Volume 78, Number 6

December 2003

The Use of Gender-Loaded Identities in Sex-Stereotyping Jurisprudence

Sunish Gulati

In 1989, the Supreme Court held that Title VII protects against discrimination on the basis of sex stereotypes. Since then, sex-stereotyping jurisprudence has developed to protect many people who are discriminated against because of their failure to conform to a wide array of stereotypes about appropriate behavior and appearance for a particular sex. However, the judiciary has denied significant portions of the population protection from discrimination based on sex stereotypes by using a victim’s nonconformity to a particular stereotype to define a “gender-loaded identity,” and then finding that discrimination on the basis of that identity class is not discrimination based on sex or sex stereotypes. Thus although the law is clear that discrimination based on one’s failure to conform to stereotypes about appropriate clothing for a particular sex is in violation of Title VII, when a discrimination victim is classified as a crossdresser or transvestite most courts have found that such discrimination is permissible because it is based on transvestitism and not sex or sex stereotypes. Similar gender-loaded identities include the classifications of lesbians and gay men, who are defined based on their failure to conform to sex-specific stereotypes about appropriate sexual partners, and the classification of transsexuals, who are defined based on their failure to conform to many sex-specific stereotypes about appropriate behavior, appearance, and identity. This Note argues that the judiciary’s use of these gender-loaded identities is unjustified and obscures most courts’ analyses of sex-stereotyping claims.