Kimberly A. Yuracko - Gender Nonconformity and the Law

For Michael, Sacha, and Katja

Copyright 2016 by Yale University.

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Contents

Acknowledgments

This book has been a long time in the making. It is the product of my thinking and writing about sex discrimination in employment over the past decade. It has been a very interesting journey, as so much has changed in the law over that time. Indeed, the case law and the social opinions it reflects have in many regards changed much faster than I ever predicted. Given the length of my journey toward completion of this book, I have many people to thank. Mark Kelman has been a teacher, mentor, and friend to me for over twenty years now. He is the best reader I have ever encountered. I am deeply indebted to him not only for improving this work but for actually sparking my interest so many years ago in studying discrimination and pursuing an academic path, a path that has been richly engaging and rewarding for me ever since. I also owe a great debt to the late Susan Moller Okin, who, like Mark Kelman, played a formative role in my intellectual development and my career path.

I have benefited from comments and suggestions on many parts of this manuscript from Ron Allen, Michael Barsa, Cynthia Bowman, David Dana, Shari Diamond, and Andrew Koppelman. I am grateful for the time they have invested in this work and for their encouragement. I would also like to thank Melissa Goldman for her outstanding and careful research support, as well as my library liaisons Marcia Lehr and Jesse Bowman. Finally, I am grateful for the institutional support I have received while writing this book from Dean Dan Rodriguez and the Northwestern Summer Research Fund, as well as for the generous support I have received from the Judd and Mary Morris Leighton endowed chair.

My greatest debt of gratitude goes to my husband, Michael Barsa, and our children, Sacha and Katja. Their creativity, playfulness, and joy are like sparks of magic that fill my days with fun and laughter. It is for them that I am most extraordinarily grateful.

Introduction

The Aggressive Woman: Ann is a senior manager at a large accounting firm. Ann works hard. She is successful at winning new contracts for the firm and at advising clients. Yet when she is considered for promotion, she is denied admittance to the partnership. Some partners find her too aggressive and unladylike. To improve her chance of promotion the following year, she is advised to dress more femininely, wear makeup and jewelry, and have her hair styled. Ann sues for sex discrimination. She wins.

The Effeminate Man: Antonio works as a food server at a restaurant chain. For several years, he is subjected to a steady stream of insults and name-calling from some of his male coworkers. They refer to him using female pronouns and mock him for carrying his tray like a woman. Antonio complains about the harassment to no avail. He sues for sex discrimination. He wins.

The Transsexual: Philecia is a transsexual police officer who has been diagnosed with gender identity disorder. As part of her transition from male to female, Philecia begins living off duty as a woman. While still presenting as male at work, Philecia does display some feminine characteristics on the job.

The Garden-Variety Gender Bender: Darlene works as a bartender at a casino. In order to protect its image, the casino has rigid and detailed grooming codes for female and male employees. The code for female employees requires them to wear makeup, have their hair styled, and wear nail polish. The code for male employees prohibits them from wearing makeup. Darlene objects to the requirement that she wear makeup. She does not object to any other gendered aspect of the grooming code and she does not have gender identity disorder. She refuses to wear makeup and is fired. Darlene sues for sex discrimination. She loses.

Why do courts increasingly protect workers from discrimination based on their gender presentation in addition to their biological sex? Why do some employees receive more protection from gender stereotypes than others? In particular, why are transsexuals winning their challenges to sex-based gender conformity demands while garden-variety gender benders are not? This book looks for answers to these questions by examining the rich body of recent case law in which gender-nonconforming workers seek protection for their atypical expressions of masculinity or femininity.

This body of case law is particularly important because it is the area of sex discrimination law that has evolved most quickly and changed most dramatically in the past twenty-five years. Moreover, the changes, at least at the federal level, have been entirely the result of judge-made law rather than statutory change. Judges have been interpreting the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964 in ways unforeseen at the time of the acts passage. Perhaps because of the rapidity of change, and perhaps because of the conceptual difficulties these cases raise, the decisions themselves are dramatically undertheorized and poorly explained. There has not yet been an effort by courts or scholars to provide an overarching analytical framework to help understand and bring coherence to this body of case law. This book attempts to build such a framework by identifying the values, principles, and priorities that have been driving, often without explicit articulation, this fast-moving area of the law.

This body of case law is also important, however, because of the light it sheds on the social purposes and goals of sex discrimination law more generally. This is the area of sex discrimination law in which courts struggle most overtly with changing social norms. Indeed, it is the only area of sex discrimination law in which courts sometimes permit employers to treat women and men in the same position differently. The cases raise starkly, as a result, a core question of sex discrimination jurisprudencethe extent to which antidiscrimination law requires only access and the extent to which it requires more sweeping challenges to social gender norms, mores, preferences, and expectations. Dress, appearance, and grooming cases challenge the last realm in which employers are permitted to treat women and men in the same position differently. Courts struggle overtly in these cases to respond to and act upon social gender norms in the name of furthering the laws antidiscrimination mission. As a result, gender nonconformity cases provide particularly rich and fertile insight into the scope of sex discrimination laws protection and the reasons for its sometimes seemingly haphazard expansion.

When the Civil Rights Act was passed in 1964, its target was clear. It aimed to eliminate the categorical workplace exclusion of women and minorities. At the time, African Americans were routinely excluded from jobs and even from whole industries.