DISAGGREGATING GENDER FROM SEX AND SEXUAL ORIENTATION - THE EFFEMINATE MAN IN THE LAW AND FEMINIST JURISPRUDENCE

''Gender'' is to ''sex'' as masculine and feminine are to male and female. Although the two terms are now used interchangeably in the language of the law, Professor Case argues that it is important to maintain this distinction between them, to avoid allowing substitution of gender discrimination against the traditionally feminine for a now prohibited sex discrimination against women. She contrasts Price Waterhouse v. Hopkins, in which the Supreme Court held it to constitute impermissible sex stereotyping for art employer to advise a female accounting manager to act ''more femininely,'' with cases upholding an employer's right not to hire males specifically because they were deemed ''effeminate'' and with cases allowing employers to demand that their female employees act more masculinely. These cases together demonstrate the danger of a continuing devaluation of qualities deemed feminine, especially when manifested by men, but also when manifested by women. Rather than argue for a change in law to remedy this, Professor Case claims that, properly interpreted, Title VII can be seen already to provide protection against the principal forms of gender discrimination in employment. After exploring the entire spectrum of sex stereotyping based on gendered characteristics in the Title VII context, she uses the example of the VMI case to suggest some broader implications the disaggregation of gender from sex and sexual orientation may have for dissolving the sameness/difference dilemma central to much of feminist jurisprudence and of constitutional sex discrimination doctrine.