KRAMER.DOC 6/29/2004 9:43 AM THE ULTIMATE GENDER STEREOTYPE: EQUALIZING GENDER-CONFORMING AND GENDER-NONCONFORMING HOMOSEXUALS UNDER TITLE VII ZACHARY A. KRAMER* While gay men and lesbians have increasingly gained legal rights in many areas of the law, they have not been as successful in the con- text of employment litigation, specifically in the realm of Title VII of the Civil Rights Act. Because sexual orientation is not a protected class under Title VII, gender-nonconforming homosexuals—that is, effeminate gay men and masculine lesbians—have utilized the Su- preme Court’s opinion in Price Waterhouse v. Hopkins to argue that they were discriminated against by their employers or coworkers be- cause they failed to conform to gender stereotypes, which is evidence of sex discrimination under Title VII. On the other hand, gender- conforming homosexuals—that is, masculine gay men and feminine lesbians—have, until now, not been able to make this sort of gender stereotyping argument. This note takes up that issue. After broadening the definition of gender to include both an ide- alized (anchor) and an idiosyncratic (expressive) component, the au- thor argues that there is an “ultimate” gender stereotype in play when homosexual employees are discriminated against for failing to con- form to gender expectations. Unlike the previous gender stereotyping theory, however, the ultimate gender stereotype incorporates sexual preference into a homosexual’s expressive gender. The author argues further that, because of its breadth, the ultimate gender stereotype equalizes gender-conforming and gender-nonconforming homosexu- als under Title VII. * The author would like to thank Professors Carlos Ball, Elaine Shoben, and Richard Storrow; other thanks to Jeff Bedell, Shelly Cohen, Melissa Economy, Blair Hanzlik, Michael Jarecki, Maria Saez, Becky Ray, Laura Dreznes, Beth Cobb, and Willy Lumpkin; and many, many thanks to my fam- ily and to Victoria Benson (even though she doesn’t want to be thanked!). Any and all mistakes are, of course, my own. 465 KRAMER.DOC 6/29/2004 9:43 AM 466 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2004 I. INTRODUCTION In recent years, gays and lesbians1 have made marked strides toward achieving legal rights. From obvious gains in the area of family law, in- cluding the expansion of parental and adoption rights2 and the creation of quasi-marital status,3 to the Supreme Court’s opinion in Romer v. Ev- ans,4 striking down a Colorado state constitutional amendment that de- prived homosexuals of protection under antidiscrimination laws,5 the le- gal standing of gays and lesbians has clearly increased over time. This trend is all the more highlighted by the Supreme Court’s recent decision in Lawrence v. Texas,6 where the Court struck down a Texas law that criminalized same-sex sodomy.7 One area of the law where gays and les- 1. In terms of locution, this note purposely employs the most limiting definitions of “gays” and “lesbians,” so as to avoid any conceptual problems related to defining a person’s sexuality. There is, however, extensive scholarship that addresses those more complicated, definitional questions of sexual orientation. For a natural law conception of sexuality, see John M. Finnis, Law, Morality, and “Sexual Orientation”, 69 NOTRE DAME L. REV. 1049 (1994); for an economic rendering of sexuality, see RICH- ARD A. POSNER, SEX AND REASON (1992) (laying out a cost-benefit analysis of sexuality); or, for a postmodern reading of the sexuality question (or, at least, a social constructionist rendering), see MI- CHEL FOUCAULT, THE HISTORY OF SEXUALITY, VOL. I: AN INTRODUCTION (Robert Hurley trans., Vintage Books 1990) (1976). This list, of course, is in no way meant to be comprehensive. 2. See, e.g., In re B.L.V.B., 628 A.2d 1271 (Vt. 1993) (holding that state adoption law permits second-parent adoption by same-sex couples). For a recent discussion of the legal hurdles facing same-sex mothers, see Melanie B. Jacobs, Micah Has One Mommy and One Legal Stranger: Adjudi- cating Maternity for Nonbiological Lesbian Coparents, 50 BUFF. L. REV. 341 (2002). For more general discussions of how family law has changed to meet the needs and interests of gays and lesbians, see David L. Chambers & Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, 33 FAM. L.Q. 523 (1999); Karla J. Starr, Adoption by Homosexuals: A Look at Dif- fering State Court Opinions, 40 ARIZ. L. REV. 1497 (1998). 3. See, e.g., VT. STAT. ANN. tit. 15, §§ 1201–1207 (2003) (providing civil unions for same-sex couples); Baker v. State, 744 A.2d 864 (Vt. 1999) (declaring the state bar on homosexual marriage a violation of the state constitution). During the publication of this note, the Massachusetts Supreme Judicial Court issued two opinions dealing with the constitutionality of same-sex marriage under the state constitution. These decisions, taken together, determined that the state must confer gays and lesbians full-scale marital rights, and that civil unions would not suffice under this standard. See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (striking drown Massachusetts’s marriage licensing law on the grounds that it violated the state’s constitution); In re Opinion of Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (declaring that only full civil marriage, and not civil unions, would suffice under the state constitution). 4. 517 U.S. 620 (1996). 5. See id. at 635–36. 6. 123 S. Ct. 2472 (2003). 7. Id. at 2484. Lawrence is a monumental decision for a number of reasons, most of which are beyond the scope of this note. Nevertheless, there are two aspects of the decision that are relevant here. First, Lawrence overruled the Court’s opinion in Bowers v. Hardwick, 478 U.S. 186 (1986), where the Court had held that the Constitution did not confer a fundamental right for homosexuals to engage in sodomy in the privacy of their homes. Id. Second, the language of the Lawrence opinion is rather progressive, employing a broad definition of “liberty,” see, e.g., Lawrence, 123 S. Ct. at 2484 (“[Homosexuals’] right to liberty under the Due Proc- ess Clause gives them the full right to engage in their conduct without intervention of the govern- ment.”), and discussing homosexual relationships in practically moral terms, see, e.g., id. (“The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”). Although it may be hard to predict the full effect of Lawrence, there is no doubt that it is a gigantic legal victory for gay men and lesbians. KRAMER.DOC 6/29/2004 9:43 AM No. 2] THE ULTIMATE GENDER STEREOTYPE 467 bians have been less successful, however, is in employment law, primarily in the context of Title VII of the Civil Rights Act of 1964.8 It is noted quite often in Title VII case law, as well as in Title VII scholarship, that Title VII’s prohibition on discrimination “because of sex” does not extend to discrimination based on sexual orientation.9 The obvious implication of this trend is that homosexuals, unlike similarly situated racial minority members, women and the elderly, are not able to state claims for discrimination under Title VII. Because of the inaccessi- bility of relief in federal court under a sexual orientation theory, homo- sexuals have recently begun seeking alternative avenues of relief under Title VII. This note will examine one such theory—namely, the gender stereotype theory of sex discrimination.10 In Price Waterhouse v. Hopkins,11 the Supreme Court held that “an employer who acts on the basis of a belief that a woman cannot be ag- gressive, or that she must not be, has acted on the basis of gender.”12 The Court’s reasoning constitutes what is conventionally known as the gender stereotyping theory.13 The thrust of the Hopkins theory is that an em- ployer discriminates on the basis of the employee’s sex because the em- ployee’s behavior and demeanor are not consistent with commonly ac- cepted gender stereotypes.14 To follow this argument, one must first understand the subtle differences between how scholars define “sex,” “gender,” and “sexual orientation.” In the context of gender stereotyping, “sex” and “gender” are not automatically intertwined. According to Professor Francisco Valdes, “sex” refers to “the physical attributes of bodies, and specifically the ex- ternal genitalia of those bodies,”15 whereas “gender” refers to the “per- sonal appearance, personality attributes, and sociosexual roles that soci- 8. 42 U.S.C. §§ 2000e–2000e-17 (2000). 9. For the judicial version of this refrain, see Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989). For the best statement of this in the scholarly literature, see Recent Case, Employment Law—Title VII—Sex Discrimination—Ninth Circuit Holds That Male Coworkers’ and Supervisor’s Harassment of Male Employee for Failing to Meet Sex Stereotype Constitutes Sex Dis- crimination. Nichols v. Azteca Rest. Ent., 256 F.3d 864 (9th Cir. 2001), 115 HARV. L. REV. 2074, 2074 (2002) [hereinafter, Recent Case, Nichols] (“It is a common refrain in Title VII jurisprudence that the statutory prohibition on ‘discrimina[tion] . because of . sex’ does not extend to discrimination on the basis of sexual orientation.”) (alterations in original) (footnote omitted) (quoting 42 U.S.C. § 2000e(a)(1) (1994)). 10.