit/gender.htm [https://perma.cc/2HSC-TPF8] (last visited Sept. 30, 2020). ↑
  55. Coaston, supra note 40. ↑
  56. Id. ↑
  57. Id. ↑
  58. Crenshaw, supra note 30, at 140. ↑
  59. See, e.g., Nikol G. Alexander-Floyd, Disappearing Acts: Reclaiming Intersectionality in the Social Sciences in a Post-Black Feminist Era, 24 Feminist Formations 1, 19 (2012) (“[I]ntersectionality research must focus on illuminating women of color as political subjects and the gender, racial, class, and sexual politics that impact their lives.”). ↑
  60. Jamillah Bowman Williams, Lisa Singh & Naomi Mezey, #MeToo as Catalyst: A Glimpse into 21st Century Activism, 2019 U. Chi. Legal F. 371, 374. ↑
  61. Id. ↑
  62. Id. ↑
  63. Jamillah Bowman Williams, Maximizing #MeToo: Intersectionality and the Movement, B.C. L. Rev. (forthcoming 2020) (on file with the Georgetown Law Library), https://scholarship.law.­georgetown.edu/cgi/viewcontent.cgi?article=3299&context=facpub [https://perma.cc/C5AP-KESJ]. ↑
  64. Id. at 36. ↑
  65. Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241 (1991). ↑
  66. Williams, supra note 62, at 36–37. ↑
  67. Crenshaw, supra note 64, at 1246. ↑
  68. Williams, supra note 62, at 36. ↑
  69. Id. at 37. ↑
  70. Crenshaw, supra note 64, at 1251–52. ↑
  71. See Nat’l Org. for Women, Black Women & Sexual Violence, https://now.org/wp-content/uploads/2018/02/Black-Women-and-Sexual-Violence-6.pdf [https://perma.cc/MG8­R-5NB3] (“A national study found that ninety-one percent of Black women are sexually assaulted by Black men . . . . In these instances, Black women are faced with an impossible task, asked to ‘betray’ a member of their own community to report their assault.”). ↑
  72. Williams, supra note 62, at 39. ↑
  73. Id. ↑
  74. See Lisa Respers France, R. Kelly Scandal: A Timeline, CNN (Jan. 11, 2019, 7:13 AM), https://www.cnn.com/2019/01/10/entertainment/r-kelly-timeline/index.html [https://perma.c­c/XJ9G-LVF9]. ↑
  75. See Jemele Hill, R. Kelly and the Cost of Black Protectionism, Atlantic (Jan. 11, 2019), https://www.theatlantic.com/entertainment/archive/2019/01/r-kelly-and-cost-black-protect­ionism/580150/ [https://perma.cc/S7NT-JVTP]. ↑
  76. Crenshaw, supra note 64, at 1282. ↑
  77. See Girlhood Interrupted: On R. Kelly and How Black Girls Are Viewed in Our Society, Blackburn Ctr. (Feb. 5, 2019), https://www.blackburncenter.org/post/2019/02/05/girlhood-interrupted-on-r-kelly-and-how-black-girls-are-viewed-in-our-society [https://perma.cc/YC­H2-HA6W]. ↑
  78. Williams, supra note 62, at 40. ↑
  79. Id. at 41. ↑
  80. See id. at 50–63. ↑
  81. See Sexual Violence & Women of Color: A Fact Sheet, Ohio All. To End Sexual Violence, https://www.oaesv.org/site/assets/files/1324/oaesv-sexual-violence-women-of-color.pdf [https://perma.cc/3FAE-ZW95] (last visited Sept. 30, 2020). ↑
  82. Kimberlé W. Crenshaw, Andrea J. Ritchie, Rachel Anspach, Rachel Gilmer & Luke Harris, Afr. Am. Pol’y F., Say Her Name: Resisting Police Brutality Against Black Women 1–2 (2015). ↑
  83. See Brittney Cooper, Why Are Black Women and Girls Still an Afterthought in Our Outrage over Police Violence?, Time (June 4, 2020, 6:39 AM), https://time.com/­5847970/police-brutality-black-women-girls/ [https://perma.cc/93PS-KZ4D]. ↑
  84. See, e.g., Crenshaw, supra note 30, at 162–63 (“Black women’s particular interests are . . . relegated to the periphery in public policy discussions about the presumed needs of the Black community [because] . . . [t]he struggle against racism seemed to compel the subordination of certain aspects of the Black female experience in order to ensure the security of the larger Black community.”). ↑
  85. Crenshaw et al., supra note 81, at 2–4. ↑
  86. #SayHerName Campaign, Afr. Am. Pol’y F., https://aapf.org/sayhername [https://perma.­cc/689X-Z8PJ] (last visited Sept. 15, 2020). ↑
  87. Id. ↑
  88. Id. ↑
  89. Crenshaw et al., supra note 81, at 2–4. ↑
  90. See Richard A. Oppel Jr., Derrick Bryson Taylor & Nicholas Bogel-Burroughs, What To Know About Breonna Taylor’s Death, N.Y. Times (Oct. 23, 2020), https://www.nytimes.com/article/breonna-taylor-police.html [https://perma.cc/NY52-EJFW] (outlining the details of Taylor’s murder). ↑
  91. Ann Crawford-Roberts et al., George Floyd’s Autopsy and the Structural Gaslighting of America, Sci. Am. (June 6, 2020), https://blogs.scientificamerican.com/voices/george-floyds-autopsy-and-the-structural-gaslighting-of-america/ [https://perma.cc/6X99-U7CP]. ↑
  92. See Morgan Sung, Breonna Taylor’s Death Shouldn’t Be an Insensitive Twitter Meme, Mashable (June 25, 2020), https://mashable.com/article/breonna-taylor-death-memes/. ↑
  93. See Joe Jurado, Social Justice Organization Until Freedom To Hold Four Day ‘BreonnaCon’ in Honor of Breonna Taylor, Root (Aug. 19, 2020, 7:00 PM), https://www.theroot.com/social-justice-organization-until-freedom-to-hold-four-1844778721 [https://perma.cc/4GGE-WZ3G]. ↑
  94. See Hannah Drake, Who Protects Black Women?, LEO Weekly (Mar. 20, 2019), https://www.leoweekly.com/2019/03/protects-black-women/ [https://perma.cc/XJ7S-JU9A]. ↑
  95. Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 375. ↑
  96. See Nichole Richards, Black Women Are Not To Blame for Our Community’s Problems, Westside Gazette (Aug. 24, 2017), https://thewestsidegazette.com/black-women-not-blame-communitys-problems/ [https://perma.cc/922W-JYFV] (claiming that “the ‘single Black mother as community destroyer’ argument [is] racist and based on some serious misogynistic tenor”). ↑
  97. See Caldwell, supra note 94, at 373–74. ↑
  98. Id. at 375. ↑
  99. See, e.g., Patricia Hill Collins, Mammies, Matriarchs, and Other Controlling Images, in Black Feminist Thought 69, 69–71 (Routledge 2009). ↑
  100. See Melissa Pandika, Elijah McClain and the Pitfalls of the “Perfect Victim” Narrative, Mic (July 16, 2020), https://www.mic.com/p/elijah-mcclain-the-pitfalls-of-the-perfect-victim-narrative-29135795 [https://perma.cc/8SCF-BG64]. ↑
  101. Collins, supra note 98, at 69 (“As part of a generalized ideology of domination, stereotypical images of Black womanhood take on special meaning.”). Black women are dehumanized through these images and therefore operate as symbolic extensions of discriminatory projections. ↑
  102. Caldwell, supra note 94, at 376. ↑
  103. See Aja Romano, “Arrest the Cops Who Killed Breonna Taylor”: The Power and the Peril of a Catchphrase, Vox (Aug. 10, 2020, 9:30 AM), https://www.vox.com/­21327268/breonna-taylor-say-her-name-meme-hashtag. ↑
  104. See Mary Louise Kelly & Heidi Glenn, Say Her Name: How the Fight for Racial Justice Can Be More Inclusive of Black Women, NPR (July 7, 2020, 6:59 PM), https://www.npr.org/­sections/live-updates-protests-for-racial-justice/2020/07/07/888498009/say-her-name-how-the-fight-for-racial-justice-can-be-more-inclusive-of-black-wom [https://perma.cc/7RQE-WP3B]. ↑
  105. See Carmina Hachenburg, Black Feminist Women Created Most Modern Movements, Author Feminista Jones Tells Penn, Daily Pennsylvanian (Feb. 14, 2019, 11:39 PM), https://www.thedp.com/article/2019/02/feminista-jones-black-feminism-penn-philadelphia-author-book [https://perma.cc/58UR-W927]. ↑
  106. See Sharita Gruberg, Beyond Bostock: The Future of LGBTQ Civil Rights, Ctr. Am. Progress (Aug. 26, 2020, 9:01 AM), https://www.americanprogress.org/issues/lgbtq-rights/reports/2020/08/26/489772/beyond-bostock-future-lgbtq-civil-rights/ [https://perma.cc/DT3C-SJAG]. ↑
  107. 140 S. Ct. 1731 (2020). ↑
  108. Id. at 1737. ↑
  109. Id. at 1742. ↑
  110. Crenshaw, supra note 30, at 150. ↑
  111. See id at 151. ↑
  112. Bostock, 140 S. Ct. at 1742 (emphasis omitted). ↑
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