“The framing of anti-discrimination law through protected classes and the law’s use of the outside gaze to conclude whether or not an act is discriminatory, show that the law utilizes performance in deciding cases and allocating rights.” As a result, Katri argues that if we apply an intrasectional legal analysis of the protected classes relating to gender variant people, we will be able to consider performativity in the context of anti-discrimination law. Through analysis of how ADL is intertwined with performativity, Katri lays out why someone is or is not considered their gender in relation to how sex, gender, and sexuality are constituted legally. Although Katri creates a compelling argument that her rights-based approach will encourage people to “evaluate the privileges that come from having a coherent gender presentation,” this approach may have negative consequences through emphasizing performativity and inhibiting the intertwining of intersectionality within the law. (54, 55, 78)

Considering Justice Gorsuch’s use of the but for clause in Bostock v. Clayton County, but for an emphasis on performativity, we would not foster an environment that forces people to feel like they need to conform to normalized gender behaviors that reinforce cycles of discrimination. As a result, emphasizing performative and rights-based advocacy in an institution that already holds up social structures may simply maintain the extent that unprotected groups are protected under ADLs. 

An intrasectional mindset and performative rights-based advocacy approach highlights how the law reinforces judging people based on gender performance and “adopt[ing] normalized behavior” within their identity. Katri’s analysis highlights how performance plays a crucial role in discriminating against people, however, most people who haven’t thought about how they “perform” in their daily life are likely those who are more protected under the law. As a result, I think this approach could offer protected groups insight into performative components that our society uses to define someone’s gender. This approach will then describe how people often discriminate based on appearance and compare people to protected groups’ performances which could encourage people to think about why the behaviors and performances they engage in are used to discriminate against other people, but not themselves. The intrasectional components of protected classes highlight performativity and what is accepted and treated as right within that class, and therefore could highlight components of gender that not all people are aware of and play a role in raising awareness about what often contributes to discrimination. However, these components highlight how a focus on performativity within the law may benefit protected groups the most. This leads to the question of whether the approach leaves unprotected groups more, less, or similarly unprotected under ADLs. 

Kadri explains that discrimination involves performativity, and argues that if we acknowledge performativity we may be able to make strides in actually protecting groups that ADLs seek to protect. Although this approach could potentially illuminate how a large component of discrimination is based on someone’s appearance and would highlight how there are normalized and distinct appearances expected from different genders, I think this primarily serves protected groups’ understandings of gender and equality. As a result and due to Kadri’s logic, I think this approach could have negative effects on unprotected groups. 

Performativity is a social construct and is therefore reinforced by society and everyday behaviors; as a result, but for constantly constructing and reinforcing performative behaviors, gender performances would not continue in the same manners. Performativity is spotlighted without people’s awareness, and Kadri’s approach deliberately brings performativity into the spotlight when discussing anti-discrimination cases. Arguably, bringing performativity into a legal spotlight requires another societal institution to focus on and emphasize how people perform gender. An emphasis on performativity within law could prompt unprotected people to feel like they need to perform more closely to their gender’s “normalized behaviors,” at least in order to be protected by the law. This emphasis leads to people focusing more closely on “correctly” performing gender and therefore reinforces the performance of gender. But for highlighting the intrasectional components of protected people in law, performativity and normative/correct behaviors would continue to be subconscious features in determining law and discrimination cases, which may actually be for the better. 

The above negative impact on unprotected groups of emphasizing performativity does not include the performance of people who fit into multiple intrasectional categories, which would suggest that intersecting groups may continue to be forced and stuck in between groups through the law focusing on performance within individual groups. Since intersectionality exposes how groups are discriminated against and expected to perform differently, how would highlighting intrasectional aspects help people that are subject to numerous forms of discrimination feel protected by ADLs and not just reinforce the current system of performativity demeaning intersecting groups? This performative framework may highlight to protected groups the idea of a coherent identity and the dynamics that often prompt discrimination; however, it seems unlikely that the approach will better serve unprotected groups through its emphasizing/reinforcing performativity and the outside gaze, and inhibiting the incorporation of intersectionality into the law – which would definitely better serve people that ADLs are meant to protect. 

Source:

Ido Katri, “Transgender Intrasectionality: Rethinking Anti-Discrimination Law and Litigation”

Loren Cannon, “The Politicization of Trans Identity. Chapter 8: ‘But For’ and the Bostock Decision”