Protecting the Gender Nonconformist from the Gender Police - Why the Harassment of Gays and Other Gender Nonconformists Is a Form of Sex Discrimination in Light of the Supreme Court's Decision in Oncale v. Sundowner
![handle is hein.journals/nmlr29 and id is 95 raw text is: PROTECTING THE GENDER NONCONFORMIST
FROM THE GENDER POLICE-WHY THE
HARASSMENT OF GAYS AND OTHER GENDER
NONCONFORMISTS IS A FORM OF SEX
DISCRIMINATION IN LIGHT OF THE SUPREME
COURT'S DECISION IN ONCALE V. SUNDOWNER
TONI LESTER*
INTRODUCTION-THE SILENCE SURROUNDING HARASSMENT BASED
ON HOMOPHOBIA
Traditionally, people who are harassed at work because they are gay1 have found
that they have not been granted the same kind of legal protections that their
heterosexual counterparts have received.2 This is true despite the fact that the sexual
harassment of gays is motivated by homophobia, which in turn is motivated in large
part by misogyny. Since misogyny in all its many manifestations is one of the things
that Title VUI's prohibition against sex discrimination is supposed to attack,3 the
failure of the courts to recognize that harassment against gays is a kind of sex
discrimination is at best misguided and at worst very dangerous. This lack of
* Affiliated Research Scholar Wellesley Centers for Women; former Visiting Law Scholar, Institute for
Research on Women and Gender, Stanford University; Associate Professor of Law, and Johnson Research Chair,
Babson College; B.S., J.D., Georgetown University.
1. I use the term gay hem broadly to mean those who identify themselves as homosexual men, lesbians,
bisexuals, and transsexuals. I recognize that the term is the subject of great debate today, however. I will talk about
the debate and explain my use of the term in greater detail in Part L
2. See Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1084-86 (7th Cir. 1984) (stating that Title VII does
not protect transsexuals, homosexuals or transvestites); Desantis v. Pacific Tel. & Tel. Co., 608 F.2d 327, 329-30
(9th Cir. 1979) (stating that 'Title VIIs prohibition of sex discrimination... should not be judicially extended
to include sexual preference); see also Regina L Stone-Harris, Same-Sex Harassment-The Next Step in the
Evolution of Sexual Harassment Law Under Title VII, 28 ST. MARY'S LJ. 269, 289 (1996) (stating that in dealing
with hostile or abusive work environment claims brought by a male victim against a male offender who believed
the victim was homosexual, courts have 'ule[d] against the plaintiff, with the author finding it notable... how
closely the offensive conduct [in these cases] parallels other conduct which courts have found to be
discriminatory).
3. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (An employer who objects to
aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible
catch 22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this
bind.); Meritor v. Vinson, 477 U.S. 57, 67 (1986) (Sexual harassment which creates a hostile or offensive
environment for members of one sex is every bit the arbitrary barier to sexual equality at the workplace that racial
harassment is to racial equality. (citing Henson v. Dundee, 682 F.2d 897, 902 (1 th Cir. 1982))); Ellison v. Brady,
924 F.2d 872, 881 (9th Cir. 1991) (Congress designed Title VII to prevent the perpetuation of stereotypes and a
sense of degradation which serve to close or discourage employment opportunities for women. (citing Andrews
v. Philadelphia, 895 F.2d 1469, 1483 (3d Cir. 1990))); Barnes v. Costle, 561 F.2d 983, 987 (D.C. Cir. 1977)
(noting that [n]umerous studies have shown that women are placed in the less challenging, the less responsible
and the less remunerative positions on the basis of their sex alone, and finding such blatantly disparate treatment
: .. particularly objectionable in view of the fact that Title VII has specifically prohibited sex discrimination since
its enactment in 1964.); Tones v. Nat'l Precision Blanking, 943 F. Supp. 952, 954 (N.D. I. 1996) (stating that
the principal purpose of including the term 'sex' in the Act was to 'do some good for the minority sex.' (citing
110 CONG. REC. 2577 (1964))).
Some have argued that Title VII's prohibition against sex discrimination was the result of a fluke, in which
Congressman Howard Smith of Virginia hoped to stymie the bill's passage by adding the word, sex to the bill,
never expecting it to be approved. See CHARLES & BARBARA WHALEN, THE LONGEST DEBATE-A LEGISLATIVE
HISTORY OF THE CIVIL RIGHTS Acr 115-118 (1985).](ViewImageLocal?handle=hein.journals/nmlr29&div=8&collection=&method=preview&ext=.png&size=3)
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