Abstract
In 1974, Geduldig v. Aiello held that pregnancy discrimination is not facially sex discrimination. Only four years later, Congress repudiated Geduldig in the statutory context in the Pregnancy Discrimination Act of 1978. For decades, Geduldig remained largely moribund, as the vast majority of pregnancy cases were brought pursuant to Title VII—and as the courts increasingly recognized that pregnancy discrimination implicated gender stereotypes (and thus sex discrimination) even in the Equal Protection context.
But now, close to five decades later, opponents of transgender equality are trying to give the decision new life. Faced with the prospect of defending government laws and policies targeting “sex changes,” “gender dysphoria,” and more, such opponents have relied on Geduldig to argue that such policies are not facially discriminatory on the basis of sex or transgender status.
These new Geduldig arguments are inconsistent with the Supreme Court’s broader Equal Protection doctrine, and with Geduldig itself. Most courts have, accordingly, rejected them. Nevertheless, a number of courts have credited them, and they are being made with increasing frequency in transgender rights cases. This Essay takes up the Geduldig arguments being made in contemporary transgender rights cases, and explains why such arguments must be rejected.