The formal equality theory in practice: the inability of current antidiscrimination law to protect conventional and unconventional persons.

• Author: Mange, Monica Diggs

The purpose of this Article is to expose the way in which Title VII and equal protection law fail to protect adequately all persons in instances where social judgment of what it means to be a man or a woman ("gender") rather than biology ("sex") is at issue. This Article posits that, in a world where men and women are increasingly permitted to have both "feminine" or "masculine" preferences, the current antidiscrimination model does not adequately ensure equality for all persons. Instead, the law in this context inevitably champions the preferences or characteristics of particular categories of persons to the possible detriment of others, depending on whether a court finds that there is a similarity or difference between the sexes. In both scenarios, the law oftentimes arbitrarily deprives entire groups of persons of legal protection.

In light of this criticism, this Article has two goals. The first is to develop and illustrate how the current equality model results in a predictable framework applicable in both Title VII and Equal Protection Clause cases. This framework permits one to anticipate which categories of persons will be benefited and/or potentially harmed when men and women are proclaimed to be either the same or different from each other. The objective in developing this framework is to help practitioners and courts better understand the repercussions of these findings for persons of both sexes. This, in turn, should enable practitioners to better advocate for their clients and encourage courts to consider and discuss, more transparently, the repercussions of sex discrimination decisions for members of both sexes. The second goal of this Article is to suggest an alternative way of thinking about equality that better ensures the protection of persons of both sexes, regardless of individual gender preferences or characteristics.

In consideration of these goals, this Article is divided into two parts. Part 1 discusses the formal equality principle, which constitutes the theory of equality currently underlying both Title VII and equal protection law. Part I's analysis demonstrates why formal equality's requirement that the sexes be compared in order to determine whether discrimination has occurred works well in the context of biology, where the sexes are uniformly either like or unlike each other, but less well in the context of gender. It also illustrates how the formal equality theory results in a distinctive framework that consistently champions the gender preferences or characteristics of one category of persons to the potential detriment of others, depending on whether a court chooses to affirm or deny a similarity between the sexes. Part I then applies this framework to actual case law in order to demonstrate its accuracy in predicting which categories of persons are benefited or harmed when a court affirms that men and women are like or unlike each other.

Part II of this Article proposes an alternative theory of equality that is better able to protect persons of both sexes, regardless of their gender preferences or characteristics. This alternative theory of equality is prefaced on the assumption that true sex equality cannot mean that some categories of persons are treated better than others based solely on a court's arbitrary determination that men and women are like or unlike each other in a particular context. As a result, this theory requires a court to undertake a two step analysis, determining first whether persons of both sexes with identical preferences or characteristics are being treated equally, and second whether persons with corresponding gender preferences or characteristics can also gain access to the opportunity at stake. Part II then applies this new theory of equality to two case law examples in order to demonstrate how this alternative theory might work in practice.

1. THE FORMAL EQUALITY FRAMEWORK

   1. The Difference Between Sex and Gender

      Before explaining why current antidiscrimination law is unable to accommodate the preferences and characteristics of all persons, it is important to understand the distinction between "sex" and "gender." While "gender" and "sex" have sometimes been used synonymously in sex discrimination law, (1) numerous scholars have recognized that these terms mean two very different things. "Sex" refers to the "anatomical and physiological distinctions between men and women." (2) By contrast, the term "gender" is defined as "a social judgment of what it means to be a man or a woman, in other words, femininity or masculinity." (3) What society deems culturally "feminine" and culturally "masculine" (4) is therefore premised on a "stereotype," a social determination regarding which gender preferences or characteristics are conventionally associated with biological males and females. These culturally assigned characteristics and preferences encompass everything from "physical appearance to clothing and self-presentation, to personality and attitude, ... to patterns of speech and behavior." (5) Indeed, Case notes that:

      Gender in our culture is marked by differences in voice (femininity is associated with high-pitched voices, at best softspoken, at worst shrill; masculine voices are louder and deeper); gesture (femininity is associated with grace, gentleness, tentativeness, and deference; masculinity is physically more bold, aggressive, and decisive; it takes up more space in a room); clothing and personal appearance (femininity is associated with pastel or bright colors, above all with shades of pink, with frills, ruffles, and soft fabrics, with skirts and dresses. Masculinity is more drab and practical: its paradigm may still be the gray flannel suit; it generally is free of ornaments such as jewelry, makeup, and long or elaborate hairstyles). (6) Gender assignments encompass "[n]ot only jobs in the workplace, but tasks in the home (breadwinner vs. caregiver, mowing the lawn vs. ironing, work with hammer and nails vs. needle and thread), hobbies (hunting vs. knitting), and children's toys (guns vs. dolls ...)." (7) Even certain personality traits have been conventionally coded as masculine. (8)

      While these gender stereotypes may have been accurate in the United States sixty years ago, when American culture afforded men and women a much narrower spectrum of choice, the current multiplication of career, reproductive, and family structure options has led to increased intragroup differentiation of preference among both sexes. (9) Women with culturally-masculine preferences or characteristics and men with culturally-feminine preferences or characteristics no longer comprise a negligible group of persons that can be ignored. (10) Moreover, the fact that today a person need not be uniformly culturally-feminine or culturally-masculine in all preferences and characteristics (e.g., a woman can choose to become a mother, which is considered culturally-feminine, while simultaneously choosing to work an eighty-hour work week, which is considered culturally-masculine), complicates this landscape even further.

      In order to capture the difference between biological sex and gender, this Article will use the terms "feminine" or "culturally-feminine" and "masculine" or "culturally-masculine" to describe the preferences and characteristics society has traditionally associated with biological men and women, but that are capable of manifesting themselves in either sex. It will also use the terms "conventional" and "unconventional" to denote the association between certain gender preferences and characteristics and the biological sex of those who possess them. Thus, when members of a particular biological sex exhibit gender preferences or characteristics that society typically associates with that sex, they will be labeled "conventional." Conversely, when they exhibit gender preferences or characteristics that society generally attributes to the opposite sex, they will be labeled "unconventional." Under this definition, preferences and characteristics that are considered "conventional" in one sex will necessarily be considered "unconventional" in the other sex and vice-versa. Note that the purpose in characterizing persons this way is not to suggest that individuals are uniformly culturally-feminine or uniformly culturally-masculine in all of their preferences or characteristics, nor to imply that gender stereotypes are static. In using these terms, this Article's goal is merely to create manageable conceptual boxes for the purpose of moving the discussion forward. At no point should these conceptual boxes, nor the definitions injected into them, be construed as a broader statement regarding the veracity or rigidity of these gender labels. (11)

   2. The Formal Equality Theory

      In order to comprehend why Title VII and the Equal Protection Clause are problematic when gender is at issue, it is first important to understand the underlying principle of equality upon which these laws are based. (12) This guiding principle, generally known as the formal equality principle, is premised on an inevitable comparison between two things. It mandates that two "like" things be treated the same, while permitting two "unlike" things to be treated differently. The model is binary in the sense that the item being compared can only be "like" or "unlike" the source of comparison. There is no third option.

      Adopted initially in the context of Fourteenth Amendment race discrimination claims, the formal equality principle carries slightly different assumptions in the context of sex-based discrimination. While contemporary notions of race typically assume that persons of different races are "like" each other in most instances, thereby warranting equal treatment, (13) formal equality in the sex context assumes that men and women are more consistently "unlike" each other, thereby more often warranting differential treatment. Sex discrimination determinations are therefore less predictable than race...