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The purpose of this Article is to expose the way in which Title VII and equal protection law fail to protect adequately all persons in instances where social judgment of what it means to be a man or a woman ("gender") rather than biology ("sex") is at issue. This Article posits that, in a world where men and women are increasingly permitted to have both "feminine" or "masculine" preferences, the current antidiscrimination model does not adequately ensure equality for all persons. Instead, the law in this context inevitably champions the preferences or characteristics of particular categories of persons to the possible detriment of others, depending on whether a court finds that there is a similarity or difference between the sexes. In both scenarios, the law oftentimes arbitrarily deprives entire groups of persons of legal protection.
In light of this criticism, this Article has two goals. The first is to develop and illustrate how the current equality model results in a predictable framework applicable in both Title VII and Equal Protection Clause cases. This framework permits one to anticipate which categories of persons will be benefited and/or potentially harmed when men and women are proclaimed to be either the same or different from each other. The objective in developing this framework is to help practitioners and courts better understand the repercussions of these findings for persons of both sexes. This, in turn, should enable practitioners to better advocate for their clients and encourage courts to consider and discuss, more transparently, the repercussions of sex discrimination decisions for members of both sexes. The second goal of this Article is to suggest an alternative way of thinking about equality that better ensures the protection of persons of both sexes, regardless of individual gender preferences or characteristics.
In consideration of these goals, this Article is divided into two parts. Part I discusses the formal equality principle, which constitutes the theory of equality currently underlying both Title VII and equal protection law. Part I's analysis demonstrates why formal equality's requirement that the sexes be compared in order to determine whether discrimination has occurred works well in the context of biology, where the sexes are uniformly either like or unlike each other, but less well in the context of gender....