Endnotes

1. “Nonbinary” has become a common umbrella term to describes a person’s experience or expression of their gender as falling outside of the man/woman gender binary. People who are not exclusively men or women use a variety of other terms to describe themselves (e.g., genderfluid, genderqueer, gender variant, agender, or bigender). Some terms, such as Two-Spirit, exist within a specific cultural context and must be understood within that context. Indian Health Service, Two Spirit, last accessed: April 21, 2022, https://www.ihs.gov/lgbt/health/twospirit/ (“Most Indigenous communities have specific terms in their own languages for the gender-variant members of their communities and the social and spiritual roles these individuals fulfill; with over 500 surviving Native American cultures, attitudes about sex and gender can be very diverse.”). 2. Today, between 1 and 1.5 million adults in the United States identify as nonbinary. Id. 3 “Nonbinary LGBTQ Adults in the United States,” Williams Institute, June 2021 (https://williamsinstitute.law.ucla.edu/publications/nonbinary-lgbtq-adults-us/). 4. Cultures across time and around the world have recognized more than two gender categories. See Samantha Mesa-Miles, Two Spirit: The Trials and Tribulations of Gender Identity in the 21st Century, Indian Country Today (Sept. 13, 2018), https://indiancountrytoday.com/archive/two-spirit-the-trials-and-tribulations-of-gender-identity-in-the-21st-century?redir=1 (describing “Two Spirit,” a term used in Native American culture to describe a third gender); Núria López Torres, Intimate Portraits of Mexico’s Third-Gender Muxes, The New York Times (Oct. 26, 2021), https://www.nytimes.com/2021/09/27/travel/mexico-muxes-third-gender.html (explaining that the concept of a different or third gender existed in several Indigenous societies across North America); Hinduism Case Study – Gender, Harvard Divinity School Religious Literacy Project (2018), https://hwpi.harvard.edu/files/rpl/files/gender_hinduism.pdf?m=1597338930 (describing that Hindu society has long recognized a third gender). 5. Nonbinary LGBTQ Adults in the United States,” Williams Institute, June 2021, at 9 (https://williamsinstitute.law.ucla.edu/publications/nonbinary-lgbtq-adults-us/).6. Nonbinary people are an incredibly diverse group. They are at least as racially diverse as the general population in the US. Approximately 58% of them are white, 16% multiracial, 15% Hispanic or Latinx, and 9% Black or African American. Id. Nonbinary people may have been assigned male or female sex at birth, and they may or may not identify as transgender or intersex.7. A. Russell, Bostock v. Clayton County: The Implications of a Binary Bias, 106 Cornell L. Rev. 1601, 1607 (2021).8. Id. 9. Id. 10. In a landmark 2015 survey, 12% of nonbinary respondents reported having negative experiences with legal services providers in the past year, compared to 5% of trans women and men. The Report of the 2015 U.S. Transgender Survey, NAT’L CTR. FOR TRANSGENDER EQUAL. 11. Many (though not all) nonbinary people ask others call them “they” instead of “he” or “she.”12. The Report of the 2015 U.S. Transgender Survey, NAT’L CTR. FOR TRANSGENDER EQUAL.13. Jody L. Herman, Gendered Restrooms and Minority Stress: The Public Regulation of Gender and its Impact on Transgender People's Lives, 19 J. Pub. Mgmt. & Soc. Pol'y 65, 74–75 (2013).14. The Report of the 2015 U.S. Transgender Survey, NAT’L CTR. FOR TRANSGENDER EQUAL.15. Non-binary attorneys enter public interest jobs at almost four times the rate of other law school graduates. THE NATIONAL ASSOCIATION FOR LAW PLACEMENT, NALP RESEARCH ON NON-BINARY LAW SCHOOL GRADUATES, NALP Bulletin (2020). 16. Dobbin and Kalev, “Why Diversity Programs Fail.” https://hbr.org/2016/07/why-diversity-programs-fail.17. See “Words We’re Watching: Singular ‘They’”, Merriam Webster (2019), https://www.merriam-webster.com/words-at-play/singular-nonbinary-they. 18. Id. 19. Id. 20. In a landmark 2015 survey, 12% of nonbinary respondents reported having negative experiences with legal services providers in the past year, compared to 5% of trans women and men. The Report of the 2015 U.S. Transgender Survey, NAT’L CTR. FOR TRANSGENDER EQUAL. 21. Id. 22. Bianca Wilson & Ilan Meyer, Nonbinary LGBTQ Adults in the United States, THE WILLIAMS INST. (2021). 23. Id. 24. Id. 25. For example, a school policy may require nonbinary students to select a “bathroom gender,” which imposes a “Hobson’s choice” by forcing them to choose between two harmful options.26. A. Russell, Bostock v. Clayton County: The Implications of a Binary Bias, 106 CORNELL L. REV. 1601, 1607 (2021).