The Ninth Circuit's recent decision in Jespersen v. Harrah's Operating Co., Inc. reflects the blinders on many contemporary courts regarding the impact of sex-differentiated dress requirements on female employees. Although some courts have acknowledged the impermissibility of imposing sexually exploitive dress requirements, they have done so only at the extreme outer limits, ignoring the concrete harms experienced by women (and men) who are forced to conform to externally imposed gender norms. On the other hand, some transgender litigants have recently succeeded in challenging sex-differentiated dress requirements. This success is due in part to their incorporation of disability claims based on the health condition associated with each litigant's transgender identity. Such an approach has allowed transgender litigants to introduce evidence of the essentialism of gender identity and its inelasticity for a specific individual. In combining disability claims with sex discrimination claims, transgender litigants have advanced a broader agenda of challenging normative beliefs about gender for all persons, transgender and non-transgender alike. Part I of this Article explores at least one root of the problem influencing courts that hear dress code challenges-something this Article will refer to as "the collective hunch theory," which others have referred to as "normative stereotypes." Part II advocates bringing disability claims where available for transgender plaintiffs and responds to some of the criticisms against doing so. Finally, Part III offers suggestions for framing and litigating future dress code challenges pursued on behalf of non-transgender litigants.
Jennifer L. Levi, Clothes Don't Make the Man (or Woman), But Gender Identity Might, in GENDER IDENTITY AND SEXUAL ORIENTATION DISCRIMINATION IN THE WORKPLACE: A PRACTICAL GUIDE ch. 47 (Christine Michelle Duffy ed., 2014).