Clothes don't make the man (or woman), but gender identity might.

• Author: Levi, Jennifer L.
• Position: Sexuality and the Law

The Ninth Circuit's recent decision in Jespersen v. Harrah's Operating Co., Inc. (1) reflects the blinders on many contemporary courts regarding the impact of sex-differentiated dress requirements on female employees. (2) Although some courts have acknowledged the impermissibility of imposing sexually exploitive dress requirements. (3) they have done so only at the extreme outer limits, ignoring the concrete harms experienced by women (and men) who are forced to conform to externally imposed gender norms.

On the other hand, some transgender litigants have recently succeeded in challenging sex-differentiated dress requirements. (4) This success is duc in part to their incorporation of disability claims based on the health condition associated with each litigant's transgender identity. (5) Such an approach has allowed transgender litigants to introduce evidence of the essentialism of gender identity and its inelasticity for a specific individual. (6) In combining disability claims with sex discrimination claims, transgender litigants have advanced a broader agenda of challenging normative beliefs about gender for all persons, transgender and non-transgender alike.

Postmodern theorists who have exposed the social construction of gender have been instrumental in expanding the scope of sex discrimination laws. By showing that there is nothing natural or essential about stereotypical assumptions about gender--for example, that women are naturally weaker than men--these theorists have moved courts to help both women and men out of the double binds that limit their career advancement. (7) For example, most courts now recognize that enforcing gender-based stereotypes that restrict women from being successful investment bankers (8) or men from being successful nursery school teachers (9) amounts to sex discrimination.

However, there remains a seemingly impenetrable boundary to successful challenges of widely accepted gender norms. This Article argues that until courts understand the inelasticity of gender for most individuals alongside its social construction, sex discrimination claims will have limited utility.

Part I of this Article explores at least one root of the problem influencing courts that hear dress code challenges--something this Article will refer to as "the collective hunch theory," which others have referred to as "normative stereotypes." It then analyzes the Jespersen case and compares it to two other cases where transgender litigants brought challenges to sex-differentiated dress codes. Part I concludes by analyzing how the incorporation of disability claims by the transgender litigants humanized their pain and, arguably, affected the outcomes of their cases. Part II advocates bringing disability claims where available for transgender plaintiffs and responds to some of the criticisms against doing so. Finally, Part III offers suggestions for framing and litigating future dress code challenges pursued on behalf of non-transgender litigants. In the process, it highlights the limitations of the post-modern insight that gender is socially constructed and its potential negative effect on cases brought by non-transgender litigants. Part III concludes by reconciling a seeming conflict between the social construction theory of gender and the arguably essentialist position advanced by this Article.

1. IGNORING HER PAIN, ACKNOWLEDGING THEIRS

   1. Collective Hunch Theory

      Unfortunately, the post-modem insight that gender is socially constructed (10) has not broadly convinced courts that every gender-based distinction or requirement in the workplace is impermissible sex discrimination. The limits of this insight are best seen in dress code cases, where the Jespersen outcome--affirming a sex-differentiated dress and appearance requirement--is common. (11) Courts seem to reject these claims based on the principle that, at some point, there is a zone of permissible gender-based distinction based on what scholar Anthony Appiah calls "normative stereotypes." (12)

      Appiah defines a "normative stereotype" as a social consensus on how members of a group should "behave in order to conform appropriately to the norms associated with membership in their group." (13) He argues that normative stereotypes and the different treatment groups receive as a result of them are not negative or invidious because the stereotypes are based on social norms, not intellectual error. (14) In arguably reductive fashion, Appiah maintains that normative stereotypes are unobjectionable because they are different from "false stereotypes," reflected in, for example, negative and factually inaccurate racial stereotypes, and "statistical stereotypes," which are sometimes true for some members of a group but not all. (15) Appiah's analysis, while helpful in describing differences among types of stereotypes, does not explain why the ubiquity of social norms condones them. Instead, Appiah suggests that social norms and normative stereotypes may be enforceable because, at some level, the support for them is so widespread. This unarticulated justification for creating an exception to nondiscrimination law drives the Jespersen court's analysis.

      A different characterization of the motivating principle behind the Jespersen holding, as well as other cases upholding sex discriminatory dress codes, is "the collective hunch theory." Under this theory, even if there are some individuals harmed by certain gender-based requirements, courts refuse to conclude that the imposition of gender-based requirements could be actionable, particularly when imposed on non-transgender individuals. The collective hunch is that gender requirements, especially those concerning dress and appearance, are acceptable, and should survive challenge in most circumstances. What seems to fuel this collective hunch theory is that everyone has a gender identity and expression, meaning an internalized or felt sense of being male or female, and that for most people who identify as female, the expression of that gender identity coincides with feminine, while for most people who identify as male, the expression of that gender identity coincides with masculine. (16) Many judges hearing a challenge to a sex-differentiated workplace rule imagine how they themselves might respond and surmise that if they are comfortable with the rule, then others should be as well. (17)

   2. Jespersen Analysis

      In Jespersen v. Harrah's Operating Co., Inc., plaintiff Darlene Jespersen, an employee of defendant company for twenty years, challenged a sex-differentiated grooming policy imposed on Harrah's employees. (18) Among other things, the policy required female, but not male, bartenders to tease, curl, or style their hair and wear stockings and nail polish. (19) It also required them to attend a "Personal Best" program which taught them how to maximize their appearance and conform to that appearance on a daily basis at their job. (20)

      Jespersen found the requirements so inconsistent with her gender identity that she ultimately declined to comply with them. (21) Prior to the implementation of the grooming code, Jespersen's employer had suggested, but not required, that women employees wear make-up; Jespersen tried wearing makeup for a short period of time, (22) but stopped, however, when she found that wearing it "made her feel sick, degraded, exposed, and violated." (23) As the Ninth Circuit explained, she "felt that wearing makeup 'forced her to be feminine' and to become 'dolled up' like a sexual object, and ... 'took away [her] credibility as an individual and as a person."' (24) Notably, during the litigation, Harrah's never questioned Jespersen's sincerity regarding her response to the make-up requirement.

      As a result of Jespersen's refusal to cooperate with the newly imposed grooming policy, Harrah's terminated her. (25) Jespersen sued, alleging that the "Personal Best" requirement constituted disparate treatment based on sex discrimination. (26) The basis of her claim was simple--the "Personal Best" program required women, but not men, to conform to certain dress and make-up requirements and, therefore, constituted disparate treatment based on sex. (27) According to the Ninth Circuit and well-established law, in order to prevail, Jespersen only had to prove that "but for" her sex, she would have been treated differently. (28) A clearer case could hardly have been framed.

      Notwithstanding the clarity and simplicity of her claim, the Ninth Circuit rejected it in a surprisingly brief decision, finding that, although different standards were imposed on male and female employees, there was no class-based harm; Jespersen could not demonstrate that the differential treatment amounted to an unequal burden on women. (29) Citing a broad doctrinal exception to the general rule for proving a disparate treatment claim, the court explained that it had "previously held that grooming and appearance standards that apply differently to women and men do not constitute discrimination on the basis of sex." (30) The court's interpretation of this doctrinal exception was that, in the ease of differential dress and appearance standards, the court should apply an unequal burdens test that focused on whether female employees are more significantly burdened than their male counterparts. (31)

      As an initial matter, the Ninth Circuit's suggestion that an "unequal burdens" test is automatically applicable in dress code cases conflicts with precedent. Since dress codes and sex discrimination are not mutually exclusive categories, many courts have delineated the circumstances where sex-differentiated dress codes violate prohibitions against discrimination. They have not uniformly done so by comparing requirements for male and female employees in the workplace. (32) While it is hard to reconcile these inconsistent outcomes, some generalizations can be drawn, at least as to when dress codes violate sex discrimination prohibitions. For...