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Policing the Painted and Powdered Kreis.41.2.1 (Do Not Delete) 2/7/2020 2:45 PM POLICING THE PAINTED AND POWDERED Anthony Michael Kreis† Is homophobia also sexism? This question was the focus of pioneering scholarship nearly three decades ago and has been the subject of reignited controversy because of litigation over marriage rights, employment discrimination, educational opportunities, fair housing, religious exemptions, and military service. Even though some courts, federal agencies, and state employment commissions have recognized that sexual orientation and gender identity discrimination are subsets of sex discrimination, including the landmark Title VII decisions Hively v. Ivy Tech Community College and Zarda v. Altitude Express, academics, judges, and public administrators have been unable to articulate a plain theory of sexual orientation discrimination as sexism. Without a straightforward theory to operationalize into law, some † Visiting Assistant Professor of Law, Illinois Institute of Technology, Chicago-Kent College of Law. Ph.D., University of Georgia, J.D., Washington and Lee University, B.A., University of North Carolina at Chapel Hill. I want to thank Albertina Antognini, Kathy Baker, Melina Bell, Alex Boni-Saenz, Meghan Boone, Peg Brinig, Matthew Bruckner, Jud Campbell, June Carbone, Jessica Clarke, Graeme Dinwoodie, Martha Albertson Fineman, Brian Frye, Ruth Halperin- Kaddari, Rebecca Hamilton, Craig Konnoth, Ken Jost, Nancy Leong, Marty Malin, Lisa Martin, Brett McDonnell, Joe Miller, Kish Parella, Greg Reilly, Christopher Schmidt, Christopher Seaman, Liz Sepper, Matiangai Sirleaf, James Stern, Gregg Strauss, Allison Tait, Christian Turner, Kyle Velte, Ari Ezra Waldman, and Robin Fretwell Wilson for helpful comments throughout multiples stages of this project. I am grateful to the participants of workshops at the University of Illinois’s Harry Krause program, University of Kentucky, Washington and Lee, Chicago-Kent, attendees at the Mid-Atlantic Junior Faculty Forum at the University of Richmond, and engaging audiences at talks hosted at the following law schools: Columbia University Center for Gender and Sexuality Law, Northwestern University, University of Notre Dame, University of Chicago, University of Illinois, University of Missouri-Kansas City, and the University of Virginia. 399 Kreis.41.2.3 (Do Not Delete) 2/7/2020 2:45 PM 400 CARDOZO LAW REVIEW [Vol. 41:399 judges are unpersuaded that sexism and homophobia are linked. Appellate judges have struggled to find consensus even when they agree that sexual orientation discrimination is sex discrimination. This Article’s objective is to reconsider the relationship between sexism and homophobia, by reexamining prior scholarship with new historical evidence and an exploration of recent LGBTQ rights jurisprudence to provide a more complete, easily digestible analytical framework that explains how homophobia fits in the larger puzzle of American sexism. The Article argues that American law’s historical and more contemporary maltreatment of sexual minorities is a product of a particular brand of sexism—ambivalent sexism—which utilizes a carrot and stick approach to subjugate both women and sexual minorities simultaneously. Ambivalent sexism punitively targets visible gender nonconformity while patronizingly rewarding individuals compliant with traditional gender expectations. The Article contends that the development of sex stereotypes by Progressive Era lawmakers and the early administrative state in response to the LGBTQ community’s amplified visibility in the nineteenth century and the reappropriation of paternalistic legal theories initially used to restrict women’s rights, constitute the crux of homophobia in the law. The Article proffers that ambivalent sexism and its attendant sex stereotypes animate the homophobic state, and it urges courts and administrative actors to treat LGBTQ discrimination as a kind of sex discrimination. TABLE OF CONTENTS INTRODUCTION ................................................................................................................ 401 I. THE AMBIVALENT SEXISM PARADIGM .................................................................... 406 II. THE AGRARIAN ERA ................................................................................................. 408 III. THE INDUSTRIALIZATION ERA ................................................................................ 412 A. Sexism, Fragile Masculinity, and the Market-Family Divide ................. 412 B. Perils of the Dive: Sexual Orientation and Sex Stereotype Construction ......................................................................................................... 415 C. Policing Gender and the Regulation of Homosexuality ........................... 427 1. Sex-Based Codifications of Fashion .............................................. 427 2. State Control of Same-Sex Intimacy ............................................. 429 3. Nonconformity and Criminalized Association ........................... 434 Kreis.41.2.3 (Do Not Delete) 2/7/2020 2:45 PM 2019] POLICING THE PAINTED AND POWDERED 401 4. Transgressive Sexuality and the Modern Administrative State ........................................................................................................... 437 IV. THE ECONOMIC EMPOWERMENT ERA .................................................................... 449 A. Challenging Sodomy Bans ........................................................................... 450 B. Marriage, Complementarity, and Same-Sex Family Formation ............ 455 C. Ambivalent Sexism and Employment Discrimination Law .................... 468 1. Muddling Through Sex Discrimination ....................................... 470 2. The Hively-Zarda Doctrine ............................................................ 477 i. The Text-Based Logic of Sex Discrimination .................. 477 ii. Hostile Sexism, Sex Stereotypes, and Gender Nonconformity Doctrine .................................................... 478 iii. Associational Theory and the Benevolent Sexism of Exclusion ............................................................................... 481 CONCLUSION..................................................................................................................... 483 INTRODUCTION The law of sexuality is messy. For decades, courts have sloppily shaped doctrine around theories of sex equality, gender nonconformity, sex stereotypes, sexual orientation, and gender identity.1 Judges have long failed to show a meaningful understanding of gender as a general matter or gender’s place, more specifically, in American history. Courts have muddled through complex questions of sex, sexuality, and gender by making incremental (and sometimes nonsensical) changes in governing 1 See, e.g., Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698, 705 (7th Cir.), as amended (Aug. 3, 2016), and rev’d en banc sub nom. Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (“And so for the last quarter century since Price Waterhouse, courts have been haphazardly, and with limited success, trying to figure out how to draw the line between gender norm discrimination, which can form the basis of a legal claim under Price Waterhouse’s interpretation of Title VII, and sexual orientation discrimination, which is not cognizable under Title VII.”); see also Anthony Michael Kreis, Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination, 96 TEX. L. REV. ONLINE 1, 6 (2017) (critiquing illogical doctrinal developments in Title VII); Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 AM. U. L. REV. 715, 726 (2014) (“The challenge facing the lower courts since Price Waterhouse [sic] is finding a way to protect against the entire spectrum of gender stereotyping while scrupulously not protecting against the stereotype that people should be attracted only to those of the opposite gender.”). Kreis.41.2.3 (Do Not Delete) 2/7/2020 2:45 PM 402 CARDOZO LAW REVIEW [Vol. 41:399 principles, freely interchanging terms that are not precise synonyms, or applying opaque constitutional analyses.2 Though the art of law is line- drawing in a world that defies determinate categories, judges and lawyers have had a noticeably rough go at applying their craft in this space.3 Sex discrimination in American law is not solely about discrimination because of a person’s sex organs or secondary sex characteristics. Instead, the doctrine is concerned broadly with the eradication of inequitable power dynamics and discrimination along the continuum of masculinity and femininity.4 In short, while the function of 2 See, e.g., Robert Post, Prejudicial Appearances: The Logic of Antidiscrimination Law, 88 CALIF. L. REV. 1, 16 (2000) (“The law [of anti-discrimination], of course, is a practical, ramshackle institution, full of compromise and contradiction.”). 3 See, e.g., Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1116 (9th Cir. 2006) (Pregerson, J., dissenting) (rejecting the argument that a grooming policy requiring female employees to wear makeup was unlawful sex-stereotyping under Title VII “because of a cultural assumption—and gender-based stereotype—that women’s faces are incomplete, unattractive, or unprofessional without full makeup”); see also Kimberly A. Yuracko, Trait Discrimination as Sex Discrimination: An Argument Against Neutrality, 83 TEX. L. REV. 167, 170 (2004) (“Once discrimination shifts from being ontological and categorical to being based on complex interactions
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