Source, pages 1298-9
CONTEXT:
This excerpt of text, published in 2011, appears in Volume 105 of the Northwestern University Law Review. The title of the "Notes and Comments" piece (submitted by law student Mark E. Berghausen) is "Intersex Employment Discrimination: Title VII and Anatomical Sex Nonconformity." This section of the law review addresses Title VII, which bars employment discrimination based on a variety of factors; the one most closely examined in this piece is sex. The excerpt chosen summarizes a 1987 court case, Wood v. C.G. Studios, Inc., in which the judge found that there was no sex discrimination at Wood's place of work because Wood had undergone "gender-corrective surgery" which invalidated her sex as a female, and therefore could not be discriminated against under Title VII. As the piece points out, Title VII was at this time understood to not extend to transsexual individuals or those who had surgery to change their sex.
Course Reading:
Since the 1950s, psychologists, sexologists, and other researchers have battled over theories about the origins of sexual difference, especially gender identity, gender roles, and sexual orientation. Much is at stake in these debates. Our conceptions of the nature of gender difference shape, even as they reflect, the ways we structure our social system and polity; they also shape and reflect our understanding of our physical bodies (Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality, 45).
Analysis:
As Fausto-Sterling points out, sexual difference and its constructions socially, medically, and legally have a large impact on how society perceives and controls physical bodies. This is true in the case of Wood v. C.G. Studies, Inc. This was the first, and only (as of 2011), documented case of an intersex employee claiming a workplace discrimination that violated Title VII. Therefore, Judge O’Neill’s decision served as a precedent for potential future cases and further shaped the way intersex bodies are perceived in American society. Most importantly, Judge O’Neill’s decision that Wood’s firing because of her intersexuality did not constitute a breach of Title VII rights was extremely influential in this exclusionary view on intersex people. The judge’s reasoning was that because Wood had “genital reconstructive surgery,” this invalidated her identification as a woman and made her exempt from protection under Title VII. The term “sex,” as defined by Judge O’Neill and past cases regarding workplace discrimination, “should be given its traditional meaning.” This definition enforces the male/female binary and supports only those who are medically defined as being one sex or the other, and at the same time erases bodies that do not fall into that “traditional” definition. Likewise, saying that discriminating against intersex individuals does not constitute discrimination based on sex implies that intersex individuals do not have a sex; they fall outside the binary and their gender and sexual orientation identity formation is invalidated.
The larger article does mention, however, that many cases in the following years disagreed or contradicted with Judge O’Neill’s final decision. The article goes on to discuss legislation and court cases regarding transsexual individuals and equates the outcomes of those cases to any hypothetical outcomes of cases regarding intersex people, since there have not been many recorded cases of workplace discrimination against intersex people. There is a general trend towards inclusion of transsexual people under the scope of Title VII, which indicates movement towards acceptance (at least legally) of those who may question or disrupt the "traditional" sex binary.
The larger article does mention, however, that many cases in the following years disagreed or contradicted with Judge O’Neill’s final decision. The article goes on to discuss legislation and court cases regarding transsexual individuals and equates the outcomes of those cases to any hypothetical outcomes of cases regarding intersex people, since there have not been many recorded cases of workplace discrimination against intersex people. There is a general trend towards inclusion of transsexual people under the scope of Title VII, which indicates movement towards acceptance (at least legally) of those who may question or disrupt the "traditional" sex binary.