INTRODUCTION 2 II. ON TERMINOLOGY: GENDER IS FOR ADJECTIVES,
SEX IS FOR NOUNS 9 III. HISTORY AND THEORY OF GENDER BENDING:
HEREIN OF HIC MULIER AND HAEC VIR 18 IV. THE CASE LAW OF GENDER BENDING 36
A. Herein of Ann Hopkins and Bennie Smith 36
1. Hopkins and Sex Stereotyping 36
2. Smith, Strailey, and Effeminacy 46
B. Applying Hopkins 57
1. Sexual Orientation and Hostile Environments 57
2. Men in Dresses (or "Rebel-Rousing, Skirt-Wearing
3. Feminine Women 69 V. INCORPORATING THE CONCEPT OF GENDER DISCRIMINATION INTO
LEGAL DOCTRINE 75 VI. BEYOND TITLE VII (AND BEYOND SAMENESS
AND DIFFERENCE?) 94
The word "gender" has come to be used synonymously with the word "sex" in the law of discrimination. In women's studies and related disciplines, however, the two terms have long had distinct meanings, with gender being to sex what masculine and feminine are to male and female. Were that distinct meaning of gender to be recaptured in the law, great gains both in analytic clarity and in human liberty and equality might well result. For, as things now stand, the concept of gender has been imperfectly disaggregated in the law from sex on the one hand and sexual orientation on the other. Sex and orientation exert the following differential pull on gender in current life and law: When individuals diverge from the gender expectations for their sex--when a woman displays masculine characteristics or a man feminine ones--discrimination against her is now treated as sex discrimination while his behavior is generally viewed as a marker for homosexual orientation and may not receive protection from discrimination. This is most apparent from a comparison of Price Waterhouse v. Hopkins,(1) in which the Supreme Court held it to constitute impermissible sex stereotyping to advise a female candidate for an accounting partnership that she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled.... wear jewelry," and go to "charm school,"(2) with cases upholding an employer's right to fire or not to hire males specifically because they were deemed "effeminate."(3)
This differential treatment has important implications for feminist theory. It marks the continuing devaluation, in life and in law, of qualities deemed feminine. The man who exhibits feminine qualities is doubly despised, for manifesting the disfavored qualities and for descending from his masculine gender privilege to do so. The masculine woman is today more readily accepted. Wanting to be masculine is understandable; it can be a step up for a woman, and the qualities associated with masculinity are also associated with success.
We are in danger of substituting for prohibited sex discrimination a still acceptable gender discrimination, that is to say, discrimination against the stereotypically feminine, especially when manifested by men, but also when manifested by women. Ann Hopkins, I fear, may have been protected only because of the doubleness of her bind: It was nearly impossible for her to be both as masculine as the job required and as feminine as gender stereotypes require. But the Supreme Court seems to have had no trouble with the masculine half of Hopkins's double bind; there is little indication, for example, that the Court would have found it to be sex discrimination if a prospective accounting partner had instead been told to remove her makeup and jewelry and to go to assertiveness training class instead of charm school.
Therefore, quite apart from the concerns we have for men, particularly effeminate men, in and of themselves, it is important for women and feminists to concern themselves with the treatment of the effeminate man.(4) This is because, analogous to the argument made by those who seek to integrate pink-collar ghettos, it may be that certain behaviors are just like certain jobs--they will not be valued unless and until men can feel free to engage in them. So long as stereotypically feminine behavior, from wearing dresses and jewelry to speaking softly or in a high-pitched voice, to nurturing or raising children, is forced into a female ghetto, it may continue to be devalued.
One might propose that "gender" be added to "sex" as a prohibited basis for discrimination. This would in some respects be analogous to the inclusion of both "race" and "color." For reasons I shall explain, I do not propose that this be done. Instead, I argue that, at least under Title VH, the existing statutory language and doctrinal categories, if correctly applied, already provide the necessary protection to both effeminate men and feminine women, as well as their masculine counterparts. As to the requirement that employees conform their gender to their sex merely for the sake of such conformity--that women be feminine and men masculine--this is already outlawed by the plain language of Title VII as well as by the prohibitions on sex stereotyping outlined by the Supreme Court. It is impermissible disparate treatment. Thus, shocking though it may be to some sensibilities, not only masculine women such as Hopkins, but also effeminate men, indeed even men in dresses, should already unequivocally be protected under existing law from discrimination on the basis of gender-role-transgressive behavior. As to categorical discrimination on the basis of gendered characteristics--the requirement by an employer that, for example, all those in a certain job, regardless of sex, display stereotypically masculine traits--this, too, is open to challenge under existing doctrine. Discrimination against the feminine is likely to have a disparate impact on women, who are disproportionately likely to be feminine and not masculine; it should be permitted only if job-related and justified by business necessity. Men discriminated against for displaying feminine characteristics should also have standing to raise such claims.(5)
In seeking to shape a space for gender in the law and theory of sex discrimination, I am arguing not so much for a change in the law as for a reconceptualization of the existing law, the cases that apply it to gender questions, and the issues presented by such cases. This Article will thus seek to demonstrate that a wide variety of cases and fact patterns not generally seen to have much to do with one another can all be better understood if organized for purposes of analysis under the rubric of gender; these include cases involving sex-specific clothing regulations, stereotypically feminine behavior by both men and women, sexual harassment of both women and men, jobs seen to require either predominantly masculine or predominantly feminine traits, single-sex education, sexual orientation, and transsexuality. To say that I do not primarily urge a change in the law is not to say that my analysis is intended to be of merely academic interest, however. Rather, my hope is that it may assist, not just scholars, but litigators, judges, employers, and policymakers confronted by the situations presented in these cases to structure their responses to them so as to realize more fully the goals of liberty and equality of the sexes already embodied in the law.
The next two parts of this Article provide the theoretical underpinnings for the discussion of case law and doctrine that follows. Part 11 defines the terms I shall be using throughout the Article, explaining how gender and sex came to be conflated in the language of the law, why it is important to distinguish between them, and what relationships they can be seen to have to one another and to sexual orientation. Part III more fully explores the concept of gender; it makes use of scholarship from a variety of disciplines, including psychology, sociology, history, and musicology, to examine the component parts of gender, masculinity and femininity, and how they are perceived and valued. The central themes that emerge from this interdisciplinary look at gender are implicit as well in the case law. Among them are that gendered characteristics are often bundled; that things seen as masculine are often more highly valued than those seen as feminine, at least in part because the latter are associated with women; and that a woman exhibiting masculine characteristics is today viewed, both descriptively and normatively, quite differently from a man who exhibits feminine ones. Part HI also begins the analysis of the various sex/gender combinations whose treatment by the law will form the core of this Article--masculine men, masculine women, feminine women, and effeminate men.
Part IV forms the centerpiece of my discussion of gender discrimination in the Title VIII case law. Subsection IV.A.1 begins with a thorough exposition of the Hopkins case, from which much of the rest of my analysis of gender discrimination derives. It argues that Hopkins marks the third of four generations of sex-stereotyping cases: the first focused on the assumption that an entire sex conformed to gender stereotypes; the second on the assumption that individual members of the sex did; and the third on individuals penalized because their gender behavior did not conform to stereotypical expectations. Fourth-generation stereotyping claims, of the sort I endorse in this Article, might take on the stereotyping of the job and its requirements rather than of the person holding or applying for it--challenging the assumption that qualities gendered masculine (or, more rarely, feminine) are essential to success rather than demanded merely by stereotypical expectations.
The remainder of Part IV applies the lessons of Hopkins to the entire spectrum of gender discrimination under Title VII. Together, these sections explore all portions of Hopkins's double bind and the legal implications of the various ways it might be dissolved. Hopkins, recall, was caught between two inconsistent employer demands--that she be masculine to do her job and simultaneously feminine to conform to the...