Anna Kirkland

Whats at Stake in Transgender Discrimination as Sex Discrimination?

a male-to-female (MTF) transsexual reghter in Salem, Ohio, prevailed in court against the city in the summer of 2004 for employment discrimination on the basis of sex. Sex is a protected category under Title VII of the 1964 Civil Rights Act, along with race, color, religion, and national origin. Neither transsexualism, gender identity, nor gender expression is listed as a protected category in the statute, but the federal Sixth Circuit Court of Appeals held that sex encompasses gender non-conforming behavior and appearance (Smith v. City of Salem 2004b, 571) and therefore transsexualism or transgenderism. Local ofcials began trying to re Smith, a reghter for seven years, as soon as he divulged his diagnosis of gender identity disorder and his plans to make a medically guided MTF transition.1 Smiths openness was prompted by coworkers inquiries about his appearance, arising from their perception that he had begun to look insufciently masculine as he began expressing a more feminine appearance on a full-time basis (Smith 2004b, 568). His supervisor, after promising not to, told the re chief about Smiths
I would like to thank Elizabeth Cole, Bruce Frier, Dena Goodman, Mika Lavaque-Manty, Orit Kedar, Rob Mickey, Amit Ron, Rob Salmond, Jana von Stein, Andre Wilson, and two anonymous Signs reviewers for their very helpful comments and assistance in working out these arguments. I am grateful to Randi Barnabee, Denise Brogan, Bruce Frier, Gloria Hage, and Andre Wilson for discussing with me their roles in the case, the Michigan Task Force, or the subsequent policy. 1 The action began early in Smiths transition period, during what is known as the real life experience of dressing as the sex one is in therapy to become. His attorney explained that Smith had not yet changed his rst name and considered himself to be pretransition, and so I use the pronoun Smith used at the time (Barnabee 2004). I have taken care to bear in mind Jacob Hales (1997) admonitions to nontrans scholars writing about trans issues. I share a nontrans feminist self-awareness with Cressida Heyes and, like her, wish to highlight solidarities between trans and nontrans feminists of any gender, who must all be concerned with the future directions of the law that draws us together and dictates our proper behavior. Thinking of solidarity rst can help nontrans feminists to remain vigilant against slippage into trans orientalism, as Heyes helpfully calls it (Heyes 2003, 109698).

immie Smith,

[Signs: Journal of Women in Culture and Society 2006, vol. 32, no. 1] 2006 by The University of Chicago. All rights reserved. 0097-9740/2006/3201-0008$10.00

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plans, and the chief then arranged a meeting with city ofcials to devise a plan to re him. Their plan was to require three psychological examinations with doctors of the citys choosing, with the hope that Smith would resign or refuse to comply (so he could be red for insubordination). Instead, he sued after receiving a one-day suspension. Smith won his case in one of the strongest and most expansive federal court rulings yet on the meaning of sex in U.S. antidiscrimination law. The outcome was possible because discrimination on the basis of sex has come to mean discrimination on the basis of sex stereotypes, which in turn means being required to display femininity (for women) and masculinity (for men). The Smith court concluded that Smiths failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind [the discrimination] (Smith 2004b, 572).2 A transgender police ofcer has since used the Smith ruling to win a $320,500 judgment plus $527,888 in attorneys fees against the city of Cincinnati for discriminating against her (Barnes v. City of Cincinnati 2005). Yet courts still uphold employers rights to require sex-specic grooming standards (including requiring full makeup and nail polish for women and banning their use by men; Jespersen v. Harrahs 2006) and sometimes excuse sex-specic hiring when employers can prove that it is necessary to hire only one sex for a particular job (such as one that involves seeing members of the opposite sex naked; Fesel v. Masonic Home of Delaware 1978; Backus v. Baptist Medical Center 1981). So it seems unlikely, I argue, that the Smith decision can really mean what it claims to mean about severing gender from its appearance on either a legal, political, or conceptual level. I examine the case and its context here for its conceptual problems and to make clear the stakes for all of us at this unsteady and contradictory moment in sex discrimination law. Interestingly, the Smith ruling also settled a policy question at the University of Michigan. On February 23, 2005, University of Michigan provost Paul Courant sent an e-mail to the entire university community announcing a change in the universitys nondiscrimination policies. The administration would from then on follow the advice of the general counsels ofce that discrimination based upon gender non-conforming be-

2 The case history of Smith v. City of Salem includes two 2004 appellate opinions, one replacing the other, and the 2003 trial court opinion. The year distinguishes between the trial and appellate level opinions, and 2004a refers to the original June 2004 appellate ruling while 2004b refers to the August replacement opinion. The August opinion (2004b) is the nal ruling. The section of this essay Reading the Smith decision, both of them explains why the court revised its appellate opinion.

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havior, including gender expression and gender identity, is expressly included in and covered by the prohibition against sex discrimination contained in Title VII of the Civil Rights Act of 1964 and the equal protection clause of the United States Constitution.3 The provosts email was the culmination of several years of investigation and deliberation about how to improve the campus community for trans people and followed directly from the Smith decision.4 The university interpreted the Smith case as an act of judicial policy making that effectively banned discrimination based on gender identity and gender expression throughout the entire Sixth Circuit jurisdiction (Michigan, Ohio, Tennessee, and Kentucky). That interpretive move comprised the universitys response to recommendations from its Task Force on the Campus Climate for Transgender, Bisexual, Lesbian and Gay (TBLG) Faculty, Staff, and Students, which had been charged with making recommendations to improve the campus climate for TBLG people, transgenders in particular. The task force, the Michigan Student Assembly, and the Graduate Employees Union had all supported the addition of a new freestanding clausegender identity and gender expressionto the nondiscrimination policy in the universitys bylaws instead. (Sexual orientation was already included, though it is not a protected category in Michigan state law or in federal civil rights laws such as Title VII.) Their recommendations preceded the Smith decision by a few months. Addition of new language would have required a public vote by the university regents, who are elected for eight-year terms in biennial statewide partisan elections. Michigans solution is unusual most colleges and universities that have trans-friendly policies have adopted a specic new gender identity clause rather than subsuming trans discrimination under sex discrimination.5 So a victory for a trans plaintiff in court was also a politically convenient method of expanding

University Non-Discrimination Statement, electronic mail sent February 23, 2005, from Provost Paul N. Courant to Members of the University Community, University of Michigan. 4 I will use the term trans to refer to the broad group of transsexual or transgender people. Where I have information about how a plaintiff refers to him or herself, I will use that term. 5 Fifty-ve institutions have gender identity or gender expression in their nondiscrimination policies as of April 13, 2006, including Cornell University, the University of California, Brown University, and the University of Oregon. Rutgers University and Vassar College also instituted alternative policies similar to the University of Michigans (i.e., interpreting another clause such as sex or sexual orientation rather than adding new language; Transgender Law and Policy Institute 2006).

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rights in another community while keeping the new subjects of those rights from being clearly and politically identied. I use this interesting set of situationsthe Smith decision and the fact that its meaning is simultaneously a victory for trans rights yet is also implausible, unstable, and in some ways undesirable, as well as the universitys choice of category expansion (trans discrimination is now sex discrimination) over trans recognition (a new category, gender identity and gender expression)to reect on some critical conceptual problems in sex discrimination law. The conceptual difculties I lay out are of concern to trans people, gender-conforming people, and perhaps especially, as my argument will show, to gender nonconformists who are not transgender but are somehow noncompliant with heteronormativity. As feminists, we all have a stake in how stringent gender norms are, how they are enforced, upon whom, and how violations are treated under our laws because we want increased freedom and equality in these realms, despite variations in how we would enjoy the benets. Some of us reap privileges from outward gender conformity, of course, while butch women, effeminate men, and those of indeterminate gender face violence and subordinations of many kinds.6 Racialization and other processes of identity demarcation make these hierarchies more complicated still (Ferguson 2004). Feminists rst reaction to news of the Smith victory is likely to be satisfaction that transgender rights have just been expanded in a new way and hopefulness that it might mean legal protections for more and different ways of living gender. As I will explain, there are two possibilities for interpreting this new case: rst, the strong liberation view, under which the ruling portends liberation for everyone from employer demands to look or act in any gendered way that would seem appropriate for our embodied selves at work, or, second, the sociopolitical context view, in which the Smith ruling cannot really mean what it seems to mean because law actually interacts with gendered identities in a far more unsteady and conservative way. I defend a sociopolitical context view of the Smith case
Smith-type reasoning lumps sexual orientation discrimination and transgender discrimination together and would seem to make sexual orientation discrimination illegal under the ban on sex discrimination as well, at least if the TBLG person is also gender nonconforming. Transgender people are not necessarily gay-, lesbian-, or bisexually identied, however, and lesbian, gay, or bisexual people are often comfortable in their assigned gender. Activists and scholars have struggled with this problem of coalition (Hale 1997; Halberstam 1998; Stryker 2004), and Congress has repeatedly refused to add sexual orientation to Title VII legislatively (Feldblum 2000). I have kept the focus here on the legal expansion of sex to cover trans people, but there are clearly other critical issues involved as well.
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here and analyze the discursive mechanisms and political commitments of sex discrimination law that create such a context. What this trans rights expansion means will be determined within the realm of sex discrimination law and politics that surrounds the Smith case before, after, and alongside it. What is at stake in the choice to bring in gender non-conforming behavior, gender expression, or gender identity (as the University of Michigan interpreted the elision) to stand with discrimination because of sex? Much depends on what is already there. What does it mean to prefer a new and freestanding category instead, like gender identity and gender expression, as transgender activists and the Michigan Task Force did? Identity-based rights claiming is fraught territory as well (Bumiller 1988; Brown 1995). Feminist and queer legal theorists may want to avoid giving over a new named identity to law and taking up the pretense that identities are just there, deserving recognition, rather than, as Wendy Brown puts it, complex effects of disciplinary and liberal modalities of power (1995, 59). Moreover, calling transgender discrimination sex discrimination puts trans people and nontrans people in the same jurisprudential boat. Will we all t? Can law be merely instrumental, a tool for bettering the circumstances of individual plaintiffs? Is it simultaneously constitutive of selves and identities, so that the content of laws description of a person can change the meaning of the identity being regulated and protected, both as litigants grasp it in the law and as they see themselves as deserving of rights? Law is, I argue, both instrumentally useful and constitutive precisely through that instrumentality. I am just not sure that the outcome will be entirely worth celebrating. From my ambivalence, I take up the question of what transgender discrimination as sex discrimination may do to transform both transgender legal identities and sex discrimination doctrine. I would argue that we are not quite yet at the moment when feminist and queer legal theorists can say how the Smith decision has constituted trans identities. But I can lay out the stakes set up thus far, so that as interactions between legal formation and these regulated identities move forward we can see what is happening more clearly. This study begins by setting out legal scholars hopes for transgender rights. I then explain what made the innovation of the Smith case possible, with particular attention to the key legal concept: the illegal sex stereotype. Philosopher K. Anthony Appiahs recent (2001) work on stereotyping in U.S. antidiscrimination law provides an insightful framework that I introduce to guide us through the different deployments of stereotyping. The legal denition of employment discrimination because of sex, as I shall explain, went from meaning simply because of being a biological

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male or female to encompassing because of requirements to behave in a masculine (for men) or feminine (for women) way. That innovation, in the 1989 case of Price Waterhouse v. Hopkins, paved the way for the Smith court to say that transsexualism is simply a label applied to people who violate the stereotype that a man should remain a man and that therefore it is the same kind of discrimination that the brash, masculineseeming (nontrans) Ann Hopkins faced when she worked at Price Waterhouse. I next analyze what the concept of the sex stereotype does in the Smith case itself and offer some strong cautions about how it describes trans identities. Talking about stereotypes is often judges way of talking about what the content of identities should and should not be, and so it is a tremendously important legal concept. I then trace a genealogy of the sex stereotype, examining how it has actually worked in sex discrimination law over the past few decades for its putative beneciaries, women, so that we can see what we are stepping into. I argue that the governing history of the sex stereotype ought to give us pause, even though it has recently helped achieve legal victory for trans employees. The idea of the sex stereotype not only fails to protect against many of the most common ills of sex discrimination, however dened, but actually excuses many of the failures of sex discrimination law. Its multiple shades of meaning make it very unstable. Describing the wrongs done to trans people at work as illegal stereotyping may reify inept characterizations of trans identities while providing a false sense of victory; it certainly cannot be counted on to ground a liberating political-legal response to trans oppressions.

Did we get what we wanted?

Transgender rights scholars have previously assailed court decisions denying that transgender discrimination is sex discrimination (Currah and Minter 2000). The reasoning of the Smith decision greatly expands the legal representation of discrimination on the basis of sex in directions that many feminist theorists also supportaway from biologically essentialist concepts of binary sex and toward a more social and performative understanding of gender (Case 1995; Franke 1995; Kirkland 2003). From this view, the focus of sex discrimination law should be the coercive structures of gender in the workplace, not the bodies counted as male and female. Katherine Franke has argued that it would be a signicant mistake for us to advocate to add transgendered people to the laundry list of protected statuses that appear in most antidiscrimination laws: sex; race; national origin; religion; and, if you are lucky, sexual orientation (Franke

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1999, 378). Adding to the list may detract from the critique of structural power and keep the focus on the traits of the newly included group and their correct tness within the law. Instead, Franke urges recognition of transgender employment discrimination as part of the coerced enforcement of gender orthodoxies through workplace rules (1999, 380). She suggests that we robustly interpret what our sex- and gender-based discrimination laws prohibit (380) in order to ght those orthodoxies. Franke would prefer to expand the legal notions of sex and gender we already have rather than add freestanding trans categories to lists of protected traits because she wants to connect the enmity that trans people experience to the hegemony of gender generally. Some version of robust interpretation is exactly what the Smith court did, though I am not sure that it is exactly what a feminist embracing Frankes very compelling position would want. My cautionary stance in this essay comes not from substantive disagreement with Frankes vision but rather from concern with courts abilities to undertake that robust interpretation generally and with the Smith case specically, our rst big hint of what that shift may look like.

What is a stereotype?

It is both signicant and problematic that the evolution of the concept of the stereotype is what is driving this robust interpretation. As Appiah points out, our concept of a stereotype in antidiscrimination law can actually be parsed into three different ideas: the statistical stereotype, the false stereotype, and the normative stereotype (Appiah 2001, 6365). Statistical stereotypes are those that are statistically correlated with being a member of a group (women are physically weak) but that may not be true for any particular member of the group (a strong woman). False stereotypes are those that indicate a propensity in an individual because of group membership but wherein the generalization is false as well as malicious (Mexicans are lazy). The third, and for Appiah, most interesting sense of the word stereotype is not simply a generalization as the rst two are but rather is grounded in a social consensus about how [group members] ought to behave to conform appropriately to the norms associated with membership in their group (Appiah 2001, 64). It is a rich description of what being a certain sort of person ought to mean. Of course normative stereotypes may dictate a degrading identity, groups may enforce them oppressively on their own members, and the law may place the coercive power of the state behind enforcing a degrading identity upon nonconformists.

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But Appiah argues that collective identities are a resource for . . . self-creation and not just a hindrance (2001, 68). Concern over the gender of a prospective sexual partner is not only a version of normative stereotyping, he points out, but also a critical part of most peoples sexuality. Therefore we must accept the existence of normative stereotypes, particularly ones that are congured in such a way as to serve as potential instruments in the construction of a dignied individuality (Appiah 2001, 68). This concept of the stereotype is very different from the usual sense in which judges deploy it, to condemn womens exclusion from traditionally male spheres of employment, for example (either a statistical stereotype that women as a group are too weak for a job requiring physical strength or a false one that they are just too irrational for leadership). The problem to be tackled for Appiah is to make sure that inequality in American society does not systematically deprive some people of the instruments needed to construct a dignied individuality (Appiah 2001, 6870). What is interesting here, then, is how antidiscrimination law has greatly increased the dignity and employability of trans people but has done so in a way that rests on all the vagaries of the stereotyping concept that Appiah so ably explains. My theoretical perspective, which is much less enchanted with liberal individuality than Appiahs, brings me to wrestle with the instrumentally attractive features of the Smith case along with its discursive instability and reproduction of gender regulation in the law. The best thing the Smith decision did was remove the need for dehumanizing inquiries into what is between plaintiffs legs (Are you ling this lawsuit as a man or woman? Lets get expert testimony about which you are). It would seem at rst glance to be a unique case, moving sex discrimination law rmly toward negating normative stereotypes (this is what a man should be) rather than statistical (women are weak) or false stereotypes (women are ill suited for the public sphere). To the extent that is so, I am pleased. On this view, the case deals with normative stereotypes for a gendered life held consistent over the life span, where the idea being illegally enforced is that being a man does not include feminine behavior and becoming a woman. The group is the sex assigned at birth, and the norms are all the norms of appearance and behavior associated with being male or female. In other words, a normative stereotype is not simply an intellectual error about someone (transsexuals are likely to be criminals) but a way of referencing the identity script of being a man or being a woman. However, as I shall show in analyzing the language of the case itself below, the court twists the implications of making such a strong normative stereotype illegal by presenting it as a much more ordinary statistical stereotype about gender and appearance,

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namely, that most men do not put on feminine accoutrements but that the few for whom that is not true should not be penalized in the job market (just like our strong woman). If we take Appiahs parsing seriously, we ought to be concerned about the exact deployment of the stereotype concept, attentive to its variations, and warned that it may contain descriptions of our selves as gendered people that are so constitutive of ourselves (for most of us) and our practices that it is hard to imagine life without them. Trans people are imagining life without the gender role into which they were born, of course, but many are simultaneously imagining taking up another one that is also richly described in normative stereotypes, just like ones that most nontrans men and women occupy throughout their lives. Many seek or occupy an alternative gender precisely because it is meaningful and full of content for the dignied individuality they want to construct.7 How will we know the difference between an oppressive script forced on someone and the very meaningful content of many peoples lives? Gender is an extremely complicated script in that way because so much of it is both deeply constitutive of ourselves and yet patriarchal, heteronormative, and subordinating. Appiahs view highlights the meaningful potential rather than the oppressive operations of normative stereotypes, but he is correct to argue that they are present in the way most of us live our gender and sexualities. What say should the state, through law, have in the constitution and enforcement of normative stereotypes, given that such stereotypes are not simply bad ways of reasoning but also sustain hierarchies of privilege and subordination? And, more directly for this inquiry, if normative stereotypes are so important, should we not want judges to be more forthright about the way they manage identities using them?

How did we get here?

Let us back up for a moment. How did the Smith ruling become jurisprudentially possible in the rst place? In our system jurisprudence builds up as a result of case-by-case dispositions and interplay between legislatures and courts, in the case of statutory interpretation. Congress may intervene if it does not like the Supreme Courts interpretation of one of its statutes, as it did in the Civil Rights Act of 1991, undoing conservative Court interpretations of employment discrimination protections. During a period
7 I do not mean to imply here that there are only two normative types for gender but rather that most of us occupy a gendered self-understanding that is richly described within some community.

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of broadening of meanings, often accompanied by disagreements among lower courts, rulings conict across jurisdictions, but neither Congress nor the Supreme Court has intervened. This is exactly our situation in statutory (Title VII) sex discrimination law; some circuits read sex expansively, and some restrictively, yet they do not agree about what a sex stereotype is, and neither Congress nor the Supreme Court has said anything about trans inclusion. The most signicant period of broadening for the meaning of sex under Title VII began, as I have noted, in 1989 with Price Waterhouse v. Hopkins, though trans- and gay-inclusive readings using that precedent have appeared only recently. Hopkins, the plaintiff in Price Waterhouse, was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines and demanded much from the multidisciplinary staffs with which she worked (Price Waterhouse 1989, 278). She failed to make partner in the accounting rm, however, and was advised that her chances might improve if she would, in the words of a senior male colleague, walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry (278). The Supreme Court recognized that gendered expectations (here, a double bind of requirements, femininity plus masculine, highpowered competence) amounted to sex discrimination for Hopkins (Case 1995). Smith initially lost at trial because the judge did not accept his interpretation that, after Price Waterhouse, Title VIIs ban on sex discrimination includes discrimination against gender nonconformists like transsexuals. The discrimination [Smith] alleges . . . is, in reality, based upon his transsexuality, the judge found, and ruled the claim invalid because there is no ban on discrimination on the basis of transsexuality as such (Smith 2003, 9). This lack of explicit listing in Title VII has been the usual stopping point in trans employment-rights litigation. The trial court decided the case under a federal decision that predates the Price Waterhouse case, Ulane v. Eastern Airlines (1984), in which a federal court declined to expand the understanding of sex to include discrimination against an airline pilot who was red after an MTF transition. According to Ulane, Congress passed Title VII with a narrow view of sex in mind and did not understand the term sex to apply to anything other than the traditional concept of sex (1984, 108586).8 In this view, sex means the
8 Other appeals courtlevel cases that have dismissed the argument that sex discrimination includes discrimination against trans people are Holloway v. Arthur Andersen (1977) and Sommers v. Budget Marketing (1982). As many scholars have noted, it is not easy to gure

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biological differentiation of the human species into male and female and would not cover changing sexes or redening oneself as other than ones birth sex, anatomically or chromosomally dened. If Price Waterhouse reinterprets Ulane, however, Smith has a viable claim. But if sex stereotyping is not the same as antipathy toward trans employees, then Ulane is the denitive case that closes off the expansion of sex to because of sex change or gender identity. (What if I want to say sex stereotyping is not the same as hating trans people, but I want the protections that a Price Waterhouse reinterpretation will offer?) The trial court never discusses the fact that in the Ninth Circuit one of the cases that supposedly bolsters the Ulane position was held to have been overruled by the logic and language of Price Waterhouse in 2000 (Schwenk v. Hartford 2000, 1201). Nor does it mention that in the same year the First Circuit also applied Price Waterhouse to an Equal Credit Opportunity Act claim by a biologically male plaintiff, Lucas Rosa, whose loan application was rejected and who was told to go home and change out of the dress he was wearing (Rosa v. Park West Bank and Trust Company 2000).9 So if there has been a recent revolution in the use of Price Waterhouse as precedent, the Smith trial court was determined not to notice.

Reading the Smith decision, both of them

The appeals court overturned the trial court, ruling that Smith was indeed protected under Title VII and that a Price Waterhouse theory of sex stereotyping explained why. In Price Waterhouse the Supreme Court had deout what Congress meant when it included sex in Title VII at all, especially because the provision was added via amendment by a Virginia congressman, Howard Smith, known for manipulating rules to try to kill civil rights bills aimed at dismantling Southern racial apartheid (Whalen and Whalen 1985; Franke 1995). He introduced the sex amendment to jeers and laughter and evidently hoped the ridiculousness of its inclusion would kill the civil rights bill (Skrentny 2002). Some feminist lawmakers joined his effort in good faith, however, and so the historical record is not so simple. The sex provision was clearly for the women (and, I would argue, for the white women imagined to be constituents otherwise left out of the bill if it only covered race). As Justice Antonin Scalia wrote in Oncale v. Sundowner Offshore Services (which extended sexual harassment law to cover male-on-male harassment), however, statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed (Oncale v. Sundowner Offshore Services 1998, 79). Even a very conservative justice might not care much that Congress never had trans people in mind. 9 Rosas gender self-identication or trans status is not clear in the opinion.

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clared that we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group (1989, 251). After Price Waterhouse, the appeals court went on to explain on behalf of Smith, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victims sex (Smith 2004b, 574). Under what has been called the sex-ipping test, judges imagine the person as the opposite sex and ask, would the discrimination have occurred (Wintemute 1997; Toker 2003)? Applying a sex-ipping analysis, the court observes that it follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victims sex (Smith 2004b, 574). Discrimination against a plaintiff who is a transsexualand therefore fails to act and/or identify with his or her genderis no different, the reasoning continues, from the discrimination directed at Ann Hopkins . . . who, in sex-stereotypical terms, did not act like a woman (Smith 2004b, 575). The ruling focuses explicitly on the judicial understanding of gender, the socially mandated behavior and appearance for men and women, respectively, as opposed to sex, the anatomical division of our species into male and female. There are divergent interpretations of what the ruling could mean, as Ive noted: rst, the strong liberation view, meaning liberation for everyone from employer demands to look or act in any gendered way that would seem appropriate for our embodied selves at work, or, second, the sociopolitical context view, reading Smith in light of the many other cases upholding normative gender stereotypes at work and assuming it cannot really entail the strong liberation view. If the sociopolitical context view is (or turns out to be) correct, there must be something that is holding back the strong liberation view. I would argue that the mechanism holding it back is the subtle redescription of normative gender stereotypes into the language of statistical stereotypes. The case reduces the story of gender oppression to a story about stereotypes and makes MTFs into men who wear dresses and makeup. (The Jespersen v. Harrahs case [2006] noted in my opening discussion, by the way, afrmed employers rights to make nontrans women wear makeup, a point to which I will return.) Smiths sex is xed as male, and gendered signals such as clothing are simply objects of personal choice. Most men do not usually wear dresses and makeup, but if one happens to want to then he should be allowed to do so. Most women do not want to go through the rat line as cadets at

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the Virginia Military Institute, but if one happens to want to then she should be allowed to do so (United States v. Virginia 1996).10 Transsexuals or trans people per se do not really exist in the opinion; there just happen to be some men out there who want to wear dresses. Sure, men in dresses are rare (like the woman who is stronger than many men), and we can allow them to keep and get jobs without much upheaval for everyone else because the law can treat them as exceptional. The reasoning empties out the content of normative stereotypes about genderwhat we look like and act like as recognizable men or womenand makes them into contingent personal choices that do not have anything to do with the constitution of our gendered identities (and that only a few people will make in dissenting ways). The court ts an Appiah-style normative stereotype into the usual framing of statistical stereotypes: most men are stronger than most women, and most women wear clothes that most men do not wear. But there are some unusually strong women, and there are some men who wear womens clothes. Like Rosa, the bank loan applicant, Smith is a man who just happens to want to put on some signs of femininity (a mirror opposite of Hopkins, a woman who did not want to put them on and put on masculinity instead). Notice that the reasoning has to work this way because of the sexipping test, which assumes rigidity in the polar male/female categories. Would Smith have been red if, as a woman, he had begun to look more feminine? Of course not, and hence the story of causation: because of sex. Leaving aside the double bind of anyone trying to be simultaneously a feminine woman and a reghter, a court can easily imagine that a similarly situated woman would not have been red and thus Smith was red because of his sex. The sex-ipping test plus the vagaries of sexstereotyping theory yields the Smith decision. The image of gender is still rigidly polar (men/women), and the normative content of gender is held at bay and transformed into a matter of accessorizing, of simply adding a little femininity or masculinity to the actual sex we already are. There is no room for the idea that gender might be, as Judith Butler observes, a social category that is assigned to us that exceeds us in its generality and power, but that also, consequentially, instances itself at the site of our bodies (Butler 2004, 98). Like the Diagnostic and Statistical Manual of Mental Disorders that Butler analyzes, the law also seeks to establish gender as a set of more or less xed and conventional norms, even as it keeps giving us evidence to the contrary, almost as if it were at cross purposes with its own aims (2004, 98).
10

See discussion of the case below.

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Critically, there were two rulings: one originally handed down in June 2004 (Smith 2004a) and then another, revised ruling in August 2004 (Smith 2004b). The rst ruling was more expansive than the one that subsequently replaced it. Observers of the case concluded that the Sixth Circuit Court downgraded the reasoning of the original June opinion to avoid having to rehear the case en banc (with all judges on the court sitting together instead of the usual three-judge panel) and possibly overrule it.11 The original ruling went beyond the previous habit of judges who wanted to rule in favor of gender nonconformists but wished to evade the question of whether transsexuals or lesbian, gay, or bisexual people are covered. Previously in one such case, the judge simply describes stereotypical queeny gay male behavior but never mentions the fact that the plaintiff is either gay or perceived to be gay and instead describes him as a gender nonconformist (Nichols v. Azteca Restaurant Enterprises 2001). This framing is required to walk the line between Price Waterhouse and the fact that a great deal of precedent denies coverage to gays and lesbians under the sex provision of Title VII. The rst Smith rulings departure from this type of subterfuge was especially bold, though perhaps it was only possible because the notion of sex stereotyping more easily encompasses transgender people than lesbian, gay, or bisexual people who may be gender conformists in their presentation. This expurgated part of the rst opinion was a more robust account of normative stereotyping and its relation to trans identities, whereas I argue that the revised opinion pulls back into pretending that normative stereotypes about gender presentation are actually just statistical stereotypes about the habits of men and women. The rst ruling explicitly defended the idea that transsexuals, qua transsexuals, are covered under Title VII. This defense was, as I explain above, subsequently downgraded into the idea that transsexual is a mere label for a cause of gender nonconformity but that it is not much different than being a man who happens to have a dress on. The paragraph that was later expurgated from Smith is worth quoting at length:
I gathered this impression from conversation with University of Michigan law professor Bruce Frier on April 1, 2005. Frier was chair of the provosts TBLG Task Force. The plaintiff s attorney, Randi Barnabee, shared this same conclusion with me in conversation on May 27, 2005. If the Smith case were to go up to the Supreme Court and be overruled, of course, that would stop this recent expansion of rights dead in its tracks. Because it is also a statutory law controlled by Congress, Congress could amend Title VII to specify what it thinks sex stereotyping means, and that could include directing the courts (even the Supreme Court) to keep trans, gay, lesbian, and bisexual people out of it entirely.
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Even if Smith had alleged discrimination based only on his selfidentication as a transsexualas opposed to his specic appearance and behaviorthis claim too is actionable pursuant to Title VII. By denition, transsexuals are individuals who fail to conform to stereotypes about how those assigned a particular sex at birth should act, dress, and self-identify. Ergo, identication as a transsexual is the statement or admission that one wishes to be the opposite sex or does not relate to ones birth sex. Such an admissionfor instance the admission by a man that he self-identies as a woman and/or that he wishes to be a womanitself violates the prevalent sex stereotype that a man should perceive himself as a man. Discrimination based on transsexualism is rooted in the insistence that sex (organs) and gender (social classication of a person as belonging to one sex or the other) coincide. This is the very essence of sex stereotyping (Smith 2004a, 15).12 Instead of an explicit signal of inclusion of trans people as trans people, the second, edited version of the opinion published in August has the following language: Sex stereotyping based on a persons gender nonconforming behavior is impermissible sex discrimination, irrespective of the cause of that behavior; a label, such as transsexual, is not fatal to a sex discrimination claim (Smith 2004b, 575). This framing is a response to the lower courts contention that Smith is really just a transsexual, not a victim of sex stereotypingessentially, that he belongs in a different identity group than the one sex is meant to protect (namely, women, the putative beneciaries of sex discrimination law). In overruling the lower court, the appeals court redescribes that differently gendered person as the man who acts in ways typically associated with women (protected under a straightforward statistical stereotyping view), not someone engaged in the different activity of being a transsexual (or in some instances, a homosexual or transvestite) (a legal subject not included in the statute) (2004b, 574). The trial judges opinion depends on a clear delineation between social groups: gays, lesbians, and bisexuals; transsexuals; and men and women (the only ones the statute should cover on the basis of sex). Paradoxically, that holding is also the one that acknowledges transsexual group identity as unique, while the sympathetic appellate opinion (revised version) must renounce the concept of a social group or identity as a mere label. The

12 One can still nd the June opinion in legal databases like Lexis, with the notation withdrawn by publisher because the August opinion is now the nal one.

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August opinion clears the way for the application of sex-stereotyping theory to all gender nonconformists, gay and straight, trans or nontrans, but in something more like the statistical sense. While feminists may certainly celebrate the breakdown of categories separating men and women from transgenders and gay, lesbian, and bisexual people, we must still examine how twists in the meaning of the concept of sex stereotyping bring about these coalitions in the law. It is not simply that these barriers between groups have been broken down conceptually; rather, it is that one concept, the sex stereotype, explains them all. But it does so in a way that cannot be straightforwardly correct. It cannot really be correct because we know that normative stereotypes about gender are still closely held and often validated in court. Indeed, many feminists would also say that some normative (though different) content for gender must remain. Followed to its completion, the Smith logic would say that employers cannot require any gendered look or behavior of any kind from employees no matter what their biological sex is understood to be. Those men who are statistically unusual in wanting to wear dresses must be allowed to do so (because remember, thats what we are supposed to think trans identity is). But there are many other cases afrming enforcement of normative gender stereotypes under Title VII. As I noted, courts have consistently upheld gender-specic grooming requirements, such as makeup for women (but banned for men; Jespersen v. Harrahs 2006) and short haircuts (Willingham v. Macon Telegraph 1975) and neckties in court (Devine v. Lonschein 1985) for men. Darlene Jespersen, a bartender for over two decades at Harrahs casino, was red for not wanting to comply with Harrahs Personal Best policy, which demanded that she wear pantyhose, full face makeup, and colored nail polish and that she wear her hair down and teased, curled, or styled ( Jespersen v. Harrahs 2006, 4123).13 As long as the requirements do not burden one sex more than the other, employers can require everyone to appear as the professional version of maleness or femaleness, matched respectively with current biological sex. According to the Ninth Circuit panel in Jespersen, Grooming standards that appropriately differentiate between the genders are not facially discriminatory (4127). The court refused to speculate about the added costs for women in the purchase and application of makeup or in the time spent teasing, curling, and styling their hair (as compared to men, who only
The Lambda Legal Defense and Education Fund represented Jespersen, though neither her sexual orientation or gender identication is mentioned on the Lambda Web site. A photo shows an unadorned, perfectly nice-looking fortyish white woman with shoulder-length brown hair. See http://www.lambdalegal.org/cgi-bin/iowa/cases/record?recordp191.
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had to keep their hair trimmed above the collar and were actually prohibited from applying any makeup or nail color; Jespersen v. Harrahs 2006, 4129). Across the country and for several decades, courts have rejected the idea that these requirements amount to illegal sex discrimination. Under Smith-type reasoning, however, if a nontrans man wants to wear a dress and makeup to work then he ought to be protected in doing so or at least be able to resist wearing a tie and wear something comfortably androgynous. The grooming requirements cases, because they afrm employers rights to dress their employees in a gendered way that maps biological sex, are in direct conict with the reasoning of Smith. Why cant Jespersen say she should have the right to look less classically feminine and still keep her job, when Smith got to look less masculine and keep his? As Robert Post explains, So long as gender conventions remain salient within our culture, Title VII must be understood as marking a frontier between those gender conventions subject to legal transformation and those left untouched or actually reproduced within the law (Post 2001, 39). The Jespersen court was perfectly aware of this tension. If we were [to hold that an objection to a makeup rule for women only could give rise to a claim of sex stereotyping under Title VII], the majority opinion observes, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual nds personally offensive, or in conict with his or her own self-image, can create a triable issue of sex discrimination ( Jespersen v. Harrahs 2006, 4132). The Ninth Circuit was unwilling to proclaim the strong liberation view of gendered appearance (and, since it is a different jurisdiction, did not even cite the Smith case or any other transgender cases from any jurisdiction). The opinion suggests that gender nonconformists may still press cases for sexual harassment, that employees may not be forced to wear uniforms that are too sexually provocative (and are not related to the job), and that conforming to the gendered image should not impede the worker from doing her job (4133). The Jespersen makeup and hairstyle requirements for women, however, are understood to be just ordinary, reasonable requirements without any implications for sex discrimination law. Thus it looks like it is illegal sex stereotyping to re a trans employee who is transitioning (with all the violations of traditional gender appearances that may come up along the way, especially before passing is possible), but it is not generally illegal to require women (presumably overwhelmingly nontrans women) to wear some makeup at work and to seem feminine in a nonextreme way, whatever that means. It would seem that maybe we are not going to be in the same jurisprudential boat after all.

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Title VII sex discrimination law also sometimes permits employers to choose their employees based on sex, using a loophole called the bona de occupational qualication, or BFOQ. If it is absolutely necessary to have women as employees, say at a strip club, then the business may legally refuse to hire men in those jobs. This aspect of Title VII also shows that our antidiscrimination regime is not interested in totally transforming gender but rather prefers to interact with gender in a selective way, altering some of its meanings in some contexts (Post et al. 2001). We happily ban stereotyping that is understood to be old-fashioned, such as dictating professional or family roles, but we balk at undoing gender in ways that would completely transform sexuality and privacy. The Smith case squeezed through by looking like the former while avoiding the implications of the latter. We could run strip clubs as though gender does not matter for sexual attraction, but most people would nd such a new world uninviting. As I noted in my opening discussion, other BFOQ cases have upheld single-gender hiring rules where the job involved going into a changing room or otherwise seeing patrons of the opposite sex naked (Kapczynski 2003). Many people also prefer privacy in these contexts, and it is not because they nd members of the opposite sex contemptible, though it may be that women would regard men as dangerous. Feminist legal theorists are stuck in this world of gendered meanings, too, and though we may disagree with where judges draw the jurisprudential lines of Title VII, few of us would like to obliterate all rules about gender conventions.

Whats wrong with judicial use of the concept of stereotypes?

If there is something out there like proper recognition in the law for transgender people and sexual minorities within legal categories, then we must measure that positive vision against the available forms of recognition. We see here that recognition is already governed by a dominant account of sex stereotyping that demands that several identity formations be lumped together, and that is on perilous ground conceptually. It will not be surprising, then, that I argue in this section that sex discrimination doctrine has been confused for a long time. I cannot call it legal obscurantism because there is no reason to think that judges are deliberately scrambling concepts for political gain. Rather, I would say it is a dening characteristic of gender in the law that it always seems obviously and easily explained in simple language like stereotyping, and thus contradictory cases can coexist because gender is itself deeply contradictory. At rst it seems easy to accept that being a man or a woman has nothing to do

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with capabilities to perform most jobs (as the phrase now slides off the tongues of most conservatives), but then the roles and duties assigned to different sexes because of pregnancy, childbirth, and parenting seem equally obvious, benign, and unrelated to structural inequality to many people, even (as many feminist legal theorists have pointed out) Supreme Court judges (Williams 1997). This contradiction enables the Smith jurisprudence in taking a wide swath of what gender is for most people most notably, being in one gender over a lifetime that is visible and meaningful in community with othersand making gendered appearance as illegal to enforce as a pernicious false stereotype, managing it as if it were a statistical stereotype that simply defends the exceptional needs of men who happen to start looking feminine one day and pretending that it has no normative stereotyping content that matters at all.

A critical genealogy of the sex stereotype in American law

In the classic cases that established Fourteenth Amendment equal protection against sex-based classications, states were not allowed to presume that men as a class would be preferable to women as a class in the role of executor of a deceased persons estate (stereotype: men are more likely to have the training and capacities to handle being an executor), that husbands as a class are not dependent on their wives for support while wives as a class are dependent (stereotype: men as wage earners and women as housewives), and that women would not thrive in a harsh military school environment (stereotype: women as cooperative learners who thrive under nurturance and men as future citizen-soldiers who thrive under adversity).14 In all these instances, it was generally true that most women lagged behind most men in attaining the kind of education and public role experience associated with being an executor of an estate, that wifely economic dependence was much more common than the reverse, and that very few women expressed interest in or succeeded in the military school environment. So it is not that law asserts the empirical inaccuracy of the stereotype in general but that the stereotype is declared off-limits for reasoning about what any particular woman deserves, in spite of its truth as a generalization. In one well-known Title VII discrimination case, Los Angeles Department of Water and Power v. Manhart (1978), involving a requirement
14 I have switched here from Title VII cases to equal protection cases, but the account of stereotyping is shared between them. The Smith court, too, assumes that the discussion of stereotyping in one area is the same as in the other.

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that women pay more into a pension fund because they would generally live longer and cost more as retirees, the Supreme Court used the concept of a stereotype to describe the actuarial reality of womens longer life spans. It was unjust to require any particular woman to pay more into the system because of the (admittedly correct) empirical generalization that women on average live longer than men. What happens when judges call the assertion that women live longer than men a stereotype (a statistical one, for Appiah)? The judges ruling analogizes one kind of gendered reality with other rejected ones, such as womens irrationality and placement within the home. As Jonathan Simon explains, this case stretches [the conception of invidious stereotypes] in order to t actuarial representation into the mold of devaluing moral attributions (blacks are violent, Mexicans are lazy, Jews are cheap, women live longer) (1988, 778). By setting up actuarial projections as producing the same kind of harm to individuals that invidious (what Appiah would call false) stereotypes cause, the Supreme Court performs a classic move in adjudication: analogizing a new legal problem to an older one with a more fully elaborated norm behind it in order to justify the application of the same solution that the older norm offers. Simon worries, however, that stretching actuarial realities into invidious stereotypes will demoralizetreat as morally neutraldifferences that carry highly-charged political and social signicance (such as race and gender) and thereby threaten to obscure the historical effects of domination (1988, 776). The stakes of the movement from trans discrimination to sex discrimination are similar because the law is repeating that same move of bringing in new content and rendering it similar to other, already known discriminations. Compare this kind of actuarial reality to the facts of another well-known Title VII case decided in 1971, in which an employer refused to hire women with school-age children because of the belief that their duties as caregivers would interfere with their abilities to devote their full attention to their careers (Phillips v. Martin Marietta 1971). The employer did not mind hiring men with young children. The Supreme Court ruled the practice discriminatory on the basis of sex-plus (sex discrimination applied to a subset of the protected category, namely women with the plus factor of having young children). But of course the employer was correct in his reading of gendered labor in the homethere was then and still is an unequal sharing of child care in heterosexual couples that amounts to a second shift for working women (Hochschild 1989). Are the complex realities of gendered labor in family life the same thing as the fact that women outlive men? What is lost in collapsing them jurisprudentially as stereotypes, even when stereotype means that which employers know

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about the world but cannot use as the basis for disadvantaging any particular individual? The individualistic bent of the statistical stereotype assumes structural inequalities away by separating an imagined litigant from everyone else in her group. There is no end to that reasoningif it were applied hypothetically to each individual in the group seriatim, one could go on and on until no woman lived longer than the male average and no wife did more home labor than her husband. The idea of stereotyping as a form of oppression could be powerful as a condemnation of the social norms and practices that produced the background situation in the rst place, but in the context of judicial reasoning about a particular case it always turns back to the exceptionalism of the individual litigant who was discriminated against. Thus it loses its power for condemnationWhat you, employer, think of women is deplorable, and you ought not use your powers to advance that viewin its turn to individualized, inaccurate reasoningBut you, employer, cannot assume that what may be true of women generally is true of this one in particular. So even if women generally still occupy subordinate roles at home, an employer cannot presume that this particular working mother will be any more busy, distracted, or overburdened than a working father. This strategy of conceding the generality while defending the particular is a classic lawyerly move and a favorite of liberal judges who want to establish a helpful ruling in a particular case without having to refute the empirical basis for the stereotype or, critically, having to reframe it. Justice Ruth Bader Ginsburgs majority opinion in United States v. Virginia (1996), an equal protection case ruling that if any young women could succeed under the adversative method of the Virginia Military Institute then the school had to open its doors to them, has this avor. Cadets live in spartan conditions and during their rst year exist as rats subject to humiliation and bonding rituals on the rat line. Physically and psychologically exceptional female applicants were absorbed into the hypermasculine and militaristic environment, even as the Supreme Court acknowledged that most women would not be suited to such a college learning environment. Virginia is considered the strongest equal protection sex discrimination case yet because its doctrinal interpretation of the relevant standard defends exceptional women against generalizations that would be valid as applied to most women. There is no leverage for redescribing gender roles or concepts like weakness, adversity, and citizen-soldier, however. And yet, where real or inherent differences between men and women have to do with pregnancy, childbirth, or the capacity to become pregnant, the Supreme Courts equal

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protection jurisprudence permits differential treatment and fails to interrogate whether these differences also owe their meaning to cultural constructions. In its most recent ruling on the distinction between a real sex difference (which laws may permissibly take into account) and a stereotype (which laws may not rely upon), the Court held that regulations requiring extra steps for unwed fathers to legitimate biological children born overseas were constitutional because birth mothers always have a point of contact with a child at the time of birth that fathers may lack (Nguyen v. INS 2001). Connection to the citizen-parent establishes the right to citizenship, and thus the regulations can treat fathers and mothers differently based on the different potential for that parent-child relationship. No matter that in the facts of the case the boys father had actually raised him in the United States after turmoil in Vietnam separated him from his mother, who was never located; the boy was ordered deported to Vietnam, a country he had not grown up in and whose language he did not even speak. In his opinion for the majority, Justice Anthony Kennedy argues that the greater burdens on fathers to claim paternity address an undeniable difference in the circumstance of the parents at the time a child is born . . . [that] does not result from some stereotype, dened as a frame of mind resulting from irrational or uncritical analysis (Nguyen v. INS 2001, 68). He continues, There is nothing irrational or improper in the recognition that at the moment of birtha critical event in the statutory scheme and in the whole tradition of citizenship lawthe mothers knowledge of the child and the fact of parenthood have been established in a way not guaranteed in the case of the unwed father. This is not a stereotype. Of course mothers are present at the birth of their children, and fathers may or may not be present. But the legal rules about acquiring citizenship are there to make sure that a certain relationship to the United States is possible in the childs life (to prevent fraudulent claims to citizenship). The simple event of birth cannot carry the full weight of the relationship unless one reads much more into the mother-child relationship versus the father-child relationship, something that is accomplished only by assuming that mothers are naturally very different parents than fathers. What counts as a sex stereotype in the rst place has always been determined by preconceived ideas about what is socially or biologically determined. Moreover, we can see how normative stereotyping (here, mothering and what it is and what it should be) is particularly susceptible to being used politically by judges to evade the criticism that they are complicit in sex stereotyping (by reframing a normative stereotype as an ob-

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servation of biological fact). In the Title VII context it is illegal (normative and probably also statistical) stereotyping to assume that a working mother will be a less reliable employee than a working father because of the meanings and gendered practices of motherhood in our culture. But the event of birth was enough in Nguyen to constitute a real difference between mothers and fathers different abilities to convey U.S.-citizenship readiness to their children born overseas, a transmission that would presumably take place through later parenting, not through the umbilical cord. Both cases are about parenting and what it means for women and men, but they illustrate how slippery and full of unstated content the concept of a stereotype can be, especially when what is at stake are deeply gendered practices and positions like mothering, not simple assertions of sex-based capacities or incapacities. Rather than interrogating distinctions between the biological and the social, different versions of stereotyping simply justify them (Nguyen) or evade them (Phillips), erratically at best. At the same time, under Title VII jurisprudence the usefulness of Price Waterhouse and its progeny, the Smith decision, depends on characterizing any gendered norm or practice as a stereotype. So when I saw that the Smith court was slipping back and forth between a normative stereotyping account of gender and a statistical one in a way that relied on misdescription and pretense, I was discouraged but unsurprised, given this recent history as applied to nontrans women.

Conclusion

This area of trans jurisprudence is unique in its high level of lawyerly opportunism because securing any trans rights at all through litigation has been extremely difcult. An amendment, written by Senator Jesse Helms, to the Americans with Disabilities Act (ADA; 1990) explicitly bans transsexuals from coverage, so it has not been feasible to pursue a legal strategy of arguing that trans employees have gender identity disorder and need accommodations through their transition.15 Given the weight of medicalization behind trans identity, this option would have been much easier to get through the courts, albeit highly problematic for all the

15 The section bans coverage for transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders, homosexuality, bisexuality, compulsive gambling, pyromania, or kleptomania, and substance abuse disorders resulting from current use of illegal drugs (Americans with Disabilities Act 1990). State disability rights laws without such exclusions have been the basis for extensions of trans rights (Kirkland 2003), however.

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reasons that both medicalizing and disabling trans people and use of the ADA are problematic (Stone 1991; OBrien 2001; Krieger 2003). Here I am merely pointing to a closed-off track that lawyers never took but that would have governed trans identity very differently than the Smith route did; I am not saying the alternative track would have been a great idea. In practical terms, that left lawyers with Title VII, at least at the national level.16 One has to argue that the workplace discrimination happened because of sex. The Price Waterhouse decision dictated that the trans issue be framed in terms of stereotypes because that precedent had opened the door to sex meaning something more than just being a man or being a woman and being subjected to statistical or false stereotyping about ones abilities (women with kids will not be able to handle this job). But the stereotyping concept is similar to the concept of diversity in afrmative action; the latter is so prominent because it is the only spot of light in an otherwise hostile judicial environment in which the Supreme Court has rejected nearly all other grounds for afrmative action, such as promoting racial balance or redistribution (Gratz v. Bollinger 2003; Grutter v. Bollinger 2003). Other ideasthat trans people deserve protection from bigotry and hatred, or that it would be good for the country to redistribute opportunities to racial minorities to make up for centuries of discriminationare very hard to put into a legal brief because the cases directly arguing those stronger positions have been lost (in the case of trans) or the Supreme Court has ruled that those reasons would not count (in the case of racial preferences). Lawyers work pragmatically with the tools available, whether or not they fully describe what trans people need to construct a dignied individuality, for example. But the sex-stereotyping theory was a winner for Smith. Expanding the meaning of sex functioned to provide the University of Michigan with a less politically visible means of providing for trans rights as well as illustrating one way that use of law often amounts to a lack of democratic persuasion or accountability.17
16 Bringing Fourteenth Amendment claims of violations of equal protection is also an option that would help trans people gain equal treatment by public actors like state governments. Though that would be very helpful, the Supreme Court has basically gotten out of the game of expanding rights through equal protection theory (with the interesting exception of gay rights under Romer v. Evans [1996]), so it is unlikely to be a very attractive option for litigators. Local ordinance campaigns have been successful in sympathetic areas of the country. The Transgender Law and Policy Institute collects all protrans legislation in jurisdictions across the country (http://www.transgenderlaw.org). 17 Frier, chair of the original TBLG Task Force, argued before the University of Michigan Regents on March 17, 2005, that since the word sex does not bear this meaning [of trans

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Securing rights through litigation is denitely a process of taking what is available, being creative, and hoping for the best. I have endeavored to explain just what we are taking and what the best and worst might look like. We simply cannot know what to make of the Smith case without tracking the political commitments of the sex-stereotyping idea through a wide range of gender discrimination cases, and then we must wait and watch for a while. How will my criticisms of the way the stereotyping idea actually works in the law apply to this new transgender jurisprudence as it evolves? The question is not What can sex discrimination law do for trans plaintiffs? (as it might have seemed at rst) but, rather, What can trans plaintiffs do for sex discrimination law? If some version of the strong liberation view takes hold in Title VII sex discrimination law and transforms workplace rules about mothering, fathering, dress, undressing in front of strangers of the opposite sex, and so on, we will look back and mark this moment as the turning point. But sex discrimination law may continue to interact selectively with apparatuses of gender despite the Smith victory, as I predict under the sociopolitical context view. It is encouraging to see employer-side labor law rms in Michigan publishing bulletins about the Smith case (with titles like Kind of a Drag: Federal Court Expands Protection for Sex Discrimination), urging businesses to take seriously the idea that traditional approaches to this sort of situation can now subject an employer to signicant potential liability (Pacic 2005). I can pretty well imagine what the traditional approaches to this sort of situation were, and things are certainly going to look up for trans employees in the Sixth Circuit. But the legal problems of nontrans people who want to resist gendered norms and expectations at work in more ordinary ways (around issues like grooming requirements, parenting responsibilities, etc.) are not part of this type of situation, and there is no reason to think the Smith case will have the wide reverberations it seems capable of setting off. This is not simple disappointment in one case; rather, it is symptomatic of a primary mode of gender regulation in the law in which the concept of sex stereotyping simultaneously extends rights and also narrows and mischaracterizes them.
inclusion] in ordinary speech, virtually all readers would not immediately understand it in this way. The regents could have voted to add a freestanding clause to the bylaws protecting against discrimination based on gender identity and gender expression. But several Democratic regents were up for reelection on the November 2004 ballot and perhaps did not want to be seen as pushing for transgender rights at the same time as the antigay marriage Proposition 2 was headed to victory. No democratically elected ofcial stood up and defended trans rights, in other words, and the rights expansion proceeded without becoming an election-year issue.

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Even within this narrowed legal context, the Smith jurisprudence goes out of its way to avoid the idea that the real problem many trans people have is that nontrans people nd them threatening, horrifying, aesthetically shocking, and deviant. An employer res a trans person as a trans person, not as a man who wants to wear womens clothing (though those men would be red, too, under traditional approaches). We ought to always focus our antidiscrimination laws on the hatred and bigotry of the people who would discriminate if the law did not force them to refrain. If the real trouble is trans hatred, this new jurisprudence may fail to recognize it. Being able to change from being gendered as male to being gendered as female is important if one is transgender or transsexual but not really so important otherwise. Therefore banning the stereotype that one should not change from one gender to another is really a juridical service to trans people dressed up in reigning legal language. That is why there is confusion about whether it can stand with Jespersen-type grooming requirements, which are understood to be about regulating nontrans men and women in politically uncontroversial ways (in certain jobs, men have to wear ties, and women makeup). The Smith court had to insist that it was merely banning oppressive stereotyping rather than constructing a new group benet. But in fact that new group benet is required by justice on independent grounds: relieving the oppression, subordination, exclusion, and torment of trans people. It would be much better to live in a world in which defending trans people per se were feasible and we just had to gure out all the complexities of securing legal protection for an identity that we all agree is deserving and ought to be part of a dignied life. Feminists and queer theorists cannot forget that we are hardly clear ourselves on which aspects of gender and sexuality ought to be overturned and which ought to stay. It may be enough to keep employers from ring gender nonconformists in one area of the law while we go on forming relationships and communities that (may or may not) participate in overturning or transforming gendered presentations of the self. At least some people will still have their jobs. But now we know that eliding the importance of normative stereotypes is also part of laws gender regulation, and so we simply cannot do the same thing ourselves without acknowledging its complexity. If one believes that all the apparatuses of gender participate in patriarchal injustice, then it would be wonderful for the Smith decision to colonize all of sex discrimination law, making any aspect of gendered life into an illegal normative stereotype. But perhaps some norms of gendered appearing-in-the-world as well as moments and places of same-sex privacy are deeply meaningful cultural practices reected in

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the workplace rather than oppressive stereotypes, and thus simply banning them does not seem right. They are not always rooted in the subordination of the other, that is, and we want to take their meanings and contexts one by one in deciding whether they are. Perhaps the next few decades of legal wrangling will be able to make the concept of the sex stereotype into something that investigates and subtly separates gendered meanings from gendered oppressions case by case. One day it may no longer work in the law as I have argued it does now (at various moments helping judges to crudely refuse to do that work and resort to biological difference, pretend all that stuff is just statistical stereotyping, or refuse to apply the analysis at all for highly regulated gender requirements like Harrahs Personal Best policy). I certainly hope so, though that would be a stunning surprise. Womens Studies and Political Science University of Michigan

References

Americans with Disabilities Act. 1990. 42 U.S.C.A., sec. 12211. Appiah, K. Anthony. 2001. Stereotypes and the Shaping of Identity. Response to Post in Post 2001, 5571. Backus v. Baptist Medical Center. 1981. 510 F. Supp. 1191 (E.D. Ark.). Barnabee, Randi. 2004. Interview on Gender Talk, June 14. Web Radio. http:// www.gendertalk.com/real/450/gt465.shtml. Barnes v. City of Cincinnati. 2005. 401 F.3d 729 (6th Cir.). Brown, Wendy. 1995. States of Injury: Power and Freedom in Late Modernity. Princeton, NJ: Princeton University Press. Bumiller, Kristin. 1988. The Civil Rights Society: The Social Construction of Victims. Baltimore: Johns Hopkins University Press. Butler, Judith. 2004. Undoing Gender. Boca Raton, FL: Routledge. Case, Mary Ann. 1995. Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence. Yale Law Journal 105(1):1105. Civil Rights Act of 1964. 1964. 42 U.S.C., secs. 2000e2000e-17 (2000). Civil Rights Act of 1991. 1991. Public Law 102-166, 105 Stat. 1071. Currah, Paisley, and Shannon Minter. 2000. Unprincipled Exclusions: The Struggle to Achieve Judicial and Legislative Equality for Transgender People. William and Mary Journal of Women and Law 7(1):3764. Devine v. Lonschein. 1985. 621 F. Supp. 894 (S.D.N.Y.). Feldblum, Chai R. 2000. Gay People, Trans People, Women: Is It All about Gender? New York Law School Journal of Human Rights 17:62366.

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