The Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender-Nonconforming Homosexuals Under Title VII
Zachary A. Kramer   |   2004 U. Ill. L. Rev. 465
Download PDF

While gay men and lesbians have increasingly gained legal rights in many areas of the law, they have not been as successful in the context of employment litigation, specifically in the realm of Title VII of the Civil Rights Act. Because sexual orientation is not a protected class under Ti-tle VII, gender-nonconforming homosexuals—that is, effeminate gay men and masculine lesbians—have utilized the Supreme Court’s opinion in Price Waterhouse v. Hopkins to argue that they were discriminated against by their employers or coworkers because they failed to conform to gender stereotypes, which is evidence of sex discrimination under Title VII. On the other hand, gender-conforming homosexuals—that is, mas-culine gay men and feminine lesbians—have, until now, not been able to make this sort of gender stereotyping argument. This note takes up that issue.

After broadening the definition of gender to include both an idealized (anchor) and an idiosyncratic (expressive) component, the author argues that there is an “ultimate” gender stereotype in play when homosexual employees are discriminated against for failing to conform to gender ex-pectations. Unlike the previous gender stereotyping theory, however, the ultimate gender stereotype incorporates sexual preference into a homo-sexual’s expressive gender. The author argues further that, because of its breadth, the ultimate gender stereotype equalizes gender-conforming and gender-nonconforming homosexuals under Title VII.