The Thin Pink Line: Policing Gender at Every Corner

Posted in: Civil Rights

A recent editorial in the Tallahassee Democrat reported on, and praised, the students at Leon High School, who elected two women to serve as prom king and queen. The two women had dated for three years and were viewed by their peers perhaps as the most popular couple. The surprising part of this story was that after the story reached over 200,000 people on Facebook, many of the comments were supportive and celebratory, or expressed the simple idea that this was no big deal.

But this story is the exception, as we see uproars across the country to people, rules, and events that challenge conventional gender norms. When students at a California high school tried to elect a lesbian couple as prom king and queen, school officials issued a royal edict that for all-important prom purposes, qualification for “king” or “queen” is defined by sex at birth. Meanwhile, across the country in Harrisburg, Pennsylvania, a girl who showed up in a tuxedo was turned away at the prom door for violating the established dress code that says “girls must wear formal dresses.” And in nearby East Haddam, Connecticut, boys and girls walk in different lines at commencement, with boys dressed in blue, and girls in virginal white carrying flowers (discussed in detail here).

And if all this seems trivial—rules that affect people on only one night in high school—recall the sweeping (and unconstitutional) law passed by North Carolina recently, requiring that transgender individuals only use public bathrooms that align with their birth sex and wiping out the state’s protections against employment discrimination simply to ensure that no LBGT person ever benefited from them (discussed here). Or remember that the state refused to comply with a federal order stating that the bathroom portion of the bill violates Title IX and must be repealed. Or take notice of the efforts of Oklahoma legislators—at the same time they were passing an unconstitutional bill to ban all abortions (vetoed by their governor)—to pass a law that would grant students a right to avoid sharing a bathroom with a transgender student in the name of religious freedom.

Why all the hubbub? People simply cannot care this much about what people wear to a high school dance, whether the prom king is a boy (particularly when the students themselves don’t care), or whether girls are both differentiated and robed in pristine white at a high school graduation.

Now people might care about sharing bathrooms with transgender people, but only because they are misinformed, acting out of a misplaced fear of predation, or bigoted. The transgender bathroom problem has been framed in some circles as one as one of safety—protecting girls and women from bathroom predators. But there is no empirical support for this fear. The number of transgender people is very low—the best estimate, by the Williams Institute, is that a mere .3 percent of the population is transgender. But, more importantly, as Mark Joseph Stern recently pointed out on Slate, there is “overwhelming evidence and professional consensus” that this fear is entirely baseless. (Not to mention that, with or without laws protecting transgender access to bathrooms, predatory men could dress up as women and enter women’s rooms. Or, of course, they could just prey on little boys like Jerry Sandusky and Dennis Hastert, both of whom used all-male locker-rooms as their hunting grounds. But nobody is banning men from using communal restrooms).

There must, then, be some reason underlying all these scandals and stories. The real reason, we suggest, is that transgender people present a direct challenge to the existence of a simple division between the sexes. People who were born with one set of sexual organs but identify and present as members of the opposite sex blur the lines between sexes, and make clear there that the relationship between sex and gender is complicated. It’s hard to maintain sexual inequality when you can’t tell, exactly, what makes someone a boy or a girl, a man or a woman.

And when people are not transgender, but simply refuse to be segregated by sex or to conform to conventional sex norms, society has the same reaction: “make sure we can tell the difference between girls and boys.” When the girls in East Haddam wrote an opinion piece in the local paper, it met with scores of angry comments (now deleted) about how their efforts to change the school’s discrimination graduation robe policy were frivolous or stupid. But that argument cuts both ways. If it doesn’t mean anything, then why don’t the boys and girls wear the same graduation robes? Why wouldn’t the default be that everyone earning the same degree wears the same genderless attire in the ceremony to honor their achievements?

The absurdity of this argument was on full display in the early fight for marriage equality. After the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health (2003), that it was a violation of the state constitution for the state to deny marriage licenses to same-sex couples, the state senate passed a civil union bill—a marriage-equivalent status with a different name—and asked the court for an advisory opinion as to whether its actions had satisfied the judicial mandate. After all, the senate argued, it’s the benefits of the status that matter, not the name. But, in its response, in which it roundly rejected the legislative effort to avoid compliance with the original ruling, the state’s highest court dismissed the argument that this was merely a “squabble over the name to be used.” If the name didn’t matter, the court pointed out, then the senate would never have made such purposeful efforts to circumvent the court’s mandate. It was exactly the name that mattered because marriage of two women or two men would not allow for perpetuation of conventional gender roles.

But while the Massachusetts court was able to see the absurdity of the senate’s argument—and to insist on the full recognition of the substantive right it had declared—we collectively seem unable to do the same.

The law of dress codes under Title VII is perhaps the best example of our collective unwillingness to blur gender lines. Sex-specific dress and grooming codes have been challenged under Title VII, which bans all forms of sex discrimination by employers, since the mid-1970s. Title VII prohibits employment actions “based on sex,” making no exception for specific types of discrimination or “de minimis” inequalities. Yet, there has been a longstanding anomaly in Title VII case law that permits employers to maintain sex-specific dress and grooming codes. In an early case, Willingham v. Macon Telegraph Publishing Company (1975), a federal appellate court upheld a rule requiring men (and only men) to have short hair, while women were permitted to wear theirs long. The court refused to acknowledge the stereotypes reflected in the rule, observing simply that hair length was not immutable, and men could comply with the rule simply enough by just getting a haircut. Other courts have upheld policies requiring men to wear business suits and ties, while requiring women to wear dresses. They have also allowed employers to impose requirements that women wear makeup, while prohibiting men from doing the same thing.

These decisions are fairly described as anomalous because they seem to permit precisely what Title VII forbids: treating employees differently on the basis of sex. (Color-coded graduation robes present the same problem under Title IX, which forbids sex discrimination in education.) And the reasoning courts offer is generally unconvincing, circular, and employs the very same stereotyping that led the employers to adopt the rule in the first place. In Willingham, for example, a case that could easily win a worst-reasoned-opinion contest, the court stated that discrimination laws generally protect people based on immutable characteristics—on the theory that people should not be arbitrarily disadvantaged because of something they can’t change. And hair length, the court noted, is mutable, not immutable. But of course hair is not the alleged basis for discrimination, sex is. And sex cannot easily be changed. Courts in dress code cases resort to platitudes about “good business” and employer latitude to run a business the way it sees fit—the same way high schools cite “tradition” in support of gendered graduation requirements with no pedagogical justification.

But the thrust of anti-discrimination law is to override the decisions of employers that unfairly disadvantage certain groups of workers, regardless in most cases of the impact on business. And to overhaul those educational traditions that operated to the systematic disadvantage of women and girls. We do not, for example, allow employers to hire only white workers even if customers prefer them; nor do we allow employers to fire older workers and replace them with younger ones based on the stereotype that they will be more energetic and efficient. (And we would not allow a high school to line up black students on one side of the arena and white students on the other—or permit them to assign different color gowns by racial group.) But courts actually convince themselves that sex-specific dress and grooming codes are gender neutral as long as they adhere to generally accepted community standards, even if those standards are themselves the product of sex stereotypes.

The dress code law should have changed after the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, in which it held that sex stereotyping is a form of illegal sex discrimination. A logical extension of that ruling might be that sex-specific codes are invalid if they reflect, reinforce, or perpetuate gender stereotypes. But courts continue to cite Willingham and similar cases for the proposition that dress codes are more or less off limits unless they impose an undue burden on one sex.

A less obvious, but still relevant, example of our collective urge to keep gender lines intact is in the battle over marriages by same-sex couples. Although the initial arguments against same-sex marriage had the appearance of real arguments—worry about the impact on children, for example—as opponents began losing the war, the arguments became more desperate and more ridiculous. Near the end, the opponents were making the “accidental procreation” argument—that heterosexual men need marriage in order to tame their wild sexual proclivities and to tie them to the women they impregnate, while gay men and lesbians more naturally find themselves in committed, purposeful relationships and thus do not need marriage. Yes, the argument was as ridiculous as it sounds. But, more importantly, it signaled the desperation opponents felt to maintain the tradition that men marry women, and women marry men.

What all these things have in common is that they are attempts to police the gender line. Maintaining the distinction between men and women wouldn’t be important if, for most everything, they weren’t treated differently. That is, when equality is the rule, then drawing a distinction really doesn’t matter—whether you’re on one side of the gender line or the other (or somewhere in between), you’re treated the same. At home. At school. At work. At church. At the country club. The distinction matters precisely because equality isn’t the rule in many of those places—the gender division reflects a longstanding hierarchy, with men on top. And if we can’t tell who’s who because people challenge gender conventions—by wearing the wrong color, or marrying someone of the wrong gender, or, even worse, trying to become someone of the other gender, chaos ensues.

This kind of behavior is not unique to sex discrimination. Systemic racial oppression depends, too, on a policing of boundaries. The “one drop” rule is the most notorious example. But a key facet of any system of oppression is the ability to clearly distinguish between classes of people. Any impediments to those distinctions, or suggestions that, even if they do exist, they don’t really support the kind of radical distinctions that get drawn in the law or, more generally, society, are dismissed.

This isn’t to say that people who are gay, transgender, or graduating from high school aren’t being independently targeted for discrimination. They are, and their suffering is real. But they are also pawns in a larger game of gender oppression, one that depends on having clearly drawn battle lines.

  • Ted Harvatin

    Unmentioned is that Title IX prevents sex discrimination. The Party of Science conveniently forgets that sex is based upon X and Y chromosomes which don’t change based upon gender “identity”.

    I give the professors a D minus for overlooking the Obama overreach in their haste to score political points masquerading as legal analysis.

    • G.N.M.

      I certainly agree. Men and women should use the restrooms so marked. The president is only attempting further to divide the country with his executive orders.


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    • Joe Paulson

      “Sex” is a complex physical thing that is based on a range of things as shown by brain research etc. … putting aside not everyone is simply XX or XY, it isn’t just a matter of chromosomes.

  • Kelly M. Haggar

    “Now people might care about sharing bathrooms with transgender people, but only because they are misinformed, acting out of a misplaced fear of predation, or bigoted.” Hmmmm. So the profs get to define – – by fiat – – what constitutes a legitimate basis to object to something. Preemptively winning just by definition. Additionally, they also get to decide what other people must consider to be an acceptable risk. As the old saying goes, there’s a lot more philosophers who want to be kings than kings who want to be philosophers.

    • Joe Paulson

      Don’t think professors have such “fiat” power — they state opinions. This includes law professors discussing what is acceptable risks under law when limiting the rights of other people. For instance, what is an acceptable risk regarding firearms since there is a right to keep and bear arms.

      There is misinformation, ignorance and bigotry about things. If people in the past (and some even now) cared about blacks and whites sharing bathrooms and someone said they were misinformed etc., would that be a problem too?

      • Kelly M. Haggar

        Depends of whether the rationale to oppose such an error was pop sociology or a sound understanding of the 14th Ad.

        BTW, the “Pizza Lobby” reply seems to lost in moderation. If you still care I’ll try posting it in smaller portions.

        • Joe Paulson

          The first sentence is valid enough. Yes, professors — who come in all shades (Monday’s entry leans conservative as does Marci Hamilton in various ways) — have opinions though some people have somewhat more cachet then others there. They have no “fiat” power as such.

          • Kelly M. Haggar

            Overshooting final, go around! Marci Hamilton is not the least bit “conservative” in any way, shape, or form.

  • D Lee Gwinn

    You two professors are so smart! Smarter than God himself, apparently! But you are either dishonest, or not really smart enough to see that there are objections to allowing boys in the girl’s bathrooms and dressing rooms and showers (and vice versa) that are based on common sense privacy and protection, and upon the role of the majority to make these decisions in a democratic society; and that objections to the LGBT agenda in general are often based on faith that God knows what is best for us even when we don’t, and that He gives us rules and boundaries upon things like our sexual conduct BECAUSE of his love for us, just like a parent tells their young child not to play in the street out of love and not out of cruelty – and not upon bigotry as you so self-righteously proclaim. It should now be clear to all, as if the AIDS epidemic in this country wasn’t enough, that the argument that what people do sexually doesn’t affect others is a lie by The Father of Lies and those who serve His anti-God, anti-Truth agenda. We are in the midst of a spiritual warfare for the hearts of men, with both current and eternal consequences;
    and unfortunately ultimately for those on the wrong side we are all free to choose which side we are on. As for me and my household, we will serve the Lord, and count your worldly wisdom as utter foolishness.

    • Joe Paulson

      Many churches who believe in God support the viewpoint of the professors here but your alternate view is noted.

  • slybyrd

    So if there is such a small percentage of her-ca-mers, (he/she/it’ers), out there……………..why go to such drastic extremes to force the will of the ‘small percentage’ on the majority who disagree??!? Me thinks their is a larger agenda at foot.

    No matter, as I agree with D Lee Gwinn that God’s law trumphs man’s law………….every time.

    Irrational??!? No more than the screwed up justifications in this article.

    • Joe Paulson

      Equality and rights are not a matter of mere numbers … religious believers who disagree with the majority and push for exemptions (and quite often getting them) being one example. They too are at times deemed to be going to “drastic extremes” though ymmv on the details.

  • D Lee Gwinn

    slybyrd is right. It obviously defies logic for someone to pretend to care about the feelings and privacy of the .003 per cent of males who want to be females, or vice versa, at the expense of the feelings and privacy of the much larger percentage of people who don’t want to be forced to share – and don’t want their children to be forced to share – bathrooms and dressing rooms and showers with members of the opposite sex. On the surface their agenda may either be self-seeking in the sense that they are gay or transgender themselves, or want to be able to do whatever they want and force others to accept and approve of it; or they may be motivated by a desire to feel morally superior to those of us who oppose it. (Ironically, since their morals are actually to call what is immoral good, and to call morals bad). But shouldn’t the public get to determine “public morals” by a majority vote in a democratic society? Versus a vocal minority who take or support procedures to circumvent any votes on these issues – or to strike them down if they occur? The vocal minority argues that the “right” to be transgender – which they must read into the Constitution by inference, or the stacking of inferences – trumps the express constitutional and democratic rights of others, by advocating that acceptance and promotion of that .003 percent of sexual preference or conduct be forced upon everyone. I say “on the surface”, because the real battle is the spiritual battle between Good and Evil that is behind these so-called “political” battles. God loves us and wants what He knows is best for us because He created us (but has given us a choice to accept or reject it), and Satan wants the opposite – to destroy whatever is Godly, and thereby destroy us and our lives both temporal and eternal.

    • Jonno Wade

      (Romans 13:1)–“Let every person be in subjection to the governing authorities. For there is no authority except from God, and those which exist are established by God.”
      So you are to obey Man’s law according to the bible.
      You also like to complain about people making inferences, but I cant seem to find any verses about what to do when someone wants to use a bathroom that doesn’t align with physical sex at birth. Can you point me to that specific verse? Otherwise that’s kind of an “inference” on your part.

      • D Lee Gwinn

        To understand that scripture properly, it also has to be read in conjunction with other scriptures, such as those in Daniel when he refused the edict to pray only to the King and not to God, those in the New Testament when the apostles and others refused orders from the Rulers not to preach the Gospel or to deny their faith, etc., and are commended for being willing to face persecution even to the point of death because of it. Read together, both Jesus in the gospel accounts and Paul in this scripture specifically direct Christians to pay taxes, and negate any broad argument by Christians that they are not to be subject to any earthly authorities because they are ultimately subject to God’s authority.

        Also, I don’t believe the current push by President Obama and others to require that Men who want to use women’s facilities (or vice versa) be permitted to do that are “laws” yet… and everyone including Christians (the people) in a democratic society are actually “the governing authorities”, and have a right to participate in any debate on what the laws should be and who should be elected to represent the people.

        This issue underscores the point that not only should we pray for Godly rulers, as the scriptures direct us to do, but since in America we even have the right to elect our Rulers – or even run for office ourselves – we should vote for and be moral rulers if we want moral rules and decisions. If we elect or are ungodly leaders, it should be no wonder we have immoral rules and decisions!

        Now, your argument APPEARS to be that in order to submit to God we should submit without question to attempts to pass ungodly laws, but that on the other hand we should be free to reject our creation by God as either male or female – and that we must approve of and support others who do.

        Have you been able in your reading of the Bible to find any scriptures that say that God created transgenders, or approves of transgender conduct, or wants us to approve and support it?

        It does say that
        (1) God created us Male and Female (Genesis. 1:27),
        (2) that a man dressing like a woman (and vice versa) is detestable to God, and
        (3) that homosexual conduct is “detestable” (Leviticus 18:22 and 20:13), “shameful”, “unnatural”, “indecent”, and “perverse” (Romans 1:18-27), and “wicked” and an “offense” (I Corinthians 6:9-11)(saying that “homosexual offenders” [among other offenders] will not inherit the kingdom of God.

        I believe it would certainly be illogical to make an inference from these scriptures that God wants Godly people to approve of and promote the LGBT agenda, or be forced to do that.

        • Joe Paulson

          Other Christians view things differently / as to what is “law,” some of “the LGBT agenda” is in this country at least even granting for the sake of argument that the “guidance” here is not an accurate interpretation of what the law requires. It does match the findings of certain lower courts.

  • FairIsFare

    Gender oppression? Here’s the real gender oppression:

    80% of suicide victims are male.
    93% of workplace fatalities are male.
    76% of homicide victims are male.
    60% longer criminal sentences on average for males.
    98% of war death combatants are male.
    87% of alimony and child support goes from men to women.
    Majority of high school dropouts now male. 87% of teachers now women.
    Men are now expelled from college by women on an accusation of sexual assault alone – with due process and presumption of innocence removed from the accused.

    The list of outright atrocities against men goes on and on and on – but you won’t hear of this outcry from the lame stream media or the man hating gynocentrists that supports them. Why? Men are the whipping posts for the female victim class.

  • Kevin O’Reilly

    OK, let’s assume the overwhelming majority of America finally accepts what the two professors espouse.

    What’s next for the LGBT movement?

    Will the LGBT movement be happy with the “no questions asked about gender” shift?

    I suspect not.

    Instead of simply celebrating acceptance by the majority, will they then demand compulsory training from day care through graduate school ( and into the workplace) that embraces every aspect of the LGBT agenda?

    Will they refrain from labeling as “bigots, haters”, etc.( and thus destroying the careers) of those who dispute any part of the agenda?

    In the history of mankind, movements take on an energy and feed on themselves. But every movement, whether it be the Russian Revolution in 1917 or the French Revolution in the late 18th century, has a potential to breed fanatics who brand anyone questioning their movement as counterrevolutionaries.

    There does not appear to be anything stopping the LGBT movement right now.

    But I wish all of you luck in the mid to latter part of this century. I will be long gone by then. But instead of old white, Judeo-Christian dinosaurs like me, you’ll have to face a growing dominance by two forces even you cannot control: An ever more powerful Communist China and the growth of Islam. The last I checked, Islam is very direct about its position on your demands, LGBT. Beijing does not appear to be very friendly to your cause either.

    Compared to the Communist Chinese and Islam, we ancient white Judeo-Christians will look like the best friends you ever had in your childhood.

    • Joe Paulson

      Replace “LGBT” with “blacks” not too long ago.

      Let’s say they integrate schools …what’s next? Will they want to marry whites? … Pass civil rights law? Next thing they will force people to serve them. Will they stop calling us “bigots” for thinking differently than them? If you say “every” movement, that’s fine — they aren’t just two revolutions of somewhat unsavory varieties.

      • Kevin O’Reilly

        Joe: such a false equivalency ( comparing gender and race as same issues) has been used many times by others. But let’s use that route you like for the sake of discussion. Does questioning the BLM movement, the Black Panthers, or for that matter any one of the many groups claiming to speak for mainstream African Americans make one a white racist? Does questioning unending affirmative action make one a KKK sympathizer? Does criticizing “Ebonics” as a teaching method for grammar in public schools make one a George Wallace worshiper?

        f you think white people who question any aspect of some African-American movements haven’t been called racist ( or implied), I’ve got some swamp land to sell you.

        And if you think that many African-Americans hesitate to speak out against some of the African-American movements for fear of being labeled an Uncle Tom, I’ve got ocean property in South Dakota for you.

        There’s a huge difference between gaining acceptance in everyday American life and forcing others to think and talk exactly like you.

        I hope you live long enough to deal with the other forces not friendly to the LGBT ( Islam and China).

        Please update your social media account when you praise and present EVERY tenet of the LGBT agenda to your local mosque or to the local Chinese consulate.

        • Joe Paulson

          No, I think you by far pass me with bad equivalencies with your talk of “every movement” and then talking about foreign revolutions, not you know “every” movement, which includes those against racial discrimination in this country. Sex is not too far from race — the Supreme Court of the U.S. doesn’t think so, e.g., when it says discrimination by “gender” should receive heightened scrutiny. Sex meet the various criteria for that. The Civil Rights Act of 1964 doesn’t think so, when it cites “race” and “sex” together. And so forth. And, the same criticisms were cited in the race context down the line.

          You said “every” movement and want to cite non-mainstream movements. Why? The LGBT movement is not akin to the BLM and the range of people on the side of them on both sides of the political aisle only highlights it. The likes of Ted Olson isn’t on the side of BLM as much to my understanding. It is again more like mainstream efforts for racial equality, which repeatedly got (and continues to get) pushback, including people complaining about being called “bigots” for things that now most people widely agree is. The same applies to gays — I know people personally who now think domestic partnerships are their right who once would find that totally insane. Eventually, and it won’t be THAT long, marriage will be treated the same way.

          What is the point about Islam? There are lots of Muslims who are LGBT friendly. Ditto Christians. Some aren’t. We are talking a range of beliefs here. China doesn’t respect human rights in a load of ways. Not seeing the point. That the U.S. is better there? Uh huh. Kinda expect they would be much better. And, Islam is about 1% of the population in this country. Don’t think it is going to change our institutions quite yet. We also aren’t quite in “Firefly” territory regarding the Chinese — more likely we are slowly changing their views on things as is the case with their economic system.

          • Kevin O’Reilly

            “China doesn’t respect human rights in a load of ways. Not seeing the point. That the U.S. is better there? Uh huh”

            OK Joe. You win.

            I can’t come up with any way to deal with that part of your comment. Implying that the U.S. is not better than China when it comes to human rights? Seriously?

            You and every progressive are totally right and all of us who have doubts are just simply not worth your time.

            Enjoy your victories (but understand the responsibilities that come with that power)

  • Lee Delong

    This is bigger than any of us.

  • J.E. Tarrant

    Yes, the evil male patriarchy is at it again. We should be like Sweden. They have gender neutral children’s toy commercials, full support transsexuals or transgenders, free birth controls and abortions for all… and they’re importing the most vile hyper-masculine intolerant people on Earth who have turned their country into the rape capital of Europe, have made entire cities completely unsafe for homosexuals to even exist never mind get married. Sweden, as a people and a nation, will cease to exist, and it is about to become the vile pit of oppression that the vast majority of the Arab world is today; which for some reason has been confused by these authors with the United States and high schools that have girls wear white graduation robes.

    I’d really like women to have equal rights. The problem is they don’t. They live longer, actually realize a larger share of the economy than men (thanks to transfer payments), the U.S. recently passed (one of several) “violence against women,” acts, even though the homicide rate for men is 3.5 times what it is for women and the violent crime victimization rate for men is 200 times more. Women also account for 84% of child support recipients, though recently they may get the chance to die in wars like men do, since the Obama Administration and the first openly gay Secretary of Defense (who has never actually served in the military, I’m sure that won’t cause any resentment) has ordered that the military, particularly the U.S. Marine Corps, lower their standards for serving in the infantry, since no women were able to pass the Infantry Officer’s Course and fewer than 1/3 of those that tried the enlisted version were able to pass. Nor could any woman pass Ranger School (Army). I’m sure that our future enemies will co-operate and make wars easier for us because they admire how progressive we are in our values.

    I used to think that we could have a free exchange of ideas with the professor class, who graduates college, goes to more college, and then teaches college, thus avoiding the real world altogether. However, I realize that they have way to much political and social pull, and they’re going to get us all killed unless we pull the plug on their little daydreams.