Any answer here is bound to be controversial, but it would have to be founded on a notion that we, as a society, have reason to value and therefore preserve a state of affairs in which certain types of behaviors relating to the manner of presenting oneself to others are engaged in predominantly by members of one sex but not the other.109 To put it another way, the rationalizability of sex-dependent workplacepresentation rules must depend on the idea that, even granting that sex and gender or gender-performance can be conceptually disaggregated,110 we nevertheless have reason to maintain a state of affairs in which sex and gender remain linked as a matter of fact-i.e., a state of affairs in which biological males behave in masculine ways and biological females behave in feminine ways.
Patrick S. Shin,
Vive La Difference? A Critical Analysis of the Justification of Sex-Dependent Workplace Restrictions on Dress and Grooming,
14 Duke Journal of Gender Law & Policy
Available at: http://scholarship.law.duke.edu/djglp/vol14/iss1/16