Disaggregating Sex from Gender: Masculine Women, Feminine Men, and Title VII

Abstract

This article examines the distinction between sex and gender in employment discrimination law under Title VII. Case argues that while Title VII prohibits discrimination based on sex, courts have often conflated sex with gender, failing to protect individuals who conform to the 'wrong' gender expectations—feminine men and masculine women. The article proposes that Title VII should be interpreted to protect against both sex discrimination and gender discrimination, arguing that penalizing an individual for failing to conform to gender stereotypes is a form of sex discrimination because the stereotypes themselves are based on sex.

Key Findings

• Courts have inconsistently addressed gender nonconformity under Title VII
• Gender stereotyping is inherently sex-based and should be actionable under Title VII
• The sex/gender distinction has important implications for both feminist and LGBTQ legal theory
• Price Waterhouse v. Hopkins opened but did not fully realize the potential of sex stereotyping theory

Related Statutes

• Civil Rights Act of 1964, Title VII

Related Cases

• Price Waterhouse v. Hopkins (1989)
• Bostock v. Clayton County (2020)
• Oncale v. Sundowner Offshore Services (1998)