Abstract
This article suggests that a performative reading of discrimination cases allows for the recognition of intersectional harms and facilitates a broader systemic account of exclusion from resources and opportunities. Revealing the protected category of sex as a prohibition against discrimination on the basis of gender performance, the article considers how signifiers marked on the gendered body shape the protected categories relating to race and ethnicity. The article suggests that racial/ethnic signifiers and sex/gender performance function reciprocally to construct material realities of exclusion from resources and opportunities. Drawing on the trans position in anti-discrimination, the article offers a nuanced reading of discrimination suffered by Jews of Arab decent, the Mizrahim, under Israeli law. It shows that courts could address systemic aspects of individual claims by looking for the intersecting differentiating logics at the root of private discrimination. The article argues that protected legal categories do not reflect pre-legal truths but, rather, constitute them; that when the law prohibits discrimination on the basis of sex, it prohibits discrimination on the basis of gender performance and that gendered performance is always already marked by racial signifiers. Thus, by turning the legal gaze to the racial signifiers of gender performance, intersecting harm can be better accounted for.
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