R&R

The Right to Transgender Identity  (with J. Remy Green)

Forthcoming in The Cambridge Handbook of Experimental Jurisprudence, ed. Kevin Tobia, Cambridge University Press, (2024).

In this chapter, we posit and explore the existence of a right to transgender identity, understood as the right for transgender people to enjoy equal protections under the law such that they are not excluded from normal social and political practices due to their transgender status. Within the context of American constitutional law, we ask what level of judicial scrutiny ought to be applied to cases involving transgender discrimination as transgender discrimination (as opposed to as a sub-category of sex discrimination), a particularly pressing (and still unanswered) question given the recent explosion of anti-transgender legislation. We argue that transgender people constitute a suspect class — a designation reserved for insular minority groups that have been established to be particularly vulnerable to discrimination — which would trigger the highest level of constitutional protection. With the methodologies of experimental jurisprudence, we approach suspect classification from a distinctly empirical perspective, reviewing the available data and concluding that transgender people unambiguously meet the criteria for suspect classification on empirical grounds. Suspect classification typically triggers strict judicial scrutiny, so our finding requires that transgender discrimination cases receive strict judicial scrutiny, calling into question the both the legality of many recent anti-transgender laws nation-wide, as well the (limited) benefit of the doubt judges have offered such laws under the traditional sex discrimination rubric.

There's No Such Thing as a Legal Name (with J. Remy Green)

Columbia Human Rights Law Review, 42(1), (Fall 2021).

The phrase “legal name” appears everywhere, often justifying discrimination against transgender people. And wherever it appears, it seems to come with an assumption that it picks out one, clear such name for each person. So, do “legal” names as the phrase is commonly understood really exist? As far as federal and most state law is concerned, it turns out the answer is a clear 'no'. This article seeks to highlight the legal, moral, and philosophical wrongness of the notion that people have one uniquely identifying legal name. To do that, we survey the status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We argue this common notion that every person has a single, clearly defined “legal name” is a kind of collective delusion we all seem to share (emerging somewhere in the late twentieth century), but is not grounded in legal or social reality.  To address this harmful delusion, we present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names when referring to them. Engaging with legal theory, feminist philosophy, and philosophy of language, we discuss the social function of names and argue that names enable people to communicate important social information about themselves—which can include their gender, religion, and familial relations. Thus, we conclude by arguing that individuals and legal institutions have a normative responsibility to respect peoples’ preferred legal names, thereby allowing them to authentically represent these facets of their social identities. 

'You're My Doctor?': Stereotype-Incongruent Identities Impair Recognition of Incidental Visual Features' (with Jorge Morales and Chaz Firestone)

Published on PsyArXiv (2021); Abstract published in Journal of Vision (2019)
Stereotypes shape our judgments about people around us—as when women are assumed to be students, research assistants, or nurses rather than professors, principal investigators, or doctors. Can stereotypes also intrude on representations that have nothing to do with the content of the stereotype? Here, we explore how the assumptions we make about other people impair our ability to process completely incidental, and surprisingly low-level, aspects of their appearance—including even their location in space. We showed subjects headshots of male and female medical professionals, and asked them simply to indicate the direction of the target’s shoulders (left or right)—an extremely straightforward task that subjects performed with near-ceiling accuracy. The key manipulation was a cue on each trial that the upcoming image would be of a “doctor” or a “nurse”, and a statistical regularity in the experiment such that “doctor”-labeled images tended to face one way and “nurse”-labeled images tended to face the other way. Although gender was completely irrelevant to any aspect of the task, subjects were slower to judge the orientation of stereotype-incongruent people (female “doctors” and male “nurses”) than stereotype-congruent people (male “doctors” and female “nurses”), even though the images were labeled arbitrarily. Follow-up experiments showed that this effect couldn’t be explained by the raw surprisingness of, e.g., seeing a man when expecting a nurse; instead, these results suggest that even straightforward forms of statistical learning can be intruded upon by long-held social biases, in ways that alter processing of incidental, basic visual features.