The Antidiscrimination Paradox: Why Sex Before Race?

Abstract:     
This paper seeks to explain a paradox: Why does Title VII's prohibition on sex discrimination currently look so much more expansive than its prohibition on race discrimination? Why in particular, do workers appear to be receiving greater protection for expressions of gender identity than for expressions of racial identity? I argue that as a doctrinal matter, the paradox is illusory - the product of a fundamental misinterpretation of recent sex discrimination case law by scholars. Rather than reflecting fundamentally distinct antidiscrimination principles, the race and sex cases in fact reflect the same traditional commitments to ending status discrimination and undermining group-based subordination. Nonetheless, as a practical matter, the paradox is real. Courts are more likely to protect workplace expressions of gender identity than racial identity. The divergence, I contend, flows not from law, but from culture - in particular society's ongoing commitment to racial transcendence and gender essentialism.

Keywords: sex stereotyping, gender identity, racial identity, sex discrimination, race discrimination

JEL Classifications: K10, K30

Accepted Paper Series