ArticlesVolume 16, Number 1 (2007)

The Formal Equality Theory in Practice: The Inability of Current Antidiscrimination Law to Protect Conventional and Unconventional Persons

Abstract

The purpose of this Article is to expose the way in which Title VII and equal protection law fail to protect adequately all persons in instances where social judgment of what it means to be a man or a woman (“gender”) rather than biology (“sex”) is at issue. This Article posits that, in a world where men and women are increasingly permitted to have both “feminine” or “masculine” preferences, the current antidiscrimination model does not adequately ensure equality for all persons. Instead, the law in this context inevitably champions the preferences or characteristics of particular categories of persons to the possible detriment of others, depending on whether a court finds that there is a similarity or difference between the sexes. In both scenarios, the law oftentimes arbitrarily deprives entire groups of persons of legal protection.