Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence

Article excerpt

Contents

I. INTRODUCTION 2 II. ON TERMINOLOGY: GENDER IS FOR ADJECTIVES,

SEX IS FOR NOUNS 9 III. HISTORY AND THEORY OF GENDER BENDING:

HEREIN OF HIC MULIER AND HAEC VIR 18 IV. THE CASE LAW OF GENDER BENDING 36

A. Herein of Ann Hopkins and Bennie Smith 36

1. Hopkins and Sex Stereotyping 36

2. Smith, Strailey, and Effeminacy 46

B. Applying Hopkins 57

1. Sexual Orientation and Hostile Environments 57

2. Men in Dresses (or "Rebel-Rousing, Skirt-Wearing

Persons") 61

3. Feminine Women 69 V. INCORPORATING THE CONCEPT OF GENDER DISCRIMINATION INTO

LEGAL DOCTRINE 75 VI. BEYOND TITLE VII (AND BEYOND SAMENESS

AND DIFFERENCE?) 94

I. INTRODUCTION

The word "gender" has come to be used synonymously with the word "sex" in the law of discrimination. In women's studies and related disciplines, however, the two terms have long had distinct meanings, with gender being to sex what masculine and feminine are to male and female. Were that distinct meaning of gender to be recaptured in the law, great gains both in analytic clarity and in human liberty and equality might well result. For, as things now stand, the concept of gender has been imperfectly disaggregated in the law from sex on the one hand and sexual orientation on the other. Sex and orientation exert the following differential pull on gender in current life and law: When individuals diverge from the gender expectations for their sex--when a woman displays masculine characteristics or a man feminine ones--discrimination against her is now treated as sex discrimination while his behavior is generally viewed as a marker for homosexual orientation and may not receive protection from discrimination. This is most apparent from a comparison of Price Waterhouse v. Hopkins,(1) in which the Supreme Court held it to constitute impermissible sex stereotyping to advise a female candidate for an accounting partnership that she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled.... wear jewelry," and go to "charm school,"(2) with cases upholding an employer's right to fire or not to hire males specifically because they were deemed "effeminate."(3)

This differential treatment has important implications for feminist theory. It marks the continuing devaluation, in life and in law, of qualities deemed feminine. The man who exhibits feminine qualities is doubly despised, for manifesting the disfavored qualities and for descending from his masculine gender privilege to do so. The masculine woman is today more readily accepted. Wanting to be masculine is understandable; it can be a step up for a woman, and the qualities associated with masculinity are also associated with success.

We are in danger of substituting for prohibited sex discrimination a still acceptable gender discrimination, that is to say, discrimination against the stereotypically feminine, especially when manifested by men, but also when manifested by women. Ann Hopkins, I fear, may have been protected only because of the doubleness of her bind: It was nearly impossible for her to be both as masculine as the job required and as feminine as gender stereotypes require. But the Supreme Court seems to have had no trouble with the masculine half of Hopkins's double bind; there is little indication, for example, that the Court would have found it to be sex discrimination if a prospective accounting partner had instead been told to remove her makeup and jewelry and to go to assertiveness training class instead of charm school. …