Erasing Boundaries: Masculinities, Sexual Minorities, and Employment Discrimination

Abstract

This article analyzes the application of employment discrimination law to sexual minorities -- lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities. While the article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of and gender, a view that identifies men and women as polar opposites, and that sees gender as naturally flowing from biological sex. Without courts' understanding that our current binary concept of gender may be socially constructed and artificially rigid rather than a natural result of biology, even new legislation may fail to protect workers it seeks to protect. The article demonstrates that research on masculinities can help courts understand why their decisions are often based on a misunderstanding of sexual minorities and of the motivations of those who discriminate against them in the workplace. It concludes that even in the absence of new legislation, Title VII's discrimination provision should protect sexual minorities from discrimination, and should provide reasonable accommodation to allow sexual minorities to live and work with dignity and security. If courts understand sexual minorities and the reasons why discrimination occurs, Title VII's prohibition of discrimination because of sex should be sufficient to grant sexual minorities workplace rights.