Frontiers of sex discrimination law.

• Author: Clarke, Jessica A.
• Position: Book review

GENDER NONCONFORMITY AND THE LAW. By Kimberly A. Yuracko. New Haven and London: Yale University Press. 2016. Pp. viii, 248. $85.

INTRODUCTION

A short time ago, the argument that discrimination on the basis of sexual orientation is a type of sex discrimination was considered a "risky" tactic that had achieved "little traction" in litigation. (1) One reason was the fear of backlash from those worried that expanding sex discrimination law so far would upset all sex classifications, even those on restroom doors. (2)

The terrain of this debate is shifting rapidly. (3) In 2015, the Equal Employment Opportunity Commission (EEOC) interpreted Title VII's ban on sex discrimination to prohibit sexual orientation discrimination, for reasons including its assessment that sexual orientation discrimination and harassment "[are] often, if not always, motivated by a desire to enforce heterosexually defined gender norms." (4) Although the EEOC's opinion does not bind federal courts, it has prompted several to reconsider whether sexual orientation discrimination is a species of sex discrimination. (5) In July 2016, the Seventh Circuit observed that district courts were "beginning to question the doctrinaire distinction between gender nonconformity discrimination and sexual orientation discrimination and coming up short on rational answers." (6) While it too came up short on rational reasons for the distinction, the Seventh Circuit was unwilling to disturb its pre-Lawrence v. Texas (7) precedents holding that sex and sexual orientation discrimination must be distinguished. (8) That circuit is now reconsidering the issue en banc. (9) Other circuits may soon revisit the question as well. (10)

On the restroom front, in March 2016, North Carolina passed a law commonly known as "HB2" requiring that multiple-occupancy restrooms in schools and public agencies be "designated for and only used by persons based on their biological sex." (11) In response, the Department of Justice sued North Carolina to enforce the Obama Administration's position that federal laws prohibiting sex discrimination require that individuals be permitted to use restrooms in accord with their gender identities. (12) Attorney General Loretta Lynch delivered public remarks condemning North Carolina's action. Addressing the transgender community, she said, "[N]o matter how isolated or scared you may feel today, the Department of Justice and the entire Obama Administration wants you to know that we see you; we stand with you; and we will do everything we can to protect you going forward." (13) Soon after, eleven states brought suit against various federal agencies in a Texas federal court, seeking to preempt any action to enforce the administration's policy. (14) This past year also saw important developments in G.G. v. Gloucester, a case challenging a Virginia school board's refusal to allow a transgender boy known by his initials "G.G." to use the boys' restroom at school. (15) Last April, the Fourth Circuit Court of Appeals issued an opinion deferring to the Department of Education's position that its regulations require that schools allow students to use restrooms consistent with their gender identities. (16) As a result of that decision, the school board was ordered to permit G.G. to use the boys' restroom. [right arrow] But the Supreme Court stayed that order and granted the school board's petition for certiorari. (18) Before the Supreme Court could decide the case, the Trump Administration withdrew the Obama Administration's position on restroom use by transgender students. (19) Accordingly, the Supreme Court remanded G.G.'s case to the Fourth Circuit so that circuit could reconsider the issues in light of the change in administration policy. (20) It remains uncertain how these recent developments will affect other pending cases on the restroom question.

Courts, advocates, and commentators grappling with these issues would do well to consider Kimberly Yuracko's new book, Gender Nonconformity and the Law. (21) This impressive book offers a rigorous and careful survey of developments in sex discrimination law over the past three decades, identifying the principles that explain the law's expansion to protect gender-nonconforming workers. The book's starting point is the Supreme Court's 1989 decision in Price Waterhouse v. Hopkins, in which the Court held: "In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." (22) Title VII forbids an employer from acting on gender stereotypes, whether "by assuming or insisting that [employees] match[ ] the stereotype associated with their group." (23) Thus, "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." (24)

Yuracko's book is concerned with a puzzle. Courts have been willing to extend Price Waterhouse'& reasoning to men who face discrimination because they are regarded as effeminate (pp. 18-20), and to individuals who are targets of bias on account of transgender identities (pp. 21-23). But courts have stopped short of protecting the "garden-variety gender bender [ ]" in a series of cases on sex-specific grooming requirements (p. 24). The most notable of these is the Ninth Circuit's 2006 decision in Jespersen v. Harrah's Operating Co. (25) In that case, Darlene Jespersen, a female bartender at Harrah's casino, sued after the casino implemented a new grooming code requiring that women, but not men, wear makeup. (26) Jespersen, by all accounts a successful bartender, "did not wear makeup on or off the job" because "it would conflict with her self-image." (27) She argued that the new policy would make her feel demeaned and interfere with her ability to do her work. (28) The court did not see this as sex discrimination. (29)

Makeup requirements for women might seem to violate the most basic principle of nondiscrimination--the idea that men and women should be treated the same. But Yuracko's book explains how courts reject this neutrality principle when it might disrupt conventional gender norms (pp. 44-46). Courts refuse to take the thin, formal concept of sex equality to its logical ends, looking instead to thicker, more socially grounded principles--such as "antisubordination," meaning a commitment to dismantling caste-like systems of hierarchy; "status" protection, meaning the idea that individuals should not be punished for those aspects of their gender identities that are immutable; and "perfectionism," (30) meaning, for Yuracko's purposes, the promotion of intellectual flourishing and human development (pp. 9-10). Courts regard makeup requirements as trivial requests for workplace conformity, not as affronts to any deeper principle. By contrast, transgender individuals are more likely to win their cases because courts regard gender identity as immutable--a medical condition that an individual cannot change (pp. 92-95). The same goes for those effeminate men who are penalized for their "way of being in the world" in terms of mannerisms and behavior--aspects of personality that cannot be changed in the same way a worker might change clothes (p. 99).

Gender Nonconformity and the Law's primary contribution is to map out the principles underlying sex discrimination doctrine. Not only does this map lead to solutions to doctrinal puzzles, (31) it also allows readers to undertake their own normative assessments of the "often inexplicit values and beliefs" that might guide the expansion of sex discrimination law to new frontiers (p. 174). Although there is a voluminous literature on the law of sex stereotyping, no other work offers a comparable level of comprehension in explaining the principles that run through the law of gender nonconformity. Yuracko's book is to be commended for embracing the complexity of this area of law while offering readers clarity and insight.

While description, rather than normative analysis, is the book's main goal, it sounds a cautionary note about status-protection arguments (pp. 7-8). The premise that sex equality means the right to live in accord with one's immutable masculine or feminine identity imperils the legal claims of those who, like Darlene Jespersen, seek to defy some of the expectations for feminine behavior without transitioning to a masculine gender identity (pp. 104-05). Worse still, it reinforces the idea that traditional gender identities are innate and natural, the inevitable causes of social practices of gender segregation rather than their effects (pp. 108-09). Yuracko argues that, as courts increasingly require plaintiffs to prove that their gender identities are "fixed, stable, and legally meaningful" to achieve protection, they shut down a "wider range of gender possibilities that might lead to more personally fulfilling lives for individuals and more creative and adaptable environments in the workplace" (p. 174).

This Review will make use of the principles skillfully mapped out in Gender Nonconformity and the Law to chart the course of legal developments for LGBT plaintiffs occurring after the book was written. It will ask whether these developments should worry those who seek to expand the social space for gender creativity beyond conventional masculinity and femininity. Part I summarizes Yuracko's typology of theories of gender nondiscrimination, discusses her argument that this body of law is on a trajectory toward protecting status, and explains why the status-protection theory is troubling. Part II examines how these theories have played out in recent cases expanding sex discrimination law to protect against more forms of anti-LGBT discrimination. Yuracko's prescient book offers tools that help explain why sex discrimination arguments have gone from nonstarters to front runners for LGBT rights.

Part II also asks...