Reassessing Gender Neutrality

Since the 1970s, advocates have used the term gender neutral to press for legal change in contexts ranging from employment discrimination to marriage equality to public restroom access. Drawing on analyses of all Supreme Court cases, federal courts of appeals cases, and Supreme Court amicus briefs in which the terms gender neutral/neutrality, sex neutral/neutrality, or sexually neutral/sexual neutrality appear, this study examines how US courts have defined gender neutrality and what the scope and limits of its legal application have been. We find that the courts have defined gender neutrality narrowly as facial neutrality, but nonetheless that this limited understanding has transformed some areas of the law, even if it has had little impact on others. Our analysis confirms earlier feminist skepticism about the sufficiency of gender neutrality to guarantee equality but also points to areas in which the law has yet to exploit the idea's significant potential to address discrimination on the basis of sex, sexual orientation, and gender identity.