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Prowel v. Wise Business Forms, Gender Stereotyping, and Caster Semenya

September 10th, 2009 1 comment

This just in: the South African track star,  Caster Semenya, turns out to be of ambiguous gender. Testing reveals that the athlete, who competed in the recent World Championships and easily won the 800-metre run, has internal testes that produce a large amount of testosterone. There are currently no plans to strip Caster of the gold  medal, but there’s talk about awarding a second  gold medal to the runner-up, presumably on the basis that the winner enjoyed an unfair advantage over the other competitors, though not intentionally. (I’m assuming that Caster’s visible sex organs are female; in any event, she and her family raised her as female and have always considered her so.)

As I wrote previously, this may be one of the cases where we do need to make a determination about gender, because sports competitions are generally divided by sex because of the physical advantages that men possess in most (not all) sports. So going forward, my guess is that Caster Semenya will be required to compete as a male.

But whom should she be allowed to marry? Should the gender chosen, as a matter of necessity, for the limited purpose of athletic competition extend into every aspect of her life? Since her gender is decidedly ambiguous, should she be able to marry the person of her choice, male or female?

In South Africa, the question won’t arise, because that country’s constitutional commitment to equality, which expressly extends to matters of sexual orientation, has been interpreted to embrace the right of gays and lesbians — and, I assume, folks like Caster Semenya — to marry the person of their choice.

Here in the U.S., of course, we’re much more committted to sniffing out gender unambiguously. I’d guess that where that can’t comfortably be done, those who recite the mantra that “children need a mother and a father” would prefer that Caster Semenya not be permitted to marry anyone. Too weird.

As a recent decision by the federal appellate court for the Third Circuit reveals, though, this boxing and commitment to gender has all sorts of strange consequences. In a case arising in Western Pennsylvania, Prowel v. Wise Business Forms, the appellate judges had to sift through a gay man’s allegations of workplace harassment to determine whether the mistreatment he complained of was because of his sex or because of his sexual orientation. Why bother? And what’s the difference, you (non-lawyers) may be asking?

Well, federal law protects against sex-based discrimination but not against discrimination based on sexual orientation. The seminal(?) case involved a woman who alleged discrimination because of her non-conformance to the gender role she was expected to fill. (She “wasn’t charming,” for example.) That kind of gender stereotyping, the Supreme Court ruled in Price Waterhouse, was sex-based discrimination and therefore prohibited by Title VII, the federal law that applies to such actions. So if Prowel can show that he was harassed because he wasn’t “typically” male, he’s got a claim —  even though he also “happens” to be gay.

Both his behavior and that of the “real men” who harassed him are the stuff of easy parody. While he “filed” his nails, the other guys “ripped them off with utility knives.” What? Really? Utility knives? Oh, and he pushed the buttons on his work gizmo “with pizzazz”! What kind of real man does that?

So now the lower court must let the jury decide whether Prowel was harassed because of his failure to  conform to gender stereotypes. If so, the court seems to say, then any mistreatment because of his sexual orientation is beside the point — he’s got a claim. But if the mistreatment were because of sexual orientation only, no claim is stated. There’s still no federal law prohibiting discrimination on that basis.

This is just silly. If Prowel’s allegations are true, he was harassed because gay men, especially but not only effeminate gay men, make some straight men uncomfortable to the point where they feel a need to…rip their nails off with utility knives. Sexual orientation is itself a failure to conform to gender stereotypes, but somehow that most basic point isn’t legally cognizable. The law only protects against sex-based discrimination, so claimants and juries are tasked with separating out two things that…are really one.

Before long, these legal niceties and the more general obsession with gender will come to be seen as historical curiosities — except perhaps in those few cases, like sports, where what’s being measured is something quite specific. We like sports because results are clean and clear, and because there’s an unambiguous finality to the outcomes. But the rest of life isn’t like that, however much some wish it otherwise.