Publication Date

Spring 2018

Document Type



Theorists, poets, and artists are taking the lead in advancing the conversation about gender fluidity and the plight of people with non-binary gender identities. This essay is about what practitioners who combat implicit bias in the legal profession can learn from artists and thinkers on the cutting edge of gender non-conforming expression. Understanding how individuals stigmatize, and at times discriminate against, gender fluid people by limited and binary thinking is an important progression in comprehending how implicit bias (specifically against people of color) becomes explicit and influences legal actors including law enforcement and jurors. The tragic shooting of Philando Castile demonstrates how the gender protest can inform the legal profession as to why implicit bias against people of color can become explicitly deadly in a matter of moments. Discussed in this essay is a jury selection technique designed to detect race-based binary thinking by exposing juror expectations of how a client “should” be acting regardless of legality, drawing a comparison with how artists of the gender protest confront society’s expectation of how gender “should” present.

Publication Title

American Criminal Law Review Online