Recent transgender Civil Rights victories in education and employment seem to indicate a legal loosening, if not dissolution, of binary gender norms. Legal scholar Kimberly Yuracko analyzes employment sex-discrimination jurisprudence and finds that assumption to be wrong. In this thought-provoking book, Yuracko focuses on how U.S. courts have failed to incorporate the concept of gender nonconformity into their interpretations of Title VII, the federal law barring employment discrimination on the basis of sex, race, color, national origin, and religion. Her main argument is that recent jurisprudence that has extended the scope of Title VII to include “transsexuals” has come at the cost of excluding from protection the people she terms “garden-variety gender-benders.” This is because such cases have been grounded in whether a plaintiff can frame her or his gender identity as something beyond her or his personal control, something that is intrinsic and immutable.

We see evidence of this framing of gender identity as status in courts’ reliance on a medical–legal narrative of trans identity. For instance, courts have ruled that a transgender woman must be permitted to follow female-specific dress codes in her workplace, and vice versa for transgender men in their workplaces. This permission is grounded in the status-based claim that forcing transgender people to present their gender identities in accordance with their sex designation at birth is discriminatory because of the gender dysphoria that such forcing creates. This is the “born in the wrong body” framing of transgender identity. Courts, along with administrative agencies such as the U.S. State Department and state Departments of Motor Vehicles require that transgender people wishing to be formally recognized as the opposite sex to that recorded on their original birth certificates get a medical provider’s note testifying that such a change is medically necessary or at least advised.

A major cost of such a medical–legal narrative of transgender inclusion is that the people who are unable or unwilling to make a status-based claim based on medical necessity have been excluded from Title VII protection. For instance, a person who wishes to pick and choose from the male- and female-designated options listed in a company’s dress code is not covered by Title VII. The one circumstance in which a garden-variety gender nonconformist has won a Title VII lawsuit is the “double bind” scenario. In this scenario, the plaintiff must demonstrate that he or she was disadvantaged for following the very gender norms that an employer deems necessary for succeeding in a particular job.

The quintessential double-bind case is the 1989 Supreme Court case, Price Waterhouse v. Hopkins. The plaintiff in that case, Ann Hopkins, was denied promotion in a corporate accounting firm largely on the basis that she dressed and acted in masculine ways. Senior executives had written memos stating that she was too aggressive. At the same time, being aggressive was an attribute that the firm deemed necessary for advancement to the status of senior executive. These demands placed Hopkins in the double bind of not being able to advance in her company. She was damned if she followed masculine stereotypical behavior, and damned if she followed feminine stereotypical behavior. There literally was no path to success for her to follow. Yuracko provides new insight on this much-discussed case by emphasizing that the Court did not in fact challenge binary gender norms and stereotypes. Rather, it narrowly ruled that an employer could not use gender stereotypes to place an employee in a lose-lose scenario.

Yuracko uses the double-bind scenario to segue into her discussion of many other subsequent cases in which courts have clearly upheld binary gender norms. For instance, in the 2006 case of Jespersen v. Harrah’s Operating Company, the Ninth Circuit ruled that a female casino bartender must wear makeup in accordance with its gender-specific grooming and appearance code. The court concluded that such grooming requirements did not hinder Jespersen’s ability to perform her job. Furthermore, the casino’s ban on male bartenders wearing makeup and earrings did not hinder them from performing the job of casino bartender. Courts have also made several decisions ossifying binary gender norms in employment by allowing that certain kinds of sex discrimination are benign and a bona fide occupational qualification (BFOQ). For instance, a nursing home may favor women in its hiring based on patient demand for female caregivers (p. 72). And in the case of jobs where sexiness is inherent to business definition and marketplace success, such as stripping, courts have also upheld sex discrimination (p. 73).

Another important contribution of this book is Yuracko’s discussion of how courts have adjudicated Title VII cases involving racial discrimination. In contrast to Title VII sex-discrimination jurisprudence that has explicitly upheld sex-based differences, she points out that courts have explicitly rejected claims of racial difference. In the 2001 case of Rogers v. American Airlines, the court upheld a grooming standard that explicitly prohibited women from wearing cornrow hairstyles. In its reasoning, the court returned to the concept of status, but it rejected the African American female plaintiff’s claim that such a hairstyle was culturally important. Instead, it ruled that hairstyles are mutable and a matter of choice, rather than group-based status.

Gender Neutrality and the Law will be useful both to public law and political theory scholars interested in gender. I appreciated the focus on gender nonconformity, but I also hoped that the author would have done a bit more in helping us think through the implications of her conclusions for contemporary scholarly discussions about transgender Civil Rights advocacy. At several points throughout the book, Yuracko states that her intention is not to “reverse” the “current trend of expanding protection” to “transsexuals.” Rather, she calls for “a moment of pause” so that we can “explore the often inexplicit values and beliefs that have been driving this expansion and to raise a note of caution about unintended and largely unrecognized consequences” (p. 174). I agree that a liberal assimilationist strategy of transgender inclusion excludes individuals (both transgender and cisgender) who either cannot or will not conform to the male–female binary. However, I did not find any evidence in the book that those of us involved in such advocacy are unaware of the costs and benefits of this particular kind of Civil Rights strategy.

To the contrary, there are several trans legal and political theory scholars who have written about the costs and benefits of a trans rights-based strategy. Political theorist Paisley Currah writes about this, as do legal scholars Dean Spade, Gabriel Arkles, and many others. I also wondered why Yuracko exclusively used the term “transsexual” instead of “transgender” or “trans.” Relatedly, the use of “preoperative transsexual” throughout the book feels dated. Trans scholars and activists have worked hard to debunk the myth that there is a single “sex change operation.” Instead, there exist many medical and nonmedical options that individual transgender people can choose.

In the end, it is not clear to me what the value of “pausing” entails. Are we being asked to pause in order to take a different route? I did not see Yuracko calling for a dismantling of the gender binary. And it seems an odd choice to blame trans Civil Rights advocacy for strengthening binary gender norms, especially if the author’s objective is not to loosen such norms.