Chapter Five: Doctrinal Reconstruction: Cohering Law & Reality

ed concepts and their applications in the shifting circumstances of the "real" world). 1145. See supra notes 330 and 335-36 and authorities cited therein on the formal repudiation of sex and gender discrimination under Title VII and the Equal Protection Clause of the Fourteenth Amendment. 1146. See supra notes 428-37 and accompanying text. 19951 CALIFORNIA LAW REVIEW dichotomy.1147 This principle calls for legal culture to overcome its disdain of sexual minorities, and to quit using society's irrational fear and loathing of sexual minorities to justify legal conformance to and ratification of the conflationary status quo. This principle, in other words, requires the courts to reject the EEOC's definitional double standard and to refrain from continued use of their analytical double standard. In this way, the vehicle(s) through which decisionmakers shift claims from Leg One to Leg Two, thereby denying the conflation as a matter of law while licensing it as a matter of culture, would be disabled. This principle consequently involves legal sophistication and analytical acknowledgment of the myriad ways in which androsexism and heterosexism collaborate in everyday situations via the conflation to spark and shape legal controversies. 6. Recognize Underpinnings of Hetero-Patriarchy The sixth principle consequently focuses directly on ideological awareness and sophistication. Specifically, this principle compels recognition of the ways in which androsexist and heterosexist precepts combine to construct and animate the conflation, and thereby to subordinate intentionally and specifically women and sexual minorities." 4 This principle therefore calls for judicial vigilance against the continuing vitality and application of conflationary imperatives that uphold traditionalist active/ passive hierarchies boundaries." 49 This principle ultimately calls for a clear understanding that gender is the central device for the simultaneous oppression both of women and of sexual minorities under hetero-patriarchy. 7. Elevate Remedial Purposes Over Fictions of "Intent" The penultimate principle requires legal culture, and the courts specifically, to elevate the remedial purposes of anti-discrimination law-the eradication of invidious sex/gender bias-over fictional imputations of legislative and constitutional "intent" that in practice cramp the proper reach of existing rules, and that thus undercut the effort to terminate sex/gender bias. This principle applies both under Title VII and under the Constitution. However, this principle is especially urgent under the statute because fictions of intent are used as the chief justification for making the unwarranted and untenable traditional notions approach the primary conception of sex discrimination under Title VII I1150 Therefore, the first step toward the implementation of this principle is to drop the pretense regarding congressional intent in enacting the "sex" provision of Title VII. This pretense, as noted earlier, holds that Congress 1147. See supra Part I.A.2.a. 1148. See supra Chapter Two, Part VI; see also infra Aflterword & Prologue, Part II.D. 1149. See supra Chapter Four, Part I.E. 1150. See e.g., supra notes 1077-79 and accompanying text. [Vol. 83:1I QUEERS, SISSIES DYKES, AND TOMBOYS intended the term to denote "traditional notions" of sex, and thereby makes way for this conceptually underinclusive and historically implausible construction of Title VWII.1si However, the legislative history of the provision shows that sex was included in the statute by amendment strictly as a strategic bluff-a tactic calculated by the amendment's sponsor to defeat the entire bill, and generally understood as such."1 2 Thus, the only plausible interpretation of legislative intent regarding "sex" is that there is none. Concomitantly, this principle calls upon legal culture to recognize that divining an intent behind the Supreme Court's use of "gender" (rather than "sex") in its constitutional law rulings may be equally problematic because the origins of the term in constitutional law are rooted in happenstance. As Justice Ginsburg recently explained, she began using the term "gender" rather than the term "sex" almost by fluke, as part of her litigation strategy to coax judicial acceptance of her pioneering sex/gender arguments: I owe it all to my secretary... who said, "I'm typing all these briefs and articles for you, and the word sex, sex, sex is on every page "Don't you know that those nine men (on the Supreme Court)-they hear that word, and their first association is not the way you want them to be thinking. Why don't you use the word gender? It is a grammatical term, and it will ward off distracting associations." 1 153 Of course, Ginsburg did, and since then "gender" has become ensconced in constitutional case law as the predominant term used in conjunction with the stereotype analysis.1 154 This use of gender in constitutional cases in turn, and over time, has helped to establish "gender" as the legal term to signify the social dimensions of sex-the attributes and roles that are based on sex and that comprise the gender composite.' 15 5 This particular point recently was made clear by Justice Scalia, whose 1994 dissent in the J.E.B. case sharply points out this sex/gender distinction.115 6 Thus, even though the choice of terminology was not originally cognizant of this distinction, the use of "gender" in conjunction with judicial emphasis on stereotyping positions constitutional law to protect against discrimination based on the full range of conflationary stereotypes that make up the gender composite, rather than on the 1151. See supra note 1077 and accompanying text. 1152. See supra note 1074. 1153. Ginsburg Tells Why She Avoids "Sex, " S.F. CHRo N., Nov. 20, 1993, at A12. 1154. See supra Part I.B. 1155. See supra Foreword, Part II.B; see also supra Chapter One, Part I.B.2; Chapter Two, Part I.AB. 1156. See J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1436 n.1 (1994) (Scalia, J., dissenting). But cf Epstein, supra note 49 (arguing that "gender is for nouns'). 1995] CALIFORNIA LAW REVIEW narrow bio-physical construction of "sex."11 7 This terminology therefore is fortuitous: it accurately focuses on gender as the source and object of