Table Of ContentGender Nonconformity and the Law
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Gender
Nonconformity
and the Law
KIMBERLY A. YURACKO
New Haven and London
For Michael, Sacha, and Katja
Copyright © 2016 by Yale University.
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Contents
Acknowledgments vii
Introduction 1
one. The Case Law: Expanding Protection 12
two. Neutrality 28
three. Antisubordination 54
four. Status 89
five. Perfectionism 111
six. Expressive Freedom: A Short Discussion of a
Value That Is Not There 137
seven. The Race Paradox 150
Conclusion 170
Notes 175
Index 239
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Acknowledgments
This book has been a long time in the making. It is the
product of my thinking and writing about sex discrimination
in employment over the past decade. It has been a very inter-
esting journey, as so much has changed in the law over that
time. Indeed, the case law and the social opinions it reflects
have in many regards changed much faster than I ever pre-
dicted. Given the length of my journey toward completion of
this book, I have many people to thank. Mark Kelman has
been a teacher, mentor, and friend to me for over twenty years
now. He is the best reader I have ever encountered. I am
deeply indebted to him not only for improving this work but
for actually sparking my interest so many years ago in study-
ing discrimination and pursuing an academic path, a path that
has been richly engaging and rewarding for me ever since. I
also owe a great debt to the late Susan Moller Okin, who, like
Mark Kelman, played a formative role in my intellectual de-
velopment and my career path.
vii
AckNowLedGmeNts
I have benefited from comments and suggestions on
many parts of this manuscript from Ron Allen, Michael Barsa,
Cynthia Bowman, David Dana, Shari Diamond, and Andrew
Koppelman. I am grateful for the time they have invested in
this work and for their encouragement. I would also like to
thank Melissa Goldman for her outstanding and careful re-
search support, as well as my library liaisons Marcia Lehr and
Jesse Bowman. Finally, I am grateful for the institutional sup-
port I have received while writing this book from Dean Dan
Rodriguez and the Northwestern Summer Research Fund, as
well as for the generous support I have received from the Judd
and Mary Morris Leighton endowed chair.
My greatest debt of gratitude goes to my husband,
Michael Barsa, and our children, Sacha and Katja. Their
creativity, playfulness, and joy are like sparks of magic that fill
my days with fun and laughter. It is for them that I am most
extraordinarily grateful.
viii
Introduction
the Aggressive woman: Ann is a senior manager at a large ac-
counting firm. Ann works hard. She is successful at winning
new contracts for the firm and at advising clients. Yet when she
is considered for promotion, she is denied admittance to the
partnership. Some partners find her too aggressive and unla-
dylike. To improve her chance of promotion the following
year, she is advised to dress more femininely, wear makeup and
jewelry, and have her hair styled. Ann sues for sex discrimina-
tion. She wins.1
the effeminate man: Antonio works as a food server at a
restaurant chain. For several years, he is subjected to a steady
stream of insults and name-calling from some of his male
coworkers. They refer to him using female pronouns and
mock him for carrying his tray like a woman. Antonio com-
plains about the harassment to no avail. He sues for sex dis-
crimination. He wins.2
the transsexual: Philecia is a transsexual police officer who
has been diagnosed with gender identity disorder. As part of
her transition from male to female, Philecia begins living off
duty as a woman. While still presenting as male at work,
Philecia does display some feminine characteristics on the job.
1
