Gay fathers: disrupting sex stereotyping and challenging the father-promotion crusade.

• Author: Meyer, Erin Marie
• Position: Introduction to II. Disrupting the Sex-Stereotyped Father, p. 479-507

This Article addresses the problematic perpetuation of sex-stereotyped parenting roles by courts, commentators, and politicians to whom this Article will refer as the "father-promotion crusaders." (1) These crusaders assert that "children need a father" and proceed to support this claim by defining "father" in various ways, all of which rely upon sex stereotypes. The promotion of sex stereotyping in the realm of parenting stands in contrast to an anti-sex-stereotyping norm that has begun to take hold in the realm of employment since 1989, the year in which the Supreme Court recognized sex stereotyping in the workplace as a form of sex discrimination in Price Waterhouse v. Hopkins. (2) In that case, the Supreme Court acknowledged that "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." (3) The Court held that a female employee who failed to receive a promotion to partnership in her accounting firm because she did not conform to female sex stereotypes could bring a sex discrimination claim under Title VII. A plurality of the Court explained that sex stereotyping in the workplace is of legal relevance because:

[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, for 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. (4) Following Price Waterhouse, other courts have acknowledged that sex discrimination in the form of sex stereotyping is also actionable where male employees face discrimination in the workplace because they fail to conform to male sex stereotypes. For example, the First Circuit, citing Price Waterhouse, has stated that:

[J]ust as a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity ... a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity. (5) In response to these cases, employers have begun to educate managers, supervisors, and employees to raise awareness of sex stereotyping in the workplace and the threat of legal liability for those who engage in it. For example, one guidebook for employers suggests using "in-house seminars and role playing sessions" to emphasize the "consequences of wrongful stereotyping" by explaining how "phrases such as 'she is too macho' or 'he acts too femininely' on an interview evaluation can lead to claims of sexual stereotyping and potential liability." (6)

However, despite the Court's admonition in Price Waterhouse that employers cannot insist that their employees conform to sex stereotypes and some employers' efforts to eradicate such stereotyping from their workplaces, other cases limit the reach of Price Waterhouse. These cases hold that sex-differentiated personal appearance standards in the employment context do not per se violate Title VII. The courts in these cases have found that employers may be able to justify discriminatory appearance standards as "bona fide occupational qualifications" and that characteristics such as hair length, makeup, and facial hair are undeserving of protection because they are not "immutable," These courts have allowed employers to enforce conformity to sex stereotypes by dictating different grooming standards for male and female employees. (7)

For example, in Jespersen v. Harrah's Operating Co., the Ninth Circuit rejected a Title VII claim raised by a female bartender who was fired for failing to conform to her employer's personal appearance standard requiring women to wear makeup. (8) The court distinguished the case from Price Waterhouse by arguing that the stereotyping at issue in Price Waterhouse singled out an individual employee and unfairly expected her to hide traits that, if displayed by men, would have been considered praiseworthy. (9) By contrast, the court found that the personal appearance standards at issue in Jespersen required all employees to wear the same "for the most part unisex" uniforms and there was no evidence that "the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear" or that the grooming standard would interfere with "a woman's ability to do the job." (10) In denying Jespersen's claim, the court expressed concern that to find otherwise would "come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self-image, can create a triable issue of sex discrimination." (11) Although the court left open the possibility that a plaintiff could challenge a grooming requirement under Price Waterhouse "[i]f [the] grooming standard imposed on either sex amount[ed] to impermissible stereotyping," the court argued that "Jespersen's objection to the makeup requirement, without more, c[ould not] give rise to a claim of sex stereotyping under Title VII." (12)

Yet, as critics of Jespersen have pointed out, it is not difficult to identify sex stereotyping in the Harrah's policy. Even the dissenting judges "insinuated ... the majority's rejection of Jespersen's sex stereotyping argument was ... rooted ... in the sexism and classism of a male-dominated court." (13) As Judge Kozinski noted, if male judges unused to wearing makeup were suddenly required to "wear face powder, blush, mascara and lipstick while on the bench," they would likely find it a "highly intrusive," "burdensome and demeaning" requirement that "would interfere with [their] job performance." (14) Because such a reaction would be seen as reasonable from men, it should also be seen as reasonable from women who "choose to present themselves to the world without makeup" and therefore do not "conform to Harrah's [sex-stereotyped] notion of what a 'real woman' looks like." (15)

Despite the limitations that Jespersen and other cases have placed on the anti-sex-stereotyping norm announced in Price Waterhouse, (16) this norm still has had a far greater impact in the realm of employment than in the realm of the home. Both before and after the Price Waterhouse decision, numerous courts, political figures, and-other commentators have condoned and encouraged conformity to sex stereotypes in the family sphere. In particular, these commentators have perpetuated sex stereotypes that dictate differentiated parenting roles for women and men. The perpetuation of these sex stereotypes often takes the form of a crusade (17) in support of the proposition that "children need a father." Father-promotion crusaders justify this proposition by alleging that sons and daughters have needs that are uniquely met by having a father and that there are significant harms that result from father absence. Deconstructing this proposition by critically examining the ways in which the term "father" is being defined and the reasons given for why children need fathers exposes the sex stereotypes that underlie it. Indeed, an analysis of the language used by these courts, politicians, and commentators reveals that they are defining "father" and the needs a father fulfills in various ways that ultimately rest on sex-stereotyped assumptions about how men do and ought to behave as parents and the alleged benefits that accrue to children when men fulfill certain sex-stereotyped parenting roles.

In an effort to disrupt sex stereotyping in the realm of parenting, (18) it may be useful to examine recent research on gay fathers that provides examples of men who do not conform to sex-stereotyped definitions of "father" and therefore challenge the assumptions on which the aforementioned courts and commentators base their argument that children need a father. Sociological and psychological studies finding that gay men tend to parent in ways that more closely resemble traditional mothering run the risk of reifying maternal stereotypes. However, they also have the potential to underscore the male sex stereotypes embedded in commentary describing how children's needs are uniquely met by fathers because fathers are male, masculine, complementary to, supplemental to, and/or different from female parents, and fulfill particular gender roles traditionally attributed to fathers. Moreover, these studies provide some...