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>> 51 2 Masculinity by Law Devon W. Carbado This chapter argues that formal equality frameworks can produce and entrench normative masculinities at the level of both formal legal doctrine and civil rights advocacy. In advancing this claim, I do not mean to suggest that formal equality is per se problematic. Nor is it my claim that, in the context of gender relationships, formal equality always produces undesirable outcomes. I simply mean to mark some of the ways in which formal equality and masculinity interact to produce inequality. As I will show, these interactions are mediated by race. My hope is to expand our understanding of the sites in which masculinity is produced, the varied contexts in which formal equality operates, and the role law and civil rights discourse plays in constructing gender-normative categories. In short, the chapter highlights how legal doctrine and civil rights advocacy help to create and sustain normative masculinity by law. As a predicate to the argument, definitions of formal equality and normative masculinities are in order. By formal equality I mean approaches to law and civil rights that frame equality in terms of formal sameness in treatment 52 > 53 might, the intersectional experiences of white women dominate our understanding of gender. This is precisely why, historically, black women have been able neither to invoke their particular experiences as black women to ground their discrimination claims nor have those experiences stand in for the experiences of white women (Crenshaw 1989). Against the backdrop of white normativity, white women are “natural” women. And white men are “natural” men. That is to say, the normative man is not only appropriately masculine, he is also white. He is the norm. Our reference . We are all defined with him in mind. We are all the same as or different from him. The intersectional identity of white normatively masculine men defines what it means to be a man. Against the naturalization of white manhood , black men have been constructed as “failed” men, men whose bodies (and bodily desires) control their minds; men who might more appropriately be referred to as “boys”; men with a “surplus” masculinity that must be quite literally policed. The disciplining and disciplinary nature of the [male/ masculine/man] and [female/feminine/woman] alignments cannot be fully understood without engaging the foregoing racial dynamics. The chapter is organized as follows. I first discuss a case in which a casino fires one of its white female bartenders because she refused to comply with the casino’s grooming policy. I show how the court’s decision against the plaintiff relied upon a formal equality framework that instantiated normative masculinity. In ruling in favor of Harrah’s Casino, the court quite literally permitted that company to make up Jespersen as a white woman. Jespersen lost her case because she resisted that gender conformity. Next, I move from legal doctrine to civil rights advocacy, focusing first on gay rights advocacy against Don’t Ask, Don’t Tell. Rather than repudiating the kind of gender conformity the Jespersen court legitimized, gay rights advocates adopted a “mainstreaming strategy,” whose purpose was to demonstrate that LGBT people are, to borrow from Andrew Sullivan, “virtually normal,” which is to say, white and gender normative (Sullivan 1996). While Don’t Ask, Don’t Tell is a dead letter and marriage equality now constitutes the epicenter of most gay rights civil rights engagements, for at least a decade, this policy was the site for gay rights advocacy. Like the Jespersen court, gay rights advocates employed formal equality arguments that traded on white normative masculinities. This is precisely what Michael Warner identifies as “the trouble with normal”—or the mainstreaming of gay rights advocacy—it acquiesces in and reproduces normative gender identities (1999). Toillustratethattherelianceongendernormativityisracializedandamore general phenomenon within civil rights advocacy, I then highlight one of the 54 > 55 anti-stereotyping and gender non-conformity theory: employers cannot require females to be feminine and males to be masculine. Jespersen argued that Price Waterhouse applied to her case (Jespersen v. Harrah’s Operating Co., Inc., 2006). Her claim, in effect, was that via its grooming policy, Harrah’s Casino was asking Jespersen to “dress more feminine , wear makeup [and] have her hair styled.” Harrah’s was forcing her to align her sex (female) with a normative gender alignment (femininity) (Case 1995; Valdes 1995). The court rejected this argument and Jespersen lost her case (Jespersen 2006). The question is why? The short answer is that the Ninth Circuit, the highest court to...

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