|
|
Copyright © 2005 by the President and Fellows of Harvard College
Thomas Ling
Sometimes characterized as a legislative accident,[1] the law of sex equality can be viewed as one of denial-refusal to believe that Congress could intend equal treatment on the basis of sexual attributes. In this vein, courts have employed Title VII of the 1964 Civil Rights Act[2] as an instrument to construct male and female sexual identities. Using the doctrine of protected classes, they affirm and strengthen traditional sex and gender roles that fail to account for the wide spectrum of sexual difference.[3] In order to distinguish the sexes, the law references a man's genitalia and then demands that he walk, talk, and act in a manner that courts define as masculine. It also forms a sphere of femininity within which women are required to perform roles that extract higher costs in terms of time, opportunity, and autonomy but that are consistently devalued by society.
The lower courts enabled this regressive jurisprudence over twenty years ago when they mistakenly defined sex roles as biologically determined.[4] They removed gender, the social construction of sex,[5] from legal definitions of sex discrimination. This left legal protections only for those men and women that fit into the courts' rigid vision of sex and sexuality.[6] The doctrine, however, is evolving.
Recently, the Sixth Circuit, in Smith v. City of Salem,[7] held that Title VII prohibits discrimination on the basis of gender performance regardless
*** Top of Page 278 ***
of transsexual[8] status, and that the Equal Protection Clause[9] provides similar protections in public employment.[10] By recognizing gender stereotypes as inherent to sex discrimination, Smith promises expanded respect for the liberty of individuals to define the meanings of their own sex, gender, and sexuality.
Jimmie L. Smith is a firefighter who was harassed and mistreated because he expressed himself[11] in a feminine manner, behavior that caused Smith's coworkers to object that he was not acting masculine enough.[12] To answer these complaints, Smith explained his diagnosis with Gender Identity Disorder (GID).[13] Classified as a disjunction between an individual's sexual organs and sexual identity,[14] GID diagnosis correlates with transsexual identity.[15] Smith's supervisors reacted to his changed behavior and GID diagnosis by harassing Smith with psychological evaluations and a suspension designed to generate Smith's termination.[16]
Smith appealed his suspension to the Columbiana County Court of Common Pleas, which found the suspension to be without grounds.[17] Subsequently, Smith filed a complaint in federal district court asserting claims including sex discrimination under Title VII and constitutional claims pursuant to 42 U.S.C. § 1983.[18] But the district court dismissed Smith's com-
*** Top of Page 279 ***
plaint on the pleadings.[19] The court's reasoning suggested that men who are mistreated because they wear dresses are harassed because they are transsexuals, not because they are men. It explained that Smith's treatment arose from his GID and transsexual status and that Smith, therefore, could not claim sex discrimination under Title VII or the U.S. Constitution.[20]
The Sixth Circuit reversed.[21] Writing for the panel, Judge R. Guy Cole held that Title VII claims for sex discrimination properly encompassed transsexuals suffering adverse employment action due to their non-conforming gender behavior.[22] Further, the court found that the Equal Protection Clause provides a similar right to be free from discrimination on the basis of sex in public employment.[23] The Smith court abandoned the rigid boundaries of sex identity laid out by other circuits, which afforded Title VII protections only to masculine men and effeminate women.[24] It recognized that disparate requirements of masculinity and femininity for men and women must be understood as unequal treatment on the basis of sex.[25] Thus, sex discrimination in Title VII includes discrimination on the basis of gender.[26]
Judge Cole explained that the Supreme Court's judgment in Price Waterhouse v. Hopkins[27] eviscerated lower court opinions that refused to protect transsexuals or other gender non-conforming individuals under Title VII.[28] He described Price Waterhouse as prohibiting the defendant employer from discriminating against a female employee for not conforming to traditional female gender roles, such as applying makeup and wearing jewelry.[29] Because Title VII applies equally to men and women, the Smith court interpreted the logic of Price Waterhouse to mean that men can no more be fired for wearing a dress than can women for not wearing one.[30] Accordingly, the court reasoned, requirements that men and women adhere to different gender characteristics would subject them to gender stereotyping because of their sex.[31]
*** Top of Page 280 ***
The court concluded that the source of contra-gender behavior was entirely irrelevant to a Title VII inquiry.[32] It rejected the use of labels such as transsexual, homosexual, or transvestite to deny protections to transgender individuals under Title VII or the Equal Protection Clause. Thus, Smith's transsexual identity did not affect his well-pleaded claims of sex-stereo-typing and gender discrimination.[33]
Smith correctly disaggregates concepts of sex from gender so as to bring equal opportunity and autonomy for individuals in the workplace. It recognizes that sex discrimination generally does not focus on biological parts, but rather on socially constructed gender attributes. By recognizing biological sex as separate from gender performance, the court truthfully confronts the essence of sex discrimination-gender stereotyping. Correctly applying the logic of Price Waterhouse, Smith breaks down the biological definitions,[34] Community Norms doctrine,[35] and labeling loopholes[36] that have rationalized an unprincipled application of sex anti-discrimination law. This reading of Title VII and related doctrines promises to increase respect and protections for transsexuals, women and sexual minorities generally.
Past Title VII jurisprudence has largely relied on restrictive definitions of sex to conceal the judicial imposition of traditional sex stereotypes. Some lower courts assert that disparate treatment of men and women can be understood entirely by the differences between their genitalia. The Ninth Circuit's 1977 decision in Holloway v. Arthur Anderson & Co.,[37] formulated the definition of "sex" in Title VII as only "the traditional definition based on anatomical differences."[38] "Sex," in this view, is determined by medical evaluation of genitalia rather than by gender characteristics or performance.[39]
But biology provides little insight into the boundaries of sex discrimination. Plaintiffs can only rarely claim discrimination on the basis of actual body parts; cases involving a woman's uterus seem to be the only examples.[40] Stereotypes at the heart of sex discrimination, which the courts
*** Top of Page 281 ***
have long forbidden,[41] cannot be explained by descriptions of a plaintiff's genitalia alone.[42] By suggesting that Title VII protections only prohibit discrimination on the basis of biological sex, courts seem to ignore Congress's intent to prohibit "the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."[43] The biological definition of sex in Title VII, therefore, does not explain the operation or function of anti-discrimination law.
Courts do not limit Title VII claims to discrimination on the basis of sexual organs. Rather, they provide legal protections to individuals that conform to judicial definitions of acceptable gender roles-masculine men and feminine women.[44] Through a Community Norms doctrine, the courts rationalize this differential treatment across the sexes as enforcement of reasonable community values as opposed to the imposition of impermissible sex stereotypes.[45]
This distinction allows judges to assert their own preference for proper gender performance, denying anti-discrimination protections to those that fall outside the gender norms established by the courts. This attitude is used to justify sex specific grooming regulations that produce oppressive sex/gender identities.[46] Under the Community Norms doctrine, courts permit both sexual exploitation, such as the requirement of sexy dress,[47] and the suppression of sexual autonomy through the sanctioning of gender "appropriate" attire.[48] They allow the imposition of differential appearance standards[49] that require women to attain a higher level of femininity and
*** Top of Page 282 ***
attractiveness.[50] These higher costs on females are paired with lower levels of compensation and prestige for positions considered feminine. Thus, the Community Norms doctrine maintains sex stereotypes that construct, exploit, and devalue feminine attributes.[51] These judicially constructed genders operate to define the otherwise unintelligible biological definition of sex used in Title VII.
Courts label individuals outside the constructed male/female classes as deviants beyond the protections of sex anti-discrimination law. They label them transsexuals, homosexuals, or transvestites[52]-groups against which discrimination is not only permitted but, in other contexts, required by law.[53] While courts often describe contra gender performers as men or women, they refuse to recognize that individuals might break from the traditional sex/gender roles. Gender behavior outside the traditional masculine male/ feminine female model is labeled as an attribute of an unprotected class and, therefore, unrelated to the protected sex categories.
This labeling loophole has provided an ongoing means to deny legal relief to transgender persons.[54] In Ulane v. Eastern Airlines, Inc.,[55] for example, the Seventh Circuit ruled that transgender individuals could find no relief under Title VII because their gender behavior was unrelated to their biological sex.[56] The plaintiff in Ulane was fired for simply dressing and identifying as a female. Since she lacked the genitalia of a woman or the masculinity of a man, she was considered distinct from the protected sex classes. Because the Seventh Circuit refused to consider Ulane a woman and because it determined that men do not wear dresses, the court ruled that the plaintiff was fired because of her transsexual status, not because of her sex.[57] Through labels, the transgender plaintiff qualifies neither as a man nor a woman, and is left outside the protections of anti-discrimination law.
This "biological" approach to sex discrimination cannot be sustained after the Supreme Court's decision in Price Waterhouse v. Hopkins.[58] In
*** Top of Page 283 ***
Price Waterhouse, the Court refined its understanding of sex-stereotyping to include characterizations that penalized individuals because their gender behavior did not correlate with stereotypical expectations.[59] The facts of that case closely match those of Smith. Ann Hopkins, like Jimmie Smith, was penalized for her contra-gender behavior and appearance.[60] She was a female senior manager denied promotion because she demonstrated masculine gender characteristics that the male partners considered inappropriate for her sex.[61] The Price Waterhouse Court found that an employer's demand that Hopkins "walk more femininely, talk more femininely, dress more femininely, wear make up, have her hair styled, and wear jewelry,"[62] constituted gender discrimination and impermissible sex stereotyping.[63] As a result, an opposite conclusion could not be justified for Smith, a man instructed to act more masculine. The logic of Price Waterhouse is abundantly clear: employers cannot require that individuals perform in genders considered appropriate to their sex.[64]
Nonetheless, many lower courts have continued to deny Title VII protections to effeminate men[65] and transsexuals.[66] They refuse to apply the sex-stereotyping doctrine established by the Court, instead relying on pre-Price Waterhouse cases that perpetuate gender inequality.
Smith rejects this misapplication of non-discrimination law. Recognizing the inability of the traditional/biological definitions of "sex" to capture the spectrum of sex-stereotypes, Smith holds "discrimination because of 'sex' includes gender discrimination."[67] Departing from the ad-hoc traditional approach, Smith leaves behind the Community Norms doctrine and labeling loopholes that courts utilized to justify their own gender ideology.
*** Top of Page 284 ***
The Sixth Circuit's recognition of gender in sex and sex discrimination renders the Community Norms doctrine superfluous. The court's consideration of gender fills the gap left by the biological definitions and exposes the disingenuous distinctions between norms and stereotypes. The dead letter of the doctrine also is made clear by the nature of the Smith plaintiff. Both society and the law have consistently considered effeminate men and transsexuals to be an absurd departure from acceptable community norms.[68] By extending protections to these outcasts, the court signals its unwillingness to rely on the facade of community norms. Given the central role that the doctrine played in enabling judicial construction of sex and gender, the Smith court's decision to abandon the Community Norms doctrine suggests that it is prepared to accept an individual's own gender choices over those of judges.
By eschewing discussion of any medical rhetoric, whether biological or psychological, Smith further validates gender expression as a matter of individual autonomy. While some courts have been willing to extend to an individual choice over matters of sex or gender, such freedom often is contingent on approval from medical institutions.[69] In contrast, Smith highlights the irrelevance of medical evaluation. It breaks apart the conflation of sex and gender, allowing individuals to live life unburdened by a doctor's definition of their genitalia. As the court respects an individual's choice to live in a gender that is considered distinct from their sex, a doctor's definition of sex loses some of its legal significance.
The court's amended opinion further highlights that Title VII and equal protection is not dependent on medical classifications. De-emphasizing the role of medical terms, the court shifted its focus from transexualism and GID, evident in its original decision, to a holding dependant solely on an individual's gender expression "irrespective of the cause of that behavior."[70] The court extended protections to Jimmie Smith, not because he was diagnosed with a GID, or because of some configuration of his genitalia, but rather because Title VII and the Equal Protection Clause prohibit
*** Top of Page 285 ***
"sex stereotyping based on a person's gender non-conforming behavior."[71] Determinations about transexualism or GID are no more influential than a doctor's classification of a plaintiff's birth genitalia. Thus, individuals need not identify as a transsexual, be diagnosed with GID, or in any other way conform with medical evaluations of the mind or body in order to control their own gender expression.
Finally, Smith states that, regardless of labels, all individuals are entitled to their own gender identity choices without fear of discrimination. Holding, "[s]ex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior[,]"[72] the court forecloses attempts to recast impermissible stereotyping as alternative forms of discrimination that are somehow more tolerable-in this case, discrimination on the basis of transsexualism.[73] Smith explains that a "label . . . is not fatal to a sex discrimination claim."[74] It explicitly rejects the practice of labeling contra-gender performers as an unprotected class, such as transsexual, homosexual, or transvestite.[75]
More than protecting transsexuals, the Smith court's matured understanding of "sex" promises reform across the broad landscape of sexual inequality.[76] Smith upturns rigid sex categories and allows both sexes to participate in the full range of gender expressions. Scholars have anticipated and argued for this transformative approach as a means to sexual equality. When courts recognize that men can "wear frilly pink dresses"[77] and may "have vaginas,"[78] they break from the traditional devaluation of female attributes. With female and male traits made equally available to the sexes, gendered characteristics can move towards being appreciated as equals.[79] Moreover, the movement away from community norms frees women from the sex stereotypes that have traditionally been imposed against them. The ability to participate in the masculine sphere endows women with increasingly equal opportunity.
The Smith application of the sex stereotyping doctrine has even further implications for sexual minorities. Citing the authority of Judge Pregerson's concurrence in Rene v. MGM Grand Hotel, Inc.,[80] the Smith court recognizes that the disingenuous labeling loophole employed wrongfully against transsexuals is equally inapplicable to other sexual minorities.[81] In
*** Top of Page 286 ***
Rene, the defendants sought to relabel discrimination against a male gay employee as permissible harassment on the basis of sexual orientation.[82] Judge Pregerson rejected this nomenclature and recognized that harassment of gay men arose from sex-stereotypes. Social conflation of sexual orientation and gender led MGM employees to treat Rene "like a woman."[83] Moreover, "the rule that bars discrimination on the basis of sex stereotypes set in Price Waterhouse squarely applied to preclude the harassment at issue [here]."[84] The Smith court's rejection of the labeling loophole[85] follows Judge Pregerson's logic, hence Judge Cole's admonishment that "[s]ex stereotyping based on a person's gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior . . . ."[86] Judge Cole notes that labels such as "homosexual" cannot frustrate sex discrimination claims.[87] The court thereby recognizes that discrimination against sexual minorities is rooted in sex and gender stereotypes that are forbidden by anti-discrimination law.
The legal and social conflation of sex, gender, and sexual orientation logically require this extension of sex discrimination law.[88] As sample transsexual litigation illustrates, sexual orientation is most often understood in reference to sex (as anatomy). In transsexual marriage cases, for example, judges have struggled to uphold mainstream sexual orientation by carefully defining transsexual genitalia, suffering rigorous examination and testimony concerning the relative sex organs of the involved parties.[89] Efforts such as these to ensure that certain genitalia match between sexual partners are at the essence of sex discrimination as they engage in an impermissible discussion of "sex" (as anatomy) even as understood under the traditional, biological definition. When courts enforce a heterosexual normativity, they do so by discriminating on the basis of an individual's genitals.[90] Further, social and legal concepts of sexual orientation have always been constructed on theories of gender.[91] Whether sexual minorities have been understood as sissies, inverts, or homosexuals, they have always been interpreted in relation to masculine and feminine at-
*** Top of Page 287 ***
tributes. Effeminacy in men and machismo in women are conceptually intertwined with sexual orientation.[92]
In one excellent example of this conflation, the Fifth Circuit upheld an adverse employment action against a heterosexual, but effeminate male because the employer perceived him to be gay.[93] The court affirmed the district court's conclusion that discrimination on the basis of effeminacy was permissible animus against homosexuality. Its discussion of homosexuality ignored the plaintiff's brief where he "most stringently denied that he [was] a homosexual" and asserted that he was a "happily married man."[94] The social and legal conflation of gender and sexuality requires that prohibitions against gender stereotyping protect sexual minorities from discrimination.
The Smith court's decision to re-evaluate legal understandings of sex tracks closely with an increasing appreciation, in both law and society, for the liberty to "define one's own concept of existence, of meaning of the universe, and of the mystery of human life."[95] Given the improving social attitudes towards issues of sexuality,[96] it is unsurprising that the law, too, has increased its acceptance of alternative sex and gender expressions.[97] Smith follows a wave of changing judicial awareness evident in at least four other circuits;[98] but it does not mark the end of the struggle to define individual sexuality. Only two weeks prior to the Smith opinion, a
*** Top of Page 288 ***
separate panel of the Sixth Circuit largely ignored the lessons of Price Waterhouse and employed the labeling and Community Norms doctrine properly rejected in Smith.[99] Smith is, thus, at the forefront of an ongoing battle between individual liberty and the social impulse toward sexual conformity. But Smith represents more than one side of a cultural divide. It brings coherence to broken doctrines and preserves the law's respect for individual choice in matters of identity and sexual expression.
[1] See Developments in the Law-Employment Discrimination and
Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1167
(1971) (describing how the prohibition against sex discrimination was added as a
floor amendment in the House without any prior hearings or debate and without
even a minimum of congressional investigation).
[2] 42 U.S.C. §§ 2000e-2000h (1988).
[3] See, e.g., Katharine T. Bartlett, Only Girls Wear
Barrettes: Dress and Appearance Standards, Community Norms, and Workplace
Equality, 92 Mich. L. Rev. 2541, 2568 (1994); Katherine M. Franke, The
Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from
Gender, 144 U. Pa. L. Rev. 1, 4-5 (1995); Karl E. Klare, Power/Dressing:
Regulation of Employee Appearance, 26 New Eng. L. Rev. 1395, 1419-21,
1431-32 (1992); Francisco Valdes, Queers, Sissies, Dykes, and Tomboys:
Deconstructing the Conflation of "Sex," "Gender," and "Sexual Orientation" in
Euro-American Law and Society, 83 Cal. L. Rev. 3, 7 (1995).
[4] See, e.g., Holloway v. Arthur Anderson & Co.,
566 F.2d 659 (9th Cir. 1977); Ulane v. Eastern Airlines, Inc., 742 F.2d 1081
(7th Cir. 1984).
[5] For a full discussion of the relationship between sex, as
biological concept, and gender, as a social construction of the sexes, see Mary
Ann C. Case, Disaggregating Gender from Sex and Sexual Orientation: The
Effeminate Man in the Law and Feminist Jurisprudence, 105 Yale L.J. 1, 18-36
(1995); and Valdes, supra note 3.
[6] See Case, supra note 5,
at 4, 17; Franke, supra note 3,
at 5, 75-80.
[7] 378 F.3d 566 (6th Cir. 2004).
[8] "Transsexual" is a term associated with Gender Identity
Disorder (GID), a psychological diagnosis for which patients are instructed to
live in the gender opposite to their sex on a full time basis prior to receiving
sexual reassignment surgery to match their genitalia with the gendered identity.
See Smith, 378 F.3d at 568 (citing American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 576-82 (4th ed. 2000));
see also Taylor Flynn, Transforming the Debate: Why We Need to Include
Transgender Rights in the Struggles for Sex and Sexual Orientation Equality,
101 Colum. L. Rev. 392, 392 n.2 (2001). Transsexuals are, thus, part of a larger
group of transgender individuals-persons who do not conform to stereotypical
concepts of sex and gender. See id. at 392. Other labels that might be
grouped under the transgender umbrella include sexual minorities such as gay,
lesbian, or bisexual, as well as heterosexual effeminate men and macho women.
See id.
[9] U.S. Const. amend. XIV, § 1.
[10] Smith, 378 F.3d at 567, 578. The court also held that
a one-day suspension might qualify as adverse employment action under Title VII
and that violation of state statutory and administrative procedures did not
violate due process under the Fourteenth Amendment. Id. at 576,
578.
[11] The masculine pronouns are used here as they are used in the
plaintiff's complaint and in Judge Cole's opinion. Interestingly, use of the
female pronouns would raise an entirely novel theory of Title VII-sex
stereotyping based on the gender qualities of the job. In other words, could a
female fire fighter be required to act more masculine? For an interesting
discussion of why Title VII does not, but should, extend to cases of gendered
jobs, see Case, supra note 5,
at 80-94.
[12] Smith, 378 F.3d at 568.
[13] Id.
[14] See id. (citing American Psychiatric Association,
supra note 8,
at 576-82 (4th ed. 2000)).
[15] Id. at 567.
[16] Id. at 568-69.
[17] Id. at 569.
[18] Id.
[19] See Smith v. City of Salem, No. 4:02CV1405, slip op.
at 12 (N.D. Ohio 2004).
[20] See id. at 7, 12.
[21] See Smith, 378 F.3d at 567, 578.
[22] See id. at 574-75.
[23] See id. at 576-77.
[24] See, e.g., Ulane v. Eastern Airlines, Inc., 742 F.2d
1081 (7th Cir. 1984) (distinguishing transgender behavior from the protected
aspects of the sex classes in Title VII); Holloway v. Arthur Anderson & Co.,
566 F.2d 659 (9th Cir. 1977) (establishing a "biological" view of sex under
Title VII that explicitly refuses to acknowledge the gender component of sexual
identity and sex harassment).
[25] Smith, 378 F.3d at 574-75.
[26] See id.
[27] 490 U.S. 228 (1989) (holding that not promoting a woman
because she had too many masculine attributes may not be justified when those
attributes in a man would not prevent his promotion. Thus, requirements that she
act more feminine were based on impermissible sex stereotypes in violation of
Title VII).
[28] Smith,378 F.3d at 573.
[29] See id. at 571-72, 574.
[30] See id. at 574.
[31] This does not necessarily suggest that there is no bona fide
occupational qualification ("BFOQ") that would permit such stereotyping. For a
discussion of the BFOQ exception to appearance stereotypes, see Bartlett,
supra note 3,
at 2565-67.
[32] See Smith, 378 F.3d. at 574-75.
[33] See id.
[34] Judicial definitions of "sex" that suggest that sex, gender,
and sexual orientation are aligned by biological characteristics. Thus, men are
individuals with penises that engage in masculine behavior and are attracted to
women.
[35] The Community Norms doctrine identifies the relevant
characteristics of masculinity and femininity that men and women are expected to
follow by looking to the prevalent standards in the local community.
[36] Courts have consistently characterized individuals that do
not conform to the traditional gender models of masculine men and feminine women
as ostensibly unprotected classes. Thus, discrimination on the basis of
contra-gender attributes is labeled as a permissible form of discrimination
unrelated to sex discrimination under Title VII.
[37] 566 F.2d 659 (9th Cir. 1977).
[38] Id. at 662.
[39] See, e.g., Ulane v. Eastern Airlines, Inc., 742 F.2d
1081, 1083 n.6 (7th Cir. 1984).
[40] See, e.g., UAW v. Johnson Controls, Inc., 499 U.S. 187
(1991) (considering whether women of childbearing age could be employed under
differential terms due to their exposure to toxic substances). For discussion,
see Franke, supra note 3,
at 36 & n.143.
[41] See, e.g., Frontiero v. Richardson, 411 U.S.
677, 685 (1973).
[42] See Valdes, supra note 3,
at 306-08.
[43] Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989)
(plurality opinion) (quoting Los Angeles Dep't of Water & Power v. Manhart,
435 U.S. 702, 707 n.13 (1978) (quoting Sprogis v. United Air Lines, Inc., 444
F.2d 1194, 1198 (7th Cir. 1971))).
[44] See generally Robert Post, Prejudicial Appearances:
The Logic of American Antidiscrimination Law, 88 Cal. L. Rev. 1
(2000) (discussing a sociological perspective for antidiscrimination laws);
Franke, supra note 3,
at 5-6; Valdes, supra note 3,
at 23-25.
[45] See Carrol v. Talman Fed. Sav. & Loan Ass'n, 604
F.2d 1028, 1032 (7th Cir. 1979) (permitting gender specific regulations that
meet "commonly accepted social norms"), cert. denied, 445 U.S. 929
(1980); Willingam v. Macon Tel. Publ'g Co., 507 F. 2d 1084, 1092 (5th Cir. 1975)
(permitting gender specific regulations that meet "generally accepted community
standards of dress and appearance").
[46] See Franke, supra note 3,
at 5, 75-80; Klare, supra note 3,
at 1420-21.
[47] While the impermissibility of dress codes that are likely to
expose women to unwelcome verbal or physical harassment is well established,
see, e.g., EEOC v. Sage Realty Corp., 507 F. Supp. 599, 607-11 (S.D.N.Y.
1981), gender specific codes requiring women to exhibit feminine sex appeal even
when no such code is applied to men have been debated, see Klare,
supra note 3,
at 1421. These beauty requirements have been justified when both sexes are
subject to some kind of grooming code. See, e.g.,
Carrol, 604 F.2d at 1032.
[48] See Klare, supra note 3,
at 1417-18, 1433.
[49] See, e.g., Jarrell v. Eastern Air Lines, Inc.,
430 F. Supp. 884, 892 (E.D. Va. 1977) (upholding differential weight standards
for male and female employees), aff'd, 577 F.2d 869 (4th Cir. 1978);
Craft v. Metromedia, Inc., 572 F. Supp. 868 (W.D. Mo. 1983) (upholding demotion
because female news anchor was not attractive to audiences), modified,
766 F.2d 1205 (8th Cir. 1985), cert. denied, 475 U.S. 1058 (1986). The
supposedly "objective" evidence of customer surveys is nothing more than
"community norms" that demand heightened standards of attractiveness. See
Bartlett, supra note 3,
at 2564.
[50] See Bartlett, supra note 3,
at 2563-65.
[51] See Case, supra note 5,
at 3; Franke, supra note 3,
at 36-40; Klare, supra note 3,
at 1431-32; Valdes, supra note 3,
at 24-25.
[52] See Smith, 378 F.3d 566, 574 (6th Cir. 2004); see
also Valdes, supra note 3,
at 146-47, 150-54, 159.
[53] See, e.g., Lofton v. Sec'y of the Dep't of
Children & Family Servs., 358 F.3d 804 (11th Cir. 2004) (upholding Florida
law forbidding "homosexuals" from adopting), reh'g denied, 377 F.3d 1275
(11th Cir. 2004); Corbett v. Corbett, [1970] 2 W.L.R. 1306 (Eng.) (ruling that a
transsexual could not marry an individual of the opposite gender); Vern L.
Bullough & Bonnie Bullough, Cross Dressing, Sex, and Gender 23-93 (1993)
(discussing contemporary sumptuary laws that punish contra-gender dress or
behavior).
[54] See Valdes, supra note 3,
at 25-26.
[55] 742 F.2d 1081 (7th Cir. 1984).
[56] Id. at 1087.
[57] See id.
[58] See Schwenk v. Hartford, 204 F.3d 1187, 1200-02 (9th
Cir. 2000) (opining that the logic of Price Waterhouse overruled opinions
basing Title VII on a biological view of sex and holding that "sex" includes
notions of "gender" under a state law); Rosa v. Park W. Bank & Trust Co.,
214 F.3d 213, 215-16 (1st Cir. 2000) (suggesting Title VII prohibits gender
stereotypes and holding rejection of a male customer in a dress could constitute
a discriminatory act under the Equal Credit Opportunity Act).
[59] See Case, supra note 5,
at 37, 41-43.
[60] See Price Waterhouse v. Hopkins, 490 U.S. 228,
250-51 (1989) (plurality opinion); id. at 258-61 (White, J., concurring);
id. at 272-73 (O'Connor, J., concurring) (accepting plurality's sex
stereotyping analysis and characterizing the "failure to conform to [gender]
stereotypes" as a discriminatory criterion).
[61] Id. at 235.
[62] Id. at 235 (plurality opinion) (internal citations
omitted).
[63] See id. at 258; supra note 60.
[64] See supra note 58;
Case, supra note 5,
at 48-49, 78-79.
[65] See, e.g., Rathert v. Village of
Peotone, 903 F.2d 510, 516 (7th Cir. 1990) (rejecting a section 1983 challenge
by male police officers disciplined for wearing ear studs while off duty);
Bedker v. Domino's Pizza, 491 N.W.2d 275, 277 (Mich. Ct. App. 1992) (upholding
disparate hair-length standards); Lockhart v. Louisiana-Pacific Corp., 795 P.2d
602, 602 (Or. Ct. App. 1990) (upholding employer's rule allowing females, but
not males, to wear "facial jewelry while on the job").
[66] See, e.g., Dobre v. Nat'l R.R. Passenger Corp.,
850 F. Supp. 284, 286 (E.D. Pa. 1993); Star v. Gramley, 815 F. Supp. 276 (C.D.
Ill. 1993); Doe v. Boeing Co., 846 P.2d 531, 533-34, 538 (Wash. 1993).
[67] Smith, 378 F.3d 566, 572 (6th Cir. 2004).
[68] See Case, supra note 5,
at 3, 79-80; Klare, supra note 3,
at 1400-01, 1420; see also Willingam v. Macon Telegraph Publ'g Co., 352
F. Supp. 1018, 1020-21 (M.D. Ga. 1972) (refusing to extend the logic of Price
Waterhouse to men in dresses because "it would be patently ridiculous to
presume that Congress ever intended such result").
[69] See, e.g., Johnson v. Fresh Mark, Inc., No.
4:02CV1576, 2003 U.S. Dist. LEXIS 25883, at *9 (N.D. Ohio Jan. 30, 2003)
(discussing the legal recognition of sex changes dependent on "complete
sex-reassignment surgery" and deriding the plaintiff's "decidedly non-clinical
explanation" of her inter-sexed status). For a criticism of the role of medical
rhetoric in transsexual litigation, see generally Dwight B. Billings &
Thomas Urban, The Socio-Medical Construction of Transsexualism: An
Interpretation and Critique, 29 Soc. Probs. 266 (1982).
[70] Smith, 378 F.3d 566, 575 (6th Cir. 2004);
compare Smith v. City of Salem, 369 F.3d 912, 23, 24-26 (6th Cir. 2004),
amended by 378 F.3d 566, with Smith 378 F.3d 566, 574-75 (6th Cir.
2004) (deleting sections of prior opinion in Smith discussing Title VII
in reference to self-identification as a transsexual).
[71] Smith, 378 F.3d at 577.
[72] Id. at 575.
[73] See Valdes, supra note 3,
at 25-26.
[74] Smith, 378 F.3d at 575.
[75] See id.
[76] See Taylor Flynn, Transforming the Debate: Why We
Need to Include Transgender Rights in the Struggle for Sex and Sexual
Orientation Equality, 101 Colum. L. Rev. 392, 395 (2003) (discussing the
transformative potential of transgender-focused litigation).
[77] Case, supra note 5,
at 7.
[78] Flynn, supra note 76,
at 399.
[79] See Case, supra note 5,
at 4, 68-69; Flynn, supra note 76,
at 399.
[80] 305 F.3d 1061, 1068 (9th Cir. 2002) (en banc) (Pregerson, J.,
concurring).
[81] See Smith, 378 F.3d at 573.
[82] See Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1064
(9th Cir. 2002) (en banc) (Pregerson, J., concurring).
[83] Id. at 1068-69.
[84] Id. at 1069 (quotations and citations omitted).
[85] See Valdes, supra note 3,
at 26.
[86] Smith, 378 F.3d at 575.
[87] Id. at 574.
[88] See Valdes, supra note 3,
at 16-20, 26.
[89] See, e.g., Corbett v. Corbett, [1970] P. 83,
97, 104 (Eng.) (weighing evidence from psychiatrists, gynecologists,
endocrinologists, other physicians, and state-appointed sexual organ inspectors
to determine that a woman with female genitalia and hormones was in fact a man
because she had undergone surgery to alter her genitals).
[90] See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941,
969 (Mass. 2003) (Greaney, J., concurring); Baehr v. Lewin, 852 P.2d 44, 60
(Haw. 1993) (plurality opinion) (Hawaii marriage statutes created sex-based
classification); Baker v. State, 744 A.2d 864, 905 (Vt. 1999) (Johnson, J.,
concurring in part and dissenting in part); Valdes, supra note 3,
at 26.
[91] See Valdes, supra note 3,
at 25-26.
[92] For a discussion of these terms in historical, social, and
legal contexts, see id. at 36-84.
[93] See Smith v. Liberty Mut. Ins. Co., 569 F.2d 325-27
& n.1 (5th Cir. 1978). For a discussion, see Valdes, supra note 3,
at 138-47.
[94] See Brief for the Appellant, Bennie E. Smith at 30
n.7.
[95] Lawrence v. Texas, 539 U.S. 558, 588 (2003) (quoting Planned
Parenthood v. Casey, 505 U.S. 833, 851 (1992)).
[96] See Laurence H. Tribe, Lawrence v. Texas: The
"Fundamental Right" That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893,
1901 & n.28 (2004) (discussing the improved attitudes toward sexual
minorities evident in social institutions such as television shows).
[97] See Valdes, supra note 3,
at 28 (discussing the mutually reinforcing conditions of law and society).
[98] See, e.g., Bibby v. Philadelphia Coca Cola Bottling
Co., 260 F.3d 257, 262-63 (3d Cir. 2001) (stating that a plaintiff may be able
to prove a claim of sex discrimination by showing that the "harasser's conduct
was motivated by a belief that the victim did not conform to the stereotypes of
his or her gender"); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213 (1st
Cir. 2000) (applying Price Waterhouse and Title VII jurisprudence to an
Equal Credit Opportunity Act claim and reinstating claim on behalf of
biologically male plaintiff who alleged that he was denied an opportunity to
apply for a loan because he was dressed in "traditionally feminine attire");
Schwenk v. Hartford, 204 F.3d 1187, 1201 (9th Cir. 2000) (stating that Title VII
encompasses instances in which "the perpetrator's actions stem from the fact
that he believed that the victim was a man who 'failed to act like' one" and
that "sex" under Title VII encompasses both the anatomical differences between
men and women and gender); Doe v. Belleville, 119 F.3d 563, 580-81 (7th Cir.
1997) (holding that "Title VII does not permit an employee to be treated
adversely because his or her appearance or conduct does not conform to
stereotypical gender roles" and explaining that "a man who is harassed because
his voice is soft, his physique is slight, his hair long, or because in some
other respect he exhibits his masculinity in a way that does not meet his
coworkers' idea of how men are to appear and behave, is harassed 'because of his
sex'"), vacated and remanded on other grounds, 523 U.S. 1001
(1998).
[99] The Sixth Circuit's opinion in Johnson v. Fresh Mark,
Inc., 98 Fed. Appx. 461, 462 (6th Cir. 2004), held that rules requiring a
transgender person to use the men's bathroom did not constitute
sex-discrimination (it was only a requirement to "conform to the accepted
principles established for gender-distinct public restrooms," Johnson v. Fresh
Mark, Inc., No. 4:02CV1576, 2003 U.S. Dist. LEXIS 25883, at *8 (N.D. Ohio Jan.
20, 2003)). Furthermore, transsexuals remain an unprotected class under Title
VII. See Johnson, 98 Fed. Appx. at 461. Thus, the Johnson
plaintiff was twice doomed-the court refused to recognize the gendered
nature of bathroom use (employing the Community Norms principles) but felt it
necessary to state that the transsexual plaintiff could, nonetheless, find no
relief under Title VII (using the labeling loophole).
Copyright © 2005 by the President and Fellows of Harvard
College
Harvard Civil Rights-Civil Liberties Law Review (CR-CL) / Vol. 40,
No. 1, Winter 2005
hlscrc@law.harvard.edu
Last modified: October 20, 2005.