Gender Nonconformity and the Law by Kimberly A. Yuracko

Author:Kimberly A. Yuracko
Language: eng
Format: epub
ISBN: 9780300217858
Publisher: Yale University Press

THE PROBLEMS

Courts’ failure to endorse a principle of workplace gender freedom is not surprising. True gender freedom is both conceptually complex and practically costly. At its most expansive, it requires protection for all forms of gender expression—those that are stereotypical, atypical, and idiosyncratic, those that are persistent, and those that are transient. Gender becomes whatever people say it is. Yet as gender becomes solely a matter of self-identification, the distinction between gender and personal idiosyncrasy becomes one of mere nominalism, and all conduct becomes potentially entitled to protection.

Title VII, however, prohibits discrimination on the basis of sex and gender,25 not discrimination based on a whole host of other traits and attributes.26 This distinction, to be meaningful, requires a definition of gender more stable than simple self-declaration. External criteria for identifying gender expressions are necessary, and two seem most plausible. First, gender expressions might be defined and limited to those commonly associated with masculinity or femininity. Gender would, in other words, be defined by those expressions that are socially group identified. Alternatively, gender expressions might be limited to those that are deemed integral to one’s gender identity as determined, not by self-proclamation, but by external judge or expert. Versions of both approaches have also been argued for in the race context.27

Yet, once gender is defined using external or objective criteria, there will be some forms of expression experienced by the actor as gender expressions that do not satisfy the category requirements. Protections will necessarily be limited to a prescribed set, and some forms of gender expression will be defined out of the box. In particular, idiosyncratic or impermanent gender expressions are unlikely to be recognized and protected. Herein lies the core tension: complete gender freedom is incompatible with any kind of stable and workable definition of gender, but Title VII requires such a definition.

To make this tension more vivid, consider the following hypothetical. Imagine that instead of objecting to a requirement that she wear makeup at work, Darlene Jespersen objected to a requirement that she smile at customers. She objected not on the grounds that smiling would violate her gender identity but on the grounds that smiling inauthentically at strangers would violate her self-image and sense of self. Jespersen’s challenge to the smile-at-customers rule would clearly lose under Title VII. Title VII does not provide blanket protection for personal expression. Indeed, it does not provide protection even for those forms of personal expression that are consistent with technical job requirements. Title VII does not protect against job irrational treatment; it protects only against treatment based on certain protected characteristics.

Imagine next that Jespersen had objected to the smile-at-customers rule on the grounds that it violated her gender identity. Smiling at strangers, Jespersen might have argued, is a particularly feminine attribute signaling deference and servility. Doing so would conflict with her more masculine and assertive gender identity. Under a broad gender freedom principle, Jespersen’s refusal to smile would now be protected under Title VII. So too, of course, would be any attribute that Jespersen labeled or identified as an expression of her gender.

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