The central mistake of sex discrimination law: the disaggregation of sex from gender.

• Author: Franke, Katherine M.

INTRODUCTION

Contemporary sex discrimination jurisprudence accepts as one of its foundational premises the notion that sex and gender are two distinct aspects of human identity. That is, it assumes that the identities male and female are different from the characteristics masculine and feminine. Sex is regarded as a product of nature, while gender is understood as a function of culture. This disaggregation of sex from gender represents a central mistake of equality jurisprudence.

Antidiscrimination law is founded upon the idea that sex, conceived as biological difference, is prior to, less normative than, and more real than gender. Yet in every way that matters, sex bears an epiphenomenal relationship to gender; that is, under close examination, almost every claim with regard to sexual identity or sex discrimination can be shown to be grounded in normative gender rules and roles. Herein lies the mistake. In the name of avoiding "the grossest discrimination," that is, "treating things that are different as though they were exactly alike,"(1) sexual equality jurisprudence has uncritically accepted the validity of biological sexual differences. By accepting these biological differences, equality jurisprudence reifies as foundational fact that which is really an effect of normative gender ideology. This jurisprudential error not only produces obvious absurdities at the margin of gendered identity, but it also explains why sex discrimination laws have been relatively ineffective in dismantling profound sex segregation in the wage-labor market,(2) in shattering "glass ceilings" that obstruct women's entrance into the upper echelons of corporate management,(3) and in increasing women's wages, which remain a fraction of those paid men.(4)

The targets of antidiscrimination law, therefore, should not be limited to the "gross, stereotyped distinctions between the sexes"(5) but should also include the social processes that construct and make coherent the categories male and female. In many cases, biology operates as the excuse or cover for social practices that hierarchize individual members of the social category "man" over individual members of the social category "woman." In the end, biology or anatomy serve as metaphors for a kind of inferiority that characterizes society's view of women.

The authority to define particular categories or types of people and to decide to which category a particular person belongs is a profoundly powerful social function. While the state has always performed this role, its actions have rarely been subject to equal protection scrutiny. Given the epiphenomenal relationship between identity and equality, the Fourteenth Amendment and Title VII should apply with equal force to acts of classification as well as to disparate treatment of classes.(6) Rather than accepting sexual differences as the starting point of equality discourse, sex discrimination jurisprudence should consider the role that the ideology of sexual differences plays in perpetuating and ensuring sexual hierarchy.

A reconceptualization of the two most fundamental elements of sexual equality jurisprudence is necessary to correct this foundational error. First, sexual identity -- that is, what it means to be a woman and what it means to be a man -- must be understood not in deterministic, biological terms, but according to a set of behavioral, performative norms that at once enable and constrain a degree of human agency and create the background conditions for a person to assert, I am a woman. To say that someone is a woman demands a complex description of the history and experience of persons so labeled. This conception of sexual identity ultimately provides the basis for a fundamental right to determine gendered identity independent of biological sex.

Second, what it means to be discriminated against because of one's sex must be reconceived beyond biological sex as well. To the extent that the wrong of sex discrimination is limited to conduct or treatment which would not have occurred but for the plaintiff's biological sex, antidiscrimination law strives for too little. Notwithstanding an occasional gesture to the contrary, courts have not interpreted the wrong of sex discrimination to reach rules and policies that reinforce masculinity as the authentic and natural exercise of male agency and femininity as the authentic and natural exercise of female agency.

In order to explore these fundamental issues of equality, difference, and identity, I will ask a seemingly simple question: What is the wrong of sex discrimination? Is it the unfair consideration of biological differences between males and females? The resort to archaic notions about the skills, abilities, or desires of men and women? The perpetuation of stereotypical notions of masculinity and femininity? Or the unwelcome instigation of sexual behavior in inappropriate settings, such as the workplace? Close examination reveals that both the case law and the theory of sex discrimination draw in kaleidoscopic fashion from each of these formulations to determine what it means to be discriminated against because of one's sex.(7) The result is an unstable conception of both who it is that deserves equal protection of the laws and what it would mean to treat her fairly. While instability is not an intrinsic flaw in the doctrine, the theory's surface chaos masks a deeper reality within sexual equality jurisprudence -- that the wrong of sex discrimination is premised upon a right of sexual differentiation, that is, a fundamental belief in the truth of biological sexual difference. This belief in the truth of sexual identity inevitably reifies masculinity as the natural expression of male subjectivity and femininity as the natural expression of female subjectivity. In accepting this belief, the law has played a significant role in perpetuating, rather than dismantling, sexual inequality.

In the end, the answer to the question "what is the wrong of sex discrimination?" depends upon one's theory of what it means to be discriminated against because of one's sex. A complete account of what it means to be discriminated against because of one's sex must include an account of the term "sex." Defining sex in biological or anatomical terms represents a serious error that fails to account for the complex behavioral aspects of sexual identity. In so doing, this definition elides the degree to which most, if not all, differences between men and women are grounded not in biology, but in gender normativity. Ultimately, there is no principled way to distinguish sex from gender, and concomitantly, sexual differentiation from sexual discrimination.

The metaphysics of sexual difference has always been fundamental to the law's consideration of the rights of women. In an effort to imbue the category "female" with positive meaning, many cultural feminists make the same mistake -- confusing, or at least conflating, maleness with masculinity and femaleness with femininity. According to this theory of sex, gender, and authenticity, women who act like men do so either because of false consciousness or as a strategic assimilative choice necessary for success in male-dominated arenas.(8) This sexual syntax reflects a deep cultural need for and investment in real differences between men and women. Nowhere is this need greater than at service academies(9) and other military institutions,(10) whose educational missions and organizational cultures are committed to the socialization of "a few good men" in the ways of masculinity. Shannon Faulkner's recent experience at the Citadel(11) reflects this ethos: a female cadet is a contradiction in terms.

Of course, the now-discredited view, expressed in Bradwell v. Illinois,(12) that men and women inhabit separate spheres according to a divine order represents the low water mark of women's equality jurisprudence.(13) Yet, the Supreme Court's current doctrine affording women quasi-suspect class status(14) and the availability under Title VII of a complete defense to a showing of sex discrimination when sex-based employment practices reflect bona fide occupational qualifications(15) represent a continued investment in and reification of sexual difference as the grounds for sexual equality jurisprudence.

In Part I of this Article, I will explore the way in which courts and legislatures use sexual classifications and expose the inconsistencies of this practice. These classifications often share a common point of confusion with regard to what is meant by "sex" when the law proscribes discrimination "because of one's sex." Notwithstanding observations by courts(16) and commentators(17) to the contrary, there is a rich legislative and political history to Title VII and sex-based equal protection litigation which helps explain why we have inherited a jurisprudence that is often caught between a commitment to formal sexual equality and a visceral belief in real differences between men and women which the law should take into account. This confusion is compounded by the fact that the term sex' when used in the law often means any one or a combination of the following: biological sex (female or male), core gender identity (woman or man),(18) gender role identity (feminine or masculine), or sexual behavior (genital or reproductive behavior). Consistently applied doctrine might use these distinctions to distinguish the wrong of sexual discrimination from the right of sexual differentiation, yet the case law reveals confused and often inconsistent holdings with regard to the meanings and legitimacy of sex-based classifications.

In Part II, I will show the absurdity of disaggregating sex from gender by looking at the law's treatment of sex discrimination at the margins -- that is, the legal treatment of discrimination claims brought by transgendered people. In these cases the law clearly has produced and enforced a truth of sexual difference. I will also consider a...