Tops, bottoms, and versatiles: what straight views of penetrative preferences could mean for sexuality claims under Price Waterhouse.

• Author: Ayres, Ian
• Position: Introduction through II. A Preliminary Study of Attitudes Towards Penetrative Preferences A. Methods, p. 714-740

ESSAY CONTENTS INTRODUCTION I. THE PRICE WATERHOUSE DILEMMA AND PENETRATIVE PREFERENCES A. Current Approaches to the Dilemma B. The Dilemma and Penetrative Preferences: Distinguishing Dimensions of Sexuality C. The Dilemma and Penetrative Preferences: Closer Examination of the Source of Prejudice Against Bi/Homosexuality II. A PRELIMINARY STUDY OF ATTITUDES TOWARDS PENETRATIVE PREFERENCES A. Methods B. Results III. DISCUSSION A. Revisiting the Price Waterhouse Dilemma B. Further Legal Implications Arising from Versatility C. Public Opinion Implications CONCLUSION APPENDIX INTRODUCTION

Many people are familiar with the scene in which an elder relative finds out that someone in the family is in a gay or lesbian relationship and timidly asks, "So which one of you is the man and which is the woman?" Some may also be familiar with the considerably less benign scene in which someone attempts to question a man's masculinity by suggesting that he enjoys being anally penetrated, or to question a woman's femininity by suggesting that she enjoys penetrating others. Employees have been harassed and discriminated against for "tak[ing] it up the ass." (1) These sorts of references, whether oblique and benign or direct and malicious, point to a certain cultural fascination with the dynamics of sexual penetration. Moreover, this fascination echoes the well-documented cultural importance that sexual penetrative dynamics had in ancient societies (2) and continue to have in the LGBT community today. (3) Indeed, many LGBT people carry strongly held preferences about their roles in sexual penetration, preferences that can become a substantial part of their identities within their communities.

There is, however, essentially no empirical understanding of whether the broader, modern-day American heterosexual population tends to judge people according to their "penetrative preferences." (4) Do heterosexuals harbor differential animus toward people with different penetrative preferences? Would heterosexuals be more averse to associating with an LGBT person with a certain penetrative preference? And what relevance could those attitudes and prejudices have to law and society? This Essay makes a preliminary attempt to answer those questions. To do so, we conducted a modest experiment in which we introduced respondents to fictional characters and described the characters' penetrative preferences, with an eye to detecting whether different penetrative preferences might lead to different reactions from our heterosexual respondents.

In doing so, we also introduced respondents to the labels commonly used among gay men: one who prefers to be the penetrating partner is a "top," one who prefers to be the receptive partner is a "bottom," and one who readily engages in both is "versatile." (5) For this preliminary study, we focused primarily on reactions to gay male characters in order to test as many hypotheses as possible within a very short survey. (6) Although our conclusions are stated in general terms and may well apply to attitudes towards lesbian and bisexual women, we have not sought to draw any particular conclusions about that topic with this first study, recognizing that there may be real differences in how female sexuality is perceived. (7)

What we found was that people did respond differently depending on which penetrative preference we assigned to the character. Respondents seemed to expect, and even to prefer in some cases, that male characters, whether gay or straight, be penetrators or "tops." Our results provide a new way to interpret the reach of a key case in antidiscrimination law, Price Waterhouse v. Hopkins, (8) which introduced the legal doctrine concerning gender stereotyping (9) as a form of workplace discrimination. Our findings support the idea that some but not all heterosexual aversion to homosexuals and other gender-nonconforming groups may derive from gender-motivated prejudice.

Section I.A sets the backdrop for understanding why Price Waterhouse doctrine could be informed and modified by taking into account public attitudes towards penetrative preferences. We describe what we call the "Price Waterhouse dilemma": On the one hand, Price Waterhouse says that gender stereotyping must not motivate employment decisions. Since bi/homosexuality defies predominant gender stereotypes, one might therefore expect Price Waterhouse to forbid employers from discriminating against bi/homosexual employees on the basis of sexual orientation. However, Congress has repeatedly failed to include sexual orientation as an explicitly protected category under Title VII. In deference to Congress, even the most progressive of courts have therefore only granted relief to bi/homosexual plaintiffs who focus on their nonsexual (10) gender-nonconformity--such as their manner of speech or dress--rather than on their bi/homosexuality itself.

We argue that courts need not bracket sexuality altogether in order to show deference to Congress. Section I.B advocates distinguishing between sexual orientation and other related but separate dimensions of sexuality that could be perceived as gender-nonconforming, (11) such as a particular penetrative preference. This distinction is important because although Congress has rejected the categorical protection of sexual orientation under Title VII, it has never addressed the question whether penetrative preference, as an independent aspect of sexuality, is protected. Section I.C then additionally argues that, even in the case of sexual orientation, a court can apply Price Waterhouse in a way that protects bi/homosexual plaintiffs, but stops short of categorically including bi/homosexuality within the protections of Price Waterhouse. Echoing Vicki Schultz's discussion of same-sex sexual harassment, (12) we advocate a greater focus on employers' actual subjective motivations under Price Waterhouse, which would leave open the possibility that employers could express kinds of prejudice against homosexuality that are not gender-motivated (e.g., religiously based prejudice). A critical question on summary judgment then becomes how plausible it is that a given instance of alleged prejudice against a bi/homosexual plaintiff was gender-motivated. We discuss how our results regarding penetrative preferences bear on that question.

Part II describes in detail the methods and results of our experiment. Part III then concludes by reconnecting the results to Price Waterhouse doctrine. It also draws in further related questions about other gender-nonconforming groups, public opinion, and the future of the LGBT movement.

1. THE PRICE WATERHOUSE DILEMMA AND PENETRATIVE PREFERENCES

   1. Current Approaches to the Dilemma

      Justice Brennan's plurality opinion in Price Waterhouse v. Hopkins (13) turned the American legal system's attention to the concept of gender stereotyping. He sweepingly declared, "[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.... (14) The opinion held that "[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender" for the purposes of Title VII protections. (15) Ann Hopkins's aggressive personality was viewed negatively because she was a woman, whereas an aggressive man would have been viewed more positively. Price Waterhouse therefore seemed to hold that employers cannot punish employees for possessing a certain trait if they would not also punish a member of the other sex for possessing that same trait--in other words, employers cannot punish gender-nonconformity.

      Conceptually, the reasoning behind Price Waterhouse would seem to permit an enormous range of discrimination claims. (16) Gender stereotyping could potentially include any and all assumptions about the sexual attractions or behaviors that befit people of a given sex. Lesbian women, for example, are discriminated against for violating the stereotype that women must prefer to have sex with men. Moreover, gay men and lesbian women frequently are characterized or identified by a particular appearance or set of behaviors that does not accord with an observer's gendered expectations.

      Still, courts have remained hesitant to apply sex-stereotyping analysis to discrimination cases brought by gay men and lesbian women, insisting that "a gender stereotyping claim should not be used to 'bootstrap protection for sexual orientation into Title VII." (17) This may be because some courts have simply failed to acknowledge the logical connection between the cultural label "gay" and many gendered stereotypes. (18) But even where courts explicitly acknowledge the connection between gender stereotyping and sexual-orientation discrimination, they refuse to extend Price Waterhouse that far. (19)

      A highly salient rationale for this refusal seems to be a sense of judicial restraint: although Price Waterhouse's interpretation of Title VII's broad text could cover bi/homosexual plaintiffs, Congress has had numerous opportunities to expand Title VII to explicitly cover sexual orientation discrimination but has not done so. In Simonton v. Runyon, for example, the Second Circuit wrote, "[W]e are informed by Congress's rejection, on numerous occasions, of bills that would have extended Title VII's protection to people based on their sexual preferences." (20) This rationale invokes what some have called the "rejected proposal" rule of statutory interpretation: courts should disfavor interpretations that were considered, but rejected, by Congress as explicit amendments to the statute. (21) Because Congress has for decades failed to pass the Employment Non-Discrimination Act (ENDA), which would give explicit employment protections to LGBT people, (22) courts tend to believe that interpreting Title VII to cover sexual orientation would contravene...