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

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Disaggregating Gender from Sex and Sexual Orientation: the Effeminate Man in the Law and Feminist Jurisprudence University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1995 Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence Mary Anne Case Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Mary Anne Case, "Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence," 105 Yale Law Journal 1 (1995). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Articles Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence Mary Anne C. Case CONTENTS I. INTRODUCTION ..................................... 2 II. ON TERMINOLOGY: GENDER IS FOR ADJECTIVES, SEX IS FOR NOUNS .................................. 9 I. HISTORY AND THEORY OF GENDER BENDING: HEREIN OF HIC MULIER AND HAEC VIR ...................... 18 t Professor of Law, University of Virginia School of Law. Displaying a valuable combination of "feminine" nurturance and "masculine" incisiveness, countless people assisted me in developing the ideas set forth in this Article. A few deserve special thanks for providing extraordinary help at crucial times: They include Mary Becker, Martha Fineman, John Harrison, Pam Karlan, Julia and Paul Mahoney, Dinah PoKempner, Todd Preuss, Reva Siegel, Susan Sturm, Rip Verkerke, and Ann Woolhandler. Among the many others to whom I am no less grateful are Ken Abraham, Kathy Abrams, Dianne Avery, David Bauer, Eileen Boris, Sarah Bums, Lynn Chancer, Mary Coombs, Sarah Corse, Bill Eskridge, Chai Feldblum, Lucinda Finley, Susan Fiske, Katharine Franke, Clark Freshman, Pat Gill, Clay Gillette, Louise Halper, Joe Harder, Alex Johnson, Jody Kraus, Nancy Levit, Debra Livingston, John Manning, Dayna Matthew, Richard McAdams, Linda McClain, Karlin Meyer, John Monahan, Dan Ortiz, Charlotte Patterson, Lee Pershan, John Portman, Gene Rogers, Dick Rorty, George Rutherglen, Ilona Schultz, Buffie Scott, Mike Seidman, Richard Slade, Bill Stuntz, Kendall Thomas, Rene Todd, Paula Vaeth, Frank Valdes, Larry Walker, Glenn Wallach, Ted White, Joan Williams, Evan Wolfson; and participants in the Columbia Law School Feminism and Legal Theory Workshop on the Limits of Essentialism, the National Women Law Students' Association 1994 Conference, and my 1994 class in Feminist Jurisprudence. I am also indebted to my research assistants Eleanor Magers, Julia McDonough, Emmy Paulette, Linda Rosenthal, Devin Schaumberg, Stacey Shawn, Leslie Weaver, Stephanie Webster, and Kim Willoughby; to Kent Olson for reference help; and to Gary Banks, Heidi Reavis, Rick Scarola, Scarola & Reavis, and Bob Tilewick for technical assistance. HeinOnline -- 105 Yale L.J. 1 1995-1996 The Yale Law Journal [Vol. 105: 1 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 Orientationand 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,' 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,"' with cases upholding 1. 490 U.S. 228 (1989). 2. Id. at 235. HeinOnline -- 105 Yale L.J. 2 1995-1996 1995] Disaggregating Gender from Sex and Orientation 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. Therefore, quite apart from the concerns we have for men, particularly effeminate men, in and of themselves, it is important for women and feminists to concern themselves with the treatment of the effeminate man.4 This is because, analogous to the argument made by those who seek to integrate pink- collar ghettos, it may be that certain behaviors are just like certain jobs-they will not be valued unless and until men can feel free to engage in them. So long as stereotypically feminine behavior, from wearing dresses and jewelry to speaking softly or in a high-pitched voice, to nurturing or raising children, is forced into a female ghetto, it may continue to be devalued. 3. Smith v. Liberty Mut. Ins. Co., 569 F.2d 325,327 (5th Cir. 1978); see also Strailey v. Happy Times Nursery Sch., reported as part of DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir. 1979). One might be tempted to respond that Smith and Strailey, circuit court cases from the mid-1970s, have simply been overruled by the Supreme Court's 1989 Hopkins decision. I believe this to be the correct interpretation, but I shall set forth at length below the reasons why courts and commentators, unfortunately not without reason, still treat these cases as good law. Not only has no case successfully applied the Hopkins rationale to protect men displaying stereotypically feminine traits, but several courts in a variety of contexts and with varying degrees of directness have rejected such claims. 4. I shall throughout this Article continue to refer to men who are seen as manifesting characteristics conventionally coded feminine as "effeminate" and not simply "feminine." This is in part because the word "effeminate" is used as something like a term of art in the case law and social science literature. More importantly, although I obviously deplore the negative valuation implicit in the term, it reflects a cultural reality I find unwise to ignore even in choice of terminology. Thus, the lack of parallelism between the terms "masculine woman" and "effeminate man" accurately mirrors the relative value placed in our society both on the respective qualities and on the persons manifesting them. HeinOnline -- 105 Yale L.J. 3 1995-1996 The Yale Law Journal [Vol. 105: 1 One might propose that "gender" be added to "sex" as a prohibited basis for discrimination. This would in some respects be analogous to the inclusion of both "race" and "color." For reasons I shall explain, I do not propose that this be done. Instead, I argue that, at least under Title VII, the existing statutory language and doctrinal categories, if correctly applied, already provide the necessary protection to both effeminate men and feminine women, as well as their masculine counterparts. As to the requirement that employees
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