The Gender Nonconformity Theory: A Comprehensive Approach to Break Down the Maternal Wall and End Discrimination Against Gender Benders

14 Pages Posted: 19 Apr 2006 Last revised: 20 Aug 2008

Abstract

Recent studies indicate that many female workers are hitting the maternal wall because employers often presume that mothers are natural caregivers and are incapable of fulfilling the role of ideal worker. Similarly, some male employees, who are fighting to dismantle traditional norms about the proper role of working fathers, are being denied family leave benefits automatically granted to new mothers. When these mothers and fathers bring employment discrimination actions, they meet with mixed success. Even feminist theorists cannot agree about how women can best be protected from discrimination and achieve equality. "Difference feminists" believe that the ideal worker norm, which is not designed with the child bearing/child rearing mother in mind, undervalues activities typically associated with women and it is this norm that must be challenged. "Sameness feminists" believe that women will be empowered by giving them greater access to traditional masculine roles and feminist energies should be focused on shattering the glass ceiling so that women are truly allowed access to the same opportunities offered to men. This article proposes that different feminist groups join forces together and with queer theorists to develop a theoretical approach that can be used to dismantle glass ceilings, accommodate mothers and fathers who fail to meet the traditional norms of caregiver and breadwinner, and effectively challenge discriminatory employment practices based on sex, gender, sexual orientation and sexual identity discrimination. Feminists and LGBT advocates should focus their energies on developing the gender nonconformity theory that has been gaining acceptance in a number of federal and state courts. This theory has the most promise for eliminating all types of discrimination "because of sex."

Keywords: queer theory, feminist theory, sameness/difference debate, maternity discrimination, paternity discrimination, gender nonconformity, sexual stereotyping, sex nonconformity, Title VII, employment discrimination, LGBT, transsex, sex discrimination, Price Waterhouse v. Hopkins

Suggested Citation

Greenberg, Julie A., The Gender Nonconformity Theory: A Comprehensive Approach to Break Down the Maternal Wall and End Discrimination Against Gender Benders. Thomas Jefferson Law Review, Vol. 26, p. 37, 2003, TJSL Legal Studies Research Paper No. 897589, Available at SSRN: https://ssrn.com/abstract=897589

Julie A. Greenberg (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States
619-961-4245 (Phone)

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