UCLA Journal of Gender and Law

The last decade has been monumental in the fight for transgender rights, including a growing recognition of transgender identity.  This shift has also created space for those with nuanced gender identities—such as those who are nonbinary—to join the conversation.  Individuals who identify as nonbinary do not identify as “male” or “female,” but rather as both, neither, or something altogether separate.  Nonbinary people use often use alternative pronouns, such as “they/them/theirs,” to refer to themselves.  While these pronouns are increasingly being accepted into the lexicon of American English, the legal field is far behind in its acceptance and use of nonbinary pronouns.

Although the law has made great strides in recognizing nonbinary identity within the last five years, the legal field cannot support the progress of transgender rights until regularly utilizes nonbinary pronouns, such as “they/them/theirs,” in law school classrooms, legal academic writing, and legal practice.  Furthermore, the legal field’s failure to recognize such pronouns is a form of oppressive silencing that serves to uphold a false gender binary while also delegitimizing nonbinary identity.  Critical Race Theory provides a generalizable framework for better understanding this silencing so that transgender rights activists and scholars can effectively resist it.  Specifically, the scholars behind Critical Race Theory had to break the oppressive silencing forced upon them by white academia in order for the ideas, theories, writing, and scholarship of legal scholars of color to be respected in legal academia.  As such, transgender rights activists and scholars can benefit from studying and employing the tactics they used to challenge their silencing.