Blurred Lines: Sexual Orientation and Gender Nonconformity in Title Vii

• Jurisdiction: United States,Federal
• Publication year: 2015
• Citation: Vol. 64 No. 3

Blurred Lines: Sexual Orientation and Gender Nonconformity in Title VII

Burton F. Peebles

BLURRED LINES: SEXUAL ORIENTATION AND GENDER NONCONFORMITY IN TITLE VII

ABSTRACT

Title VII's prohibition of discrimination on the basis of sex is read broadly to include gender nonconformity. Although social scientists have documented the historic link between the homosocial performance of sexual orientation and the achievement of hegemonic masculinity within the modern workplace, courts continue to struggle with the task of defining the scope of protected gender nonconforming conduct. As many within the lesbian, gay, bisexual, and transgender community continue to demand equal access, recognition, and employment opportunity, only twenty-one states provide statutory protections for LGBT persons or their allies, and courts utilize a number of judicial limits in an attempt to readily distinguish claims based on "sex " and those based on "sexual orientation." However well-intended, such tools frustrate the legislative goals underlying Title VII and negate social science that suggests a new, fluid conceptualization of gender normativity is in order—one capable of recognizing sexual orientation's unique role in achieving and reinforcing gender.

Through the use of such sociological research, legal scholarship, and judicial opinions, this Comment examines the complex scope of sex and gender within Title VII jurisprudence. Nominally, this Comment proposes the use of an expansive interpretation of sex and what constitutes discrimination based on sex and discourages the imposition of court-crafted limits to the scope of conduct capable of classification as gender nonconforming. Critically, this Comment does not assert that LGBT identity, and expressive manifestations of such identity, universally fall under the purview of Title VII. Rather, this Comment suggests that social science indicates that sexuality can, and often does, play a pivotal role in the public construction and reinforcement of gender.

This Comment then examines the implications of alternative approaches to expanding protection for sexual minorities, including statutory expansions to class-based, federal civil rights laws and vulnerability scholarship, which advances the abolition of class-based structures as a means of protecting equal employment opportunity in the United States. It concludes that critics of an

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expansive, and more sociologically informed examination of gender, must find solace in the Court's delegated responsibility to interpret and define the scope of discrimination prohibited under Title VII and, instead, focus criticism on the abuse of judicial biases, which mar outcomes and create inconsistencies.

Ultimately, this Comment recognizes the fluidity of gender as a social construction in contemporary, hegemonic society and charges the Court to fulfill its duty to examine the array of conduct, including LGBT identity, association, and outward manifestations of such identity, which may, and often do, serve as building blocks for the achievement of gender within the context of a sex-stereotyping suit.

INTRODUCTION..............................................................................................913

I. DECONSTRUCTING GENDER: A GREAT INTERPRETIVE DIVIDE ..........915

A. The Conventional Approach: Avoiding an Expansive Interpretation of Title VII .......................................................... 915
B. The Sociological Approach: Achieving Masculinity Through Sexuality .................................................................................... 922
C. The Impact of Windsor: New Calls for Equality ....................... 924

II. AN INTERPRETIVE SOLUTION.............................................................926

A. A Brave New World: Expansive Interpretations in an Era of Equal Justice ............................................................................. 926
B. Examining Alternative Approaches: A Statutory Fix? .............. 935

III. LEANING INTO REALITY: CRITIQUES AND PROSPECTIVE CHALLENGES ...................................................................................... 943

A. The Gender-Conformity Problem .............................................. 943
B. A Call to Action: Reenvisioning Civil Rights in the Wake of ENDA......................................................................................... 947

CONCLUSION..................................................................................................950

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Introduction

Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace "because of . . . sex."¹ Since its enactment, courts have struggled in applying its prohibition in the context of gender nonconformity.² While the Supreme Court has found claims of sex-based harassment and discrimination cognizable when carried out by members of the same sex,³ as well as proof of a harasser's sexual orientation sufficient to meet the statutory threshold,⁴ courts have refused to apply Title VII in the context of discrimination "because of sexual orientation.⁵ Nonetheless, many circuits have noted that when "utilized by an avowedly homosexual plaintiff . . . gender stereotyping claims can easily present problems for an adjudicator."⁶ While the Court has recognized claims under Title VII where a female failed to present herself in a manner deemed sufficiently "feminin[e]" within the workplace,⁷ the Court left open the question of whether gender nonconformity extends to conduct perceived to be or actually related with same-sex sexual attraction. In the absence of clarity, federal circuit courts have adopted a variety of imprecise limiting principles in an attempt to avoid unilaterally amending Title VII.⁸

This Comment argues that the scope of discrimination "because of . . . sex" under Title VII⁹ should be read expansively, in light of recent Supreme Court

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jurisprudence,¹⁰ to encompass outward manifestations of gender nonconformity. Such nonconformity should not be limited to mannerisms, gestures, or workplace demeanor but should also be read to include displays of personal identification and affiliations that fall beyond the boundaries of conventional behavior for members of a particular sex. Discrimination motivated in part by a person's gender nonconformity, although used to identify or classify a person as a sexual minority, should fall well within the scope of "but for" discrimination based on sex stereotyping. Finally, this Comment argues that such expansive interpretation of the statutory language, albeit an essential step, may inadequately serve to curb discriminatory animus based on sex, directed particularly toward gays and lesbians whose mannerisms and outward demeanor may meet societal norms surrounding gender but who nonetheless openly identify as gay, lesbian, bisexual, queer, or questioning. Accordingly, this Comment explores an innovative alternative to Title VII's class-based structure that more adequately accounts for exploited vulnerability, universal to the human condition.

First, Part I of this Comment examines the conventional approach to sex-based claims of discrimination under Title VII, paying particular attention to piecemeal expansions in its scope. It then reviews sociological interpretations of sex and gender as analytically distinct concepts and examines the impact of Windsor on contemporary arguments of Title VII's application to sexual minorities. Second, Part II posits an expansive interpretation, encompassing outward displays of same-sex sexual attraction and actual or perceived lesbian, gay, bisexual, and transgender (LGBT)¹¹ identity within the scope of gender nonconformity for Title VII purposes. Finally, Part III discusses the implications and prospective challenges of such an expansive interpretation. It both examines critics and the challenges faced by sexual minorities who, beyond their identification as gay or lesbian, conform to societal norms of gender in stating a claim of discrimination based on sex.

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Part III concludes by briefly exploring a new, more efficient statutory vision that reflects contemporary vulnerability scholarship.

I. Deconstructing Gender: A Great Interpretive Divide

This Part serves primarily to contrast the two major contemporary approaches to examining gender and sex: section A discusses the jurisprudential approach, which both limits the scope of and collapses together the concepts of gender and sex and section B discusses the sociological approach, treating the two as fluid, yet analytically distinct, concepts. This Part then, in section c, examines potential arguments for expanded protections for actual or perceived gender nonconforming gays and lesbians rooted in the U.S. Constitution, in light of recent Supreme Court jurisprudence.

Title VII of the Civil Rights Act of 1964 provides that it shall be an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of . . . sex,"¹² or "to limit, segregate, or classify his [or her] employees or applicants for employment in any way which would . . . tend to deprive any individual of employment opportunities or otherwise adversely affect [their] status as an employee, because of . . . sex."¹³ But what did the statute's drafters understand "sex" to encompass? If gender could be read to fall within the scope of the term "sex," how would it be defined? And, could expressions of sexual orientation ever fall within the boundaries of gender as a sociological construct?

A. The Conventional Approach: Avoiding an Expansive Interpretation of Title VII

Since 1989, the U.S. Supreme Court has recognized "gender" and gender expression as falling within the statutory scope of Title VII.¹⁴ In Price Waterhouse v. Hopkins, the Court expanded the scope...