The Bonsfide Body: Title VII's Last Bastion of Intentional Sex Discrimination


THE BONA FIDE BODY: TITLE VII'S LAST
BASTION OF INTENTIONAL SEX
DISCRIMINATION+

SHARON M. MCGOWAN:

Under a classic view of antidiscrimination law, employers cannot
intentionally discriminate on the basis of sex.' This guarantee of a
workplace free of discrimination arises out of both the Equal Protection
Clause2 and, even more directly, Title VII of the Civil Rights Act of 1964.'
A closer look, however, reveals that, in some circumstances, Title VII
actually permits blatant, explicit sex discrimination. For example, under
Title VII, a hospital can categorically exclude men from obstetrics-
gynecological ("ob-gyn") nursing positions. How can this be the case?
Despite its general prohibition of employment discrimination on the basis of
sex, Title VII carves out an exception for sex-specific hiring practices
justified because of a so-called "bona fide occupational qualification," or
"BFOQ." If an employer can demonstrate that simply being a woman or a
man is an essential part of the job, the BFOQ provision immunizes that
employer from liability under Title VII.

In the years immediately following the passage of Title VII,
employers tried to utilize the BFOQ exception to preserve discriminatory
policies that made it more difficult for women and men to take non-
traditional jobs. Employers would suggest that women were not strong

.4enough to perform physically intensive work, such as telephone repair.
Men, on the other hand, were characterized as not soothing or sexy enough

+ © 2003, Sharon M. McGowan. All rights reserved.

Associate, Jenner & Block (Washington, D.C.). J.D., cum laude, Harvard Law
School, 2000; B.A., with honors, University of Virginia, 1995. I am tremendously grateful to
Janet Halley for her time, guidance, and invaluable criticism. I would also like to
acknowledge the outstanding efforts of the editing team at the Columbia Journal of Gender
and Law. In addition, my thanks to Kate Cook, Lani Guinier, Hugh McGowan, Reva Siegel,
Rachel Skiffer, and Judge Norman H. Stahl for their contributions to the development of this
Article. Finally, I would like to thank Kerry Quinn for sharing her brilliance with me.

1 There is an extensive literature discussing the difference between "sex" as a
biological concept and "gender" as a social construction. This Article, however, has a
slightly different focus, and works from the assumption that the drafters of Title VII believed
that the category "sex" classifies biologically distinct groups of people.

2 U.S. Const. amend. XIV.

'42 U.S.C. § 2000e (1964).

' See Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969).



Columbia Journal of Gender and Law

to hold certain service jobs, such as flight attendants.5 Courts have generally
rejected these explanations as merely perpetuating the stereotypes that
prevent men and women from breaking out of traditional sex-identified
roles.

Courts have shown tremendous resistance, however, to the idea that
we can or should throw away all "common sense" notions about the natural
differences between men and women. As a result, many courts continue to
accept the BFOQ justification in a residual cluster of sex discrimination
cases involving prison guards, medical attendants, and bathroom
custodians. While seemingly unrelated, these positions share a common
element in that they involve the potential or actual observation of the
(naked) body. When faced with these cases, courts have validated sex-
specific hiring practices out of a desire to protect privacy and prevent
physical or psychic harms to third parties. In prison guard cases, where
equal employment claims and privacy interests have clashed most acutely,
some judges decide that job applicants' right to equal employment
opportunities outweighs prisoners' diminished expectation of privacy. In
other instances, courts find that sex-discriminatory employment practices
are necessary components of prison policies to promote security and
rehabilitation. In the hospital and janitor cases, by contrast, courts regularly
accept employers' arguments that they must implement sex-specific hiring
practices in order to respect the privacy interests of their clientele.

This Article argues that courts' continued willingness to recognize
BFOQs in these cases stems from their reliance on problematic sex-linked
stereotypes and heteronormative premises, all of which threaten to enervate
the transformative promise of Title VII. The normative assumptions that
courts bring to their analysis reflect their ambivalence regarding and, in
some instances, outright resistance to the implementation of a regime of
total sex equality. Furthermore, their touting of BFOQs as a panacea for
sexual abuse and dignitary harms not only betrays the spirit of Title VII but
also allows a broad range of abuses to go unaddressed.

Part I offers a limited overview of Title VII BFOQ jurisprudence,
first by outlining what have come to be known as the seminal BFOQ cases
and then by discussing the Supreme Court's main BFOQ decision, Dothard
v. Rawlinson With this foundation in place, Part II presents the four
primary justifications that lower courts have offered when accepting BFOQ
defenses in prison, hospital, and bathroom cases: the threat of physical and
sexual assault, the dignitary harm caused by cross-sex observation, the
erosion of civilized norms of modesty, and the frustration of rehabilitative

5 See Diaz v. Pan-American Airlines, 442 F.2d 385 (5th Cir. 1971); Wilson v.
Southwest Airlines, 517 F. Supp. 292 (N.D. Tex. 1981).

6 See infra Part I1.B for discussion regarding the notion of natural or biological

differences between the sexes.

7 See 433 U.S. 321 (1977).

[Vol. 12:1



The Bona Fide Body

goals. This Part also identifies the normative bases underlying these
arguments and assesses the accuracy and propriety of these assumptions.
Part III then proposes that the BFOQ exception should be limited further, if
not eliminated altogether, in order to maximize the potential of Title VII's
antidiscrimination mandate. Specifically, in the non-incarcerated world,
sex-based BFOQs should play no role, and individuals should be forced to
absorb the costs of their taste for discrimination. With regard to prisons,
however, in the absence of other meaningful safeguards, BFOQs may in
fact be the only way to prevent the sexual abuse of female prisoners by
male guards.

Through this Article, I hope to demonstrate the extent to which
BFOQs are fundamentally inconsistent with the mandate that all individuals
be judged on the basis of their own merit, rather than on overbroad
generalizations about the capabilities of their sex. In the vast majority of
cases, the notion that an individual's sex, independent of any other
characteristic, could render someone unfit or unqualified to perform a job
cannot withstand scrutiny. Consequently, the BFOQ exception to Title VII
should be drastically limited. As we become more comfortable with new
norms of sex equality, simple observation by a member of the opposite sex
will no longer feel inherently violative, and our understanding of what it
means to be treated with dignity will evolve accordingly. As long as courts
permit employers to utilize BFOQs based solely on views about sex
constrained by tradition, the goal of equal employment opportunity will
remain elusive.

I. TITLE VII AND THE BONA FIDE OCCUPATIONAL
QUALIFICATION

8

Title VII of the Civil Rights Act of 1964 is the primary federal
statutory provision addressing discrimination on the basis of sex in the
workplace. 9 Sex, however, was only added to the list of protected categories

8 Earlier drafts of this section were prepared with the assistance of Hunter &
Eskridge, Sexuality, Gender & the Law Chap. 10, § 2 (1997).

9 42 U.S.C. § 2000e (1964). Title VII reads in relevant part:

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment because of such individual's race, color, religion,
sex or national origin; or

(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive any individual
of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's race, color,
sex or national origin.

2003]



80 Columbia Journal of Gender and Law [Vol. 12:1

in a last-ditch effort to defeat the legislation. 0 As a result, commentators
and judges have had little legislative history upon which to rely when
offering their interpretation of the "purposes" of the sex provision of Title
VII. A commentator writing at the time of the Civil Rights Act's passage
noted that the House Judiciary Committee held no hearing on the
amendment prior to the vote and that the House debate on the amendment
covered a mere nine pages of the Congressional Record."

Unlike racial discrimination, which is prohibited without
exception, 12 sex discrimination is permitted in certain limited circumstances
where only one sex is considered "suitable" for a job because of its
exclusive possession of some trait or characteristic that is a bona fide
occupational qualification for the position. The BFOQ provision reads:

Notwithstanding any other provision of this subchapter ... it shall
not be an unlawful practice for an employer to hire and employ
employees ... on the basis of his religion, sex or national origin in
those certain instances where religion, sex or national origin is a
bona fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise.13

The Interpretive Memorandum of Title VII ("Memorandum") submitted by
the Senate Floor Managers of the Civil Rights Bill referred to the BFOQ as
a "limited exception" to the prohibition against discrimination, conferring
upon employers a "limited right to discriminate.' 4 The Memorandum

'o See Charles Whalen & Barbara Whalen, The Longest Debate: A Legislative

History of the 1964 Civil Rights Act 115-16 (1985); Katherine M. Franke, The Central
Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L.
Rev. 1, 23-25 (1995); Francis Vaas, Title VII: Legislative History, 7 B.C. Indus. & Com. L.
Rev. 431, 441-42 (1966).

" See Vaas, supra note 10, at 442.

12 Notwithstanding clear indications of legislative intent to the contrary, see Vaas,

supra note 10, at 438 n.28, a few courts seem to have carved out an implicit race-BFOQ
under extremely limited circumstances. For example, Judge Wisdom, in the course of
striking down racially discriminatory staffing policies for black patrol officers, suggested
that race might be a BFOQ for certain assignments: "For example, the undercover infiltration
of an all-Negro criminal organization or plainclothes work in an area where a white man
could not pass without notice. Special assignments might also be justified during brief
periods of unusually high racial tension." Baker v. City of St. Petersburg, 400 F.2d 294, 301
n.10 (5th Cir. 1968). See also Wittmer v. Peters, 87 F.3d 916 (7th Cir. 1996) (holding that
black lieutenants were needed in a boot camp prison program where 70% of the inmates
were black, in order to lend legitimacy to the program of severe discipline). For purposes of
this Article, however, I will focus only on the sex-BFOQ.

13 42 U.S.C. § 2000e-2(e) (1964). The BFOQ provision is technically a defense to
Title VII liability. Throughout this paper, however, I will use the terms "BFOQ" and "BFOQ
defense" interchangeably.

14 110 Cong. Rec. 7212, 7213 (1964).



2003] The Bona Fide Body 81

offered as examples of legitimate discrimination "the preference of a French
restaurant for a French cook, the preference of a professional baseball team
for male players, and the preference of a business which seeks the
patronage of members of a particular religious group for a salesman of that
religion.... With regard to sex discrimination, the BFOQ exception was
meant to accommodate those rare jobs that absolutely required employees
to possess some unique sex-specific trait.16

The Equal Employment Opportunity Commission ("EEOC")
regulations offer a substantially similar explanation regarding the scope of
the BFOQ provision. 17 The regulations call for a narrow interpretation of
the BFOQ exception 8 and the rejection of purported BFOQs that are based
on nothing more than stereotypical views about the capabilities of men and
women.' 9 They also explicitly reject customer preferences as a basis for the

15 Id.
16 A relatively non-controversial example that is often cited would be a BFOQ

permitting the exclusive hiring of women for the position of wet nurse.

17 See 29 C.F.R. § 1604.2 (2002). Although the authoritative weight of EEOC
regulations has been a hotly disputed issue, the Supreme Court has not yet decided to weigh
in on the debate. See, e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 122 S. Ct. 681, 689
(2002) (noting that "[t]he persuasive authority of the EEOC regulations is less clear" but
finding that "[b]ecause both parties accept the EEOC regulations as reasonable, we assume
without deciding that they are, and we have no occasion to decide what level of deference, if
any, they are due"). For an example of the heated debate about the weight that should be
accorded to EEOC regulations regarding the permissibility of English-only laws at the
workplace, compare Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993) and Guttierez
v. Mun. Court of Southeast Judicial Dist., Los Angeles County, 861 F.2d 1187 (9th Cir.
1988) (Kozinski, J., dissenting from denial of rehearing en banc) with Garcia v. Spun Steak
Co., 13 F.3d 296 (9th Cir. 1993) (Reinhardt, J., dissenting from denial of rehearing en banc)
and Guttierez v. Mun. Court of Southeast Judicial Dist., Los Angeles County, 838 F.2d 1031
(9th Cir. 1988).

Is See 29 C.F.R. § 1604.2(a) ("The commission believes that the bona fide

occupational qualification exception as to sex should be interpreted narrowly. Labels-
'Men's jobs' and 'Women's jobs'-tend to deny employment opportunities unnecessarily to
one sex or the other.").

'9 The regulations state:

(1) The Commission will find that the following
situations do not warrant the application of the bona
fide occupational qualification exception:

(i) The refusal to hire a woman because of her
sex based on assumptions of the
comparative employment characteristics of
women in general. For example, the
assumption that the turnover rate among
women is higher than among men.

(ii) The refusal to hire an individual based on
stereotyped characterizations of the sexes.



Columbia Journal of Gender and Law [Vol. 12:1

recognition of a BFOQ.20 While suggesting that a sex-discriminatory
practice justified in the name of "genuineness" or "authenticity" might
qualify under the BFOQ provision, the regulations generally offer a more
limited universe of examples for BFOQ-justified discrimination than the
Memorandum.2 1

A. Strong Women and Soothing Men-Title VII and the Debunking of
Sex Stereotypes

The courts have rebuffed most attempts by employers to justify sex
discrimination under the BFOQ provision. In Weeks v. Southern Bell
Telephone & Telegraph Co., the Fifth Circuit announced that, in order to
utilize a BFOQ defense, an employer must demonstrate that he has a
"reasonable cause to believe, that is, a factual basis for believing, that all or
substantially all women would be unable to perform safely and efficiently
the duties of the job involved. 2 2 The court denounced employers' reliance
on "class stereotypes" to deny women who were otherwise perfectly
capable of performing the duties involved the opportunity to obtain
desirable positions. According to the court, the BFOQ exception should be
construed very narrowly in order to implement Title VII's guarantee of
equality and to eliminate the paternalistic attitudes that have kept women
locked in their golden cages:

Such stereotypes include, for example, that
men are less capable of assembling
intricate equipment: that women are less
capable of aggressive salesmanship. The
principle of nondiscrimination requires
that individuals be considered on the basis
of individual capacities and not on the
basis of any characteristics generally
attributed to the group.

Id.
20 See id. § 1604.2(a)(1)(iii) ("The refusal to hire an individual because of the

preferences of coworkers, the employer, clients or customers except as covered specifically
in paragraph (a)(2) of this section" does not justify a BFOQ.).

21 See id. § 1604.2(a)(2) ("Where it is necessary for the purpose of authenticity or

genuineness, the Commission will consider sex to be a bona fide occupational qualification,
e.g., an actor or actress."). Considering the fact that cross-sex representation in theater dates
back to Shakespearean times, however, one could easily question the assumption that sex
would necessarily enhance genuineness. Lady Chablis (from "Midnight in the Garden of
Good and Evil"), Jaye Davidson (from "The Crying Game"), and RuPaul might also beg to
differ.

22 408 F.2d 228, 235 (5th Cir. 1969).



2003] The Bona Fide Body 83

Title VII rejects just this type of romantic paternalism as unduly
Victorian and instead vests individual women with the power to
decide whether or not to take on unromantic tasks. Men have
always had the right to determine whether the incremental
increase in remuneration for strenuous, dangerous, obnoxious,
boring or unromantic tasks is worth the candle. The promise of
Title VII is that women are now to be on equal footing. We
cannot conclude that by including the bona fide occupational
qualification exception Congress intended to renege on that
promise.

23

Two years later, in Diaz v. Pan-American Airlines, the Fifth Circuit
rejected an airline's contention that only women were qualified for the
position of in-flight cabin attendant because they were innately better suited
to perform the "non-mechanical" functions of the job, such as soothing
nervous customers.24 Relying on Weeks, the court insisted that those
responsibilities were not reasonably necessary to the normal operation of
Pan Am's business because, while the customers might prefer female flight
attendants, those preferences did not outweigh the nondiscrimination
directive of Title VII.21

In another noteworthy customer preferences case, Southwest
Airlines argued that sex was a BFOQ because of its particular marketing
strategy of selling "love" in the air. Judge Patrick Higginbotham
acknowledged that Southwest Airlines' marketing ploy-using only
attractive female airline employees and basing its planes out of Dallas's
Love Field-had been adopted as a tactic of economic survival in order to
attract customers. 2

' Nevertheless, he concluded that this advertising

23 Id. at 236.

24 442 F.2d 385, 388 (5th Cir. 1971). The Fifth Circuit summarized the findings of

the trial court regarding "non-mechanical functions" as follows:

[The trial court found that t]he performance of female attendants was
better in the sense that they were superior in such non-mechanical
aspects of the job as "providing reassurance to anxious passengers,
giving courteous personalized service and, in general, making flights as
pleasurable as possible within the limitations imposed by aircraft
operations." The trial court also found that Pan Am's passengers
overwhelmingly preferred to be served by female stewardesses.
Moreover, on the basis of the expert testimony of a psychiatrist, the court
found that an airplane cabin represents a unique environment in which an
air carrier is required to take account of the special psychological needs
of its passengers. These psychological needs are better attended to by
females.

25 See id. at 389 (holding that customer preferences could only justify a BFOQ

when something specific about the sex of the flight attendant rendered the company unable
"to perform the primary function or service it offers").

26 See Wilson v. Southwest Airlines 517 F. Supp. 292, 294 (N.D. Tex. 1981). For

an explanation of Southwest Airlines' precarious financial position, see id. at 293-94.



Columbia Journal of Gender and Law

campaign did not transform the essence of Southwest's business, which
remained the transportation of passengers. As Higginbotham explained,
Weeks and Diaz offered courts faced with a BFOQ defense a two-pronged
test, which asked first whether one or more of a particular job's
requirements could really only be fulfilled by workers of one sex; and if so,
then asked whether the "requirement" was necessary in light of the
"essence" of the employer's business.2 7 Unlike the job of a Playboy bunny,
the court noted, where a female-only BFOQ would promote the essence of
the business-i.e., the heterosexual titillation of male consumers-airline
attendants are not hired to help an airline sell sexual gratification. 28 Rather,
the responsibilities of a flight attendant pertain to the airline's essential
service-transportation-and could therefore be performed by individuals
of either sex. Accordingly, in the absence of some other showing as to why
one sex was incapable of performing the responsibilities of a flight
attendant, no sex-based restriction should apply.29 In dicta, the court noted
that a BFOQ would be more appropriate in other scenarios, such as "where
the preference is based upon a desire for sexual privacy ... including
disrobing, sleeping, or performing bodily functions in the presence of the
opposite sex....,,30

B. The Dangers of "Womanhood"-Dothard v. Rawlinson

Judge Higginbotham accurately predicted that BFOQs would
continue to be prominent in cases involving assertions of privacy. It is
perhaps somewhat counterintuitive then that the foundational Supreme
Court case addressing BFOQs emanated from the prison context-the

27 See id. at 299.

2 See id. at 301 (citing St. Cross v. Playboy Club Appeal No. 773, Case No. CFS

22618-70 (N.Y. Human Rights Appeal Bd. 1971) (dicta); Weber v. Playboy Club, Appeal
No. 774, Case No. CFS 22619-70 (N.Y. Human Rights Appeal Bd. 1971) (dicta)).

29 The court did make note of a case that stood as an exception to this rule,

Fernandez v. Wynn Oil Co., 20 Fair Empl. Prac. Cas. 1162 (C.D. Cal. 1979). In Fernandez,
the employer successfully argued that the cultural norms of his Latin American and
Southeast Asian customers would create virtually insurmountable obstacles for a woman in
the position of international marketing director. As Higginbotham explained, the Fernandez
court had characterized this case as unusual in that the customer preferences were so rigid
that satisfying them could be considered a business necessity. A BFOQ was therefore
necessary because the hiring of a woman "would have totally subverted any business
[defendant] hoped to accomplish in those areas of the world." Wilson, 517 F. Supp. at 302.
Higginbotham noted, however, that the Fernandez court severely limited its holding to the
unique facts of that case and cautioned that "'customer preferences should not be
bootstrapped to the level of business necessity."' Id. at 302 n.24 (quoting Fernandez).
Customer preference only justified the use of a sex-based BFOQ "where no customer will do
business with a member of one sex either because it would destroy the essence of the
business or would create serious safety and efficiency problems." Id.

30 Wilson, 517 F. Supp. at 301 n.23.

[Vol. 12:1



The Bona Fide Body

sphere where privacy interests are afforded the least protection. Because
prisons share attributes in common with hospitals, such as confinement and
observation, and employ strict sex-segregation strategies, as do public
bathrooms, it is not necessarily surprising that the sex-based BFOQ doctrine
locates its jurisprudential origins in the prison setting.

The seminal Supreme Court case on the BFOQ question involved a
claim of sex discrimination brought by a female applicant for the position of
correctional counselor-the functional equivalent of a prison guard-in the
Alabama state penitentiary system.3 Specifically, the plaintiff, Dianne
Rawlinson, challenged the minimum height (5 feet 2 inches) and weight
(120 pounds) requirements for the job, which had the combined effect of
rendering 99.76% of the male applicants but only 58.87% of the female
applicants eligible for consideration.32 The district court agreed that the
requirements were imprecise means to test for desired qualities in prison
guards and noted that the height and weight cut-offs did not even measure
for strength. Rather, "[t]he crude rule of thumb provided by height and
weight levels impermissibly restrict[ed] qualified individuals without giving
them an opportunity to demonstrate their merit," and impermissibly
discriminated against female applicants.33

E.C. Dothard, the Director of the Department of Public Safety,
claimed that the requirements were designed to protect women from the
particularly harsh conditions in the all-male penitentiary.34 Due to the
extreme conditions in the Alabama system, he insisted that the presence of
women in a confined environment "where there are no heterosexual outlets
would unnecessarily arouse and possibly even incite the inmates., 35 Finally,
Dothard alleged that the presence of female guards in an environment
where showers and toilet facilities were communal would violate prisoners'
privacy rights.36

The district court concurred with Dothard's characterization of the
abysmal state of affairs in the Alabama all-male penitentiaries, noting that

31 The case began with another lead plaintiff, Brenda Mieth, who sought
employment as a state trooper. See Mieth v. Dothard, 418 F. Supp. 1169 (M.D. Ala. 1976)
(per curiam). The district court found that the height and weight requirement for the job of
state trooper was not rationally related to any legitimate state interest, and struck down the
provision as a violation of the Equal Protection Clause. See id. at 1182. The state did not
appeal from this ruling, and only contested the district court's finding that the height and
weight requirements for the correctional counselors were invalid under the Civil Rights Act.
See Dothard v. Rawlinson, 433 U.S. 321, 324 n.4 (1977).

32 See Mieth, 418 F. Supp. at 1179.

33 Id. at 1183.

34 Id. at 1184.

35 Id.

36 id.

2003]



Columbia Journal of Gender and Law

the Eighth Circuit had upheld a ruling37 that found the conditions in these
facilities "so bad as to be shocking to the conscience of reasonably civilized
people., 38 As a result, "the rampant violence and jungle atmosphere" that
marked these penal institutions came as "no surprise" to the district court.39

Nevertheless, the court refused to consent to sex-discriminatory hiring
practices on the basis of these facts alone. First, the court noted the presence
of females in other contact positions at minimum security institutions within
the Alabama prison system. Second, with regard to the privacy rights of
prisoners, the court cited with approval the testimony of corrections
officials from other states, all of whom testified that the female guards did
not infringe on inmates' privacy rights any more than male guards and that
female guards were able to perform exactly the same duties as male guards,
with the exception of strip searches. The court noted that these experts
shared the view that the presence of women in all-male prisons
"contribute[d] to the normalization of the prison environment which has an
advantageous psychological effect upon the prisoners."40 The court also
referred to a policy statement issued by the Federal Bureau of Prisons,
which asserted that the use of a sex-integrated staff promoted the goal of
normalization for correctional facilities.41 Ultimately, the district court
concluded that the potential conflict between the female applicants' right to
non-discriminatory treatment in employment and the male inmates' right to
privacy could be avoided by selective assignment of work responsibilities
rather than through discriminatory hiring practices.42

On appeal, the Supreme Court took a very different approach to the
case. While acknowledging that the BFOQ exception is "an extremely
narrow exception to the general prohibition of discrimination on the basis of
sex," Justice Stewart was strongly influenced by the dramatic level of
violence in the prison. 3 Under these conditions, the height and weight
regulations could not be understood merely as an "exercise in romantic
paternalism. '4 4 Because the essence of the job of a prison guard was
maintaining security, the Court insisted that more was at stake than simply

37 James v. Wallace, 406 F. Supp. 318 (M.D. Ala. 1976), affd., 442 F.2d 304 (8th
Cir. 1971). Although Alabama is now in the Eleventh Circuit, at the time of James, Alabama
was part of the Eighth Circuit.

38 Mieth v. Dothard, 418 F. Supp. at 1174 (quoting James, 406 F. Supp. at 329).

39 Id. (quoting James, 406 F. Supp. at 325).
40 Id. at 1184.

41 See id. (quoting Federal Prison System, Police Statement No. 3713.7, dated Jan.
7, 1976).

421d. at 1185.

43 Dothard v. Rawlinson, 433 U.S. 321, 334 (1977).

44Id. at 335.

[Vol. 12:1



The Bona Fide Body

the rights of individual women to assess for themselves the risks associated
with assuming a contact position in a maximum security prison.

Justice Stewart located the site of the problem in Dianne
Rawlinson's "womanhood." The Court accepted Dothard's prediction that
the inmates, deprived of a "normal heterosexual environment, would assault
women because they were women, 45 especially in light of the fact that
sexual offenders were not segregated from the general prison population.
The court cited two examples of assaults on women in an Alabama prison
as proof.46 The female guards, however, were not the only people whose
safety would be jeopardized:

The likelihood that inmates would assault a woman because she
was a woman would pose a real threat not only to the victim of
the assault but also to the basic control of the penitentiary and
protection of its inmates and the other security personnel. The
employee's very womanhood would thus directly undermine her
capacity to provide the security that is the essence of a
correctional counselor's responsibilities.4

In closing, Justice Stewart suggested that the Court's holding should be
limited to the unique and egregious facts presented by the Alabama prisons
and noted that women guards had been and could be used "effectively and
beneficially" in a prison under normal conditions where dangerous
offenders were segregated from the general population.48 In Alabama,
however, the Court would sanction a sex-based BFOQ for the position of
correctional counselor in the state's maximum security prison.49

Rawlinson serves as the cornerstone for a complicated structure of
case law regarding the use of the BFOQ defense in prisons and other
contexts of confinement. Because the language in Rawlinson heavily
emphasized the unique circumstances of that case, however, later decisions
have applied Rawlinson inconsistently. Notably, the Supreme Court refused
to consider Dothard's assertion that prisoners' privacy interests needed
protection. The omission can perhaps be explained by assuming that the

45 id.

46 1d.
47 1d. at 336.
4 Id. at 336. Justice Stewart noted that the State of California had filed an amicus

brief attesting to its success in using women guards in all-male penitentiaries. See id. at 336
n.23.

49 Although the issue in this case was technically a height and weight requirement,
both the district court and the Supreme Court understood the question to be whether or not
the prison could employ a sex-based BFOQ when hiring correctional counselors. See id. at
336-37 ("On the basis of that evidence, we conclude that the District Court was in error in
ruling that being male is not a bona fide occupational qualification for the job of correctional
counselor in a 'contact' position in an Alabama male maximum-security penitentiary.").

2003]



Columbia Journal of Gender and Law

Court was skeptical about the sincerity of the state's alleged interest in
inmate privacy in light of the fact that it had been operating a penal system
under conditions that were found to be in violation of the Eighth
Amendment. Nevertheless, the Court's decision to evade the privacy issue
has resulted in a range of opinions regarding the proper balance between
equal employment opportunities and privacy interests.

II. ASSESSING THE JUDICIAL JUSTIFICATIONS FOR BONA
FIDE OCCUPATIONAL QUALIFICATIONS

Whereas the BFOQ has ceased to be a viable defense with regard to
most discriminatory employment practices, BFOQs have retained their
legitimacy in a specific subset of cases. In particular, disputes about the
breadth of the BFOQ exception have arisen in cases involving not only
prisons, but also other arenas where the possibility of cross-sex observation
exists, namely hospitals and bathrooms. Specifically, lower courts have
been called upon to assess the propriety of sex-specific hiring practices for
jobs whose essential functions include the potential for observation of a
naked body, such as psychiatric ward attendants, ob-gyn nurses, nursing
home orderlies, and bathroom janitors. In adjudicating Title VII claims and
BFOQ defenses, lower courts have consistently framed the issues at stake as
implicating four primary concerns. First, courts have emphasized the
likelihood of physical and sexual assault due to the tensions and temptations
prevalent in environments of confinement. Second, courts have suggested
that cross-sex observation harms the dignity of the individual observed.
Third, courts have insisted that sexual modesty is the mark of a civilized
society, meaning that deviations from these norms of privacy regarding the
naked body result in the erosion of important values of Western civilization.
Finally, where an employer's business is rehabilitation, courts have
assumed that sex-segregation is a necessary component of any effective
program of rehabilitation.

In addition to identifying the four primary rationales that courts
have used to accept BFOQs, this section attempts to expose the normative
assumptions underlying these justifications. Judges' views on sex and
sexuality undoubtedly inform their understanding of which cross-sex
encounters shall result in physical and psychic harm. A careful reading of
their language reveals courts' reliance on rigid notions of sex differences,
notwithstanding the explicit instruction in previous Title VII cases that
people be judged on the basis of their individual characteristics, rather than
according to generalized assumptions about the groups to which they
belong. Yet, in many cases, courts further entrench these traditional
presumptions about sex by grounding their analysis in terms of nature or
biology. The naked body has become the lasting symbol of "true" and
innocuous sexual difference, and freedom from the "harm" of cross-sex

[Vol. 12:1



The Bona Fide Body

observation has become the rallying cry for those who are determined to
preserve sex-specific employment practices.

A. Physical and Sexual Assault

In many cases, courts have insisted that, when men and women
interact in environments of confinement, physical-and especially sexual-
assault is likely to ensue. The Supreme Court in Rawlinson explicitly stated
that female guards would be at grave risk because the male prisoners had
been deprived of a "normal heterosexual environment." 50 Lower courts
have likewise considered the risk of sexual assault so grave as to warrant
the abandonment of Title VII's prohibition against sex discrimination. In
these cases, women-whether they are guards, prisoners, or patients-are
reduced to the status of potential victims, while men, on the other hand, are
classified categorically as potential sexual aggressors.

1. Women Are Too Weak for the Job

The first permutation of this argument relies on the "fact" that
women are naturally weaker than men and therefore are more vulnerable to
attack by prisoners. Although some jurists have suggested that the presence
of women in the prison setting may actually change its inherently violent
nature, 5' many courts accept as axiomatic the argument that hiring female
guards jeopardizes the physical safety of other (i.e., male) guards in the
prison and the stability of the institution as a whole. 2 This determination,
whether tacit or explicit, stems from the belief that most women are
physically frail or, at a minimum, that women are always weaker than their
male counterparts. Courts portray men, on the other hand, as either
physically dominating disciplinarians (guards) or animalistic predators
(prisoners). These jurists assume as a matter of "common sense" that
women would not be able to "bring the authority of the institution to bear
directly on the person of each inmate. 53 Courts characterize female guards
as neither equipped to shield weaker inmates from aggressors nor capable
of protecting prisoners from hurting themselves.54 Even when analyzing

50 Rawlinson, 433 U.S. at 335.

51 See, e.g., Bagley v. Watson, 579 F. Supp. 1099, 1100-02 (D. Or. 1983).
52 See Rawlinson, 433 U.S. at 336.

53 Iowa Dep't of Soc. Servs., Iowa Men's Reformatory v. Iowa Merit Employment
Dep't, 261 N.W.2d 161, 164, 167 (Iowa 1988).

54 St. John's Home for Children v. W. Va. Human Rights Comm'n, 375 S.E.2d
769, 771 (W. Va. 1988) (finding that male-only BFOQ was necessary for child care

2003]



Columbia Journal of Gender and Law

what role, if any, sex should play in the hiring of a prison chaplain, one
court suggested that "it is indisputable that a male chaplain would generally
be better able to prevent an escape (or an attempt to escape) or control a
quarrel or fight among wards than a woman."55

While such concerns about prison security are certainly legitimate,
blanket assertions about the inability of women to perform their duties
epitomize the sex stereotypes that Title VII clearly prohibits from
consideration. Such generalized statements about a category of people (i.e.,
women) completely ignore the fact that not all men may be capable of
performing these difficult and "unromantic" jobs. To be sure, male guards
who oppose changes in employment practices that would allow women on
prison security staffs have invoked war stories about "women who 'froze,'
women who ran away from dangerous situations, and women who were
merely 'in the way.' '5 6 Scholars, however, have difficulty drawing
conclusions from these anecdotes (even accepting them at face value)
because "it is also true that some proportion of male guards are either afraid
or ineffective in such emergencies., 57 As one commentator noted, "very
few male guards would voluntarily go 'one on one' with a prisoner. 58

Therefore, even if an isolated woman might be at heightened risk of assault,
female guards would be part of a unit, all of whom would work together to
ensure the safety of every member of the squad.

These arguments about women's ability to serve as guards also
inaccurately equate raw physical strength with effectiveness as a prison
guard, which is itself an imprecise, although very common, characterization
of the role and responsibilities of a corrections officer. Guards are loathe to
use physical force against inmates because it destabilizes the prison
environment and creates rebellious prisoners.59 Whether male or female,
guards use a variety of techniques to enforce the rules on a daily basis, and
usually do not rely on more direct exercises of power out of fear that
prisoners, who vastly outnumber and could easily overpower the guards,
would retaliate.60 Male guards who immediately respond to unruly prisoners

professionals working with boys because "[s]upervising violent, aggressive, male
adolescents involves protecting the weaker members of the patient community from the
stronger ones; furthermore it also involves protecting suicidal patients from themselves").

55 Long v. Cal. State Pers. Bd., 41 Cal. App. 3d 1000, 1014 (Ct. App. 1974).
56 Lynn E. Zimmer, Women Guarding Men 166 (1986). See also Joycelyn M.

Pollock, Sex and Supervision: Guarding Male and Female Inmates 88-91 (1986).

57 Zimmer, supra note 56, at 167.

58 id.

59 John H. Hepburn, Prison Guards as Agents of Social Control, in The American
Prison: Issues in Research and Policy 199 (Lynne Goodstein & Doris Layton MacKenzie
eds., 1989).

60 See id. at 194-95; Zimmer, supra note 56, at 166.

[Vol. 12:1



2003] The Bona Fide Body

with physical strength may actually exacerbate rather than defuse the crisis
situation. Women's willingness to consider non-violent responses may be

one reason that attacks on female guards are frequently less violent than
those on male guards.6 1

Justice Marshall acknowledged this fact in his dissent in
Rawlinson.6 2 In light of the "barbaric and inhumane" conditions in the
Alabama prisons, Marshall insisted that the safety of any prison official,
male or female, would be jeopardized. In those circumstances, brute
strength is never a guard's primary line of defense against prison violence:

[A]ny prison guard is constantly subject to the threat of attack by
inmates, and "invisible" deterrents are the guard's only real
protection. No prison guard relies primarily on his or her ability
to ward off an inmate attack to maintain order. Guards are
typically unarmed and sheer numbers of inmates could overcome
the normal complement. Rather, like all other law enforcement
officers, prison guards must rely primarily on the moral authority
of their office and the threat of future punishment for
miscreants.63

Marshall emphasized that all well-trained guards, male and female, have the
tools of "common sense, fairness and emotional stability" at their
disposal.64 Furthermore, he found no reason to believe that women are
inherently less strict disciplinanians, or that their purported leniency, when

61 See Bagley v. Watson, 579 F. Supp. 1099, 1101 (D. Or. 1983).

62 Dothard v. Rawlinson, 433 U.S. 321, 340-47 (1977) (Marshall, J., dissenting).

Other courts have adopted Marshall's view, noting that even if women are generally weaker
than men, Title VII's purpose was to ensure that applicants for a specific position be viewed

on the basis of their individual attributes and not disqualified outright merely based on their
membership in a particular group. As one court noted,

The majority of factors ... advance[d] as making the jail
inherently unsafe for women make the jail equally unsafe for
men. Male guards at the jail have been verbally abused,
physically assaulted, taken hostage and defiled by inmates. Jail
officials cannot make the determination that the inherent
dangers of the job are acceptable for men to risk but too
hazardous for women.... There is no evidence that a properly
trained female guard would respond any less swiftly or
effectively in an emergency than a male guard, would be able
to protect herself or others, or would carry out her duty of
maintaining jail security with any less vigor or ability than her
male counterparts.

Hardin v. Stynchcombe, 691 F.2d 1364, 1367 (11 th Cir. 1982).

63 Rawlinson 433 U.S. at 342-43.

64 Id. at 342 (quoting Pugh v. Locke, 406 F. Supp. 318, 331 (M.D. Ala. 1976),

rev'd inpart, 438 U.S. 781 (1978)).



Columbia Journal of Gender and Law

coupled with women's alleged inferior physical strength, would jeopardize
prison security. Noting the lack of serious security breaches in other
Alabama prisons where women served as guards, he dismissed the prison
officials' conjectures as grounded only in biased views of women's
abilities.65 Marshall clearly believed that courts' acceptance of BFOQs in
prisons, based on perceptions that women will not be able to "hold their
own" in high-risk environments, contradicts the most basic principles
underlying the mandate of Title VII by suggesting that the risks present in
the prison setting are more dangerous for qualified women than for
qualified men.

Even in non-penal environments, courts have suggested that
violence will erupt when men and women encounter one another in arenas
that are "supposed" to be segregated by sex. For example, one court
speculated that male employees would be so annoyed by the inconvenience
of having to wait to use the bathroom while a female custodian finished
cleaning that "[e]ven in non-urgent situations, some tenants and visitors
would refuse to adhere to the washroom cleaning schedule, which could
lead to belligerent confrontations. 6 6 As a result, the court ruled that the
company was entitled to assign only men to clean male bathrooms, meaning
that the female applicant's sex disqualified her from consideration for the
only available position. Courts' predictions about violent bathroom
encounters clearly stem from the notion that men cannot prevent themselves
from behaving in an inappropriate way when a woman appears in an
environment that is normally sex-segregated. Not only are these
characterizations somewhat histrionic, but, contrary to Title VII, they also
reinforce rather than question stereotypes about how men and women act.

2. Only Women Are Sexually Vulnerable

Courts also rely on the biological fact that "it is women who are
generally raped, not men" to justify their acceptance of BFOQs.67 Instead of
characterizing sexual assault as an undesirable breakdown in security,
courts seem to accept these violent outbursts as the "natural" response of
confined men.68  Whenever men are "deprived of normal sexual

65 Justice Marshall pointed to the trial testimony where prison officials referred to
the "psychic make-up" of males and females, and their belief that rural male inmates would,
as a historical matter, feel inherently superior to female guards. See Rawlinson, 433 U.S. at
343-44 & n.2.

66 Norwood v. Dale Maint. Sys., Inc., 590 F. Supp. 1410, 1419 (N.D. Ill. 1984).

67 Long v. Cal. State Pers. Bd., 41 Cal. App. 3d 1000, 1000 (Ct. App. 1974).

68 See id. at 1011 n.6 (noting "[a]nyone who maintains that women in general ...
working alone and at night within a facility which occupies one-quarter mile square of space
and is populated solely by male criminal offenders between the ages of 18 and 23 years of
age are not in danger of sexual attack is not using his good sense"); see id. at 1012 (noting

[Vol. 12:1



The Bona Fide Body

,,69
experiences, courts apparently find it reasonable to assume that the men
will attempt to rape the first available female. Yet, an exploration of the
bases for this dire prediction exposes a number of problematic assumptions.
First, this argument presumes that assaults by male inmates against female
guards stem solely from an impulse to satisfy unfulfilled sexual needs rather
than from a desire to exert power and control in and over an environment
that comprehensively deprives them of autonomy. If power rather than
desire is even a partial motivating factor, however, there is no basis to
assume that, under the right circumstances, male prisoners would not also
rape male guards. But even if rape were understood solely as the result of
sexual attraction, courts must assume away homosexuality in order to
render females uniquely vulnerable in male prisons. As most estimates
suggest that the vast majority of the population is heterosexual, such
assumptions may be justified. To the extent that these assumptions actually
mask practices of same-sex abuse, however, BFOQs cannot legitimately be
characterized as a panacea for sexual assault.

Although there are few (if any) reports that discuss the number of
incidents where male prisoners rape male guards, the prevalence of rape
among male prisoners suggests that the possibility of male-on-male sexual
violence between prisoners and guards cannot be dismissed out of hand.
Reports estimate that anywhere between 14% and 22% of male inmates are
victims of sexual assault while incarcerated.70 As one commentator has
noted, "Though the dynamics of the violence may vary from prison to
prison, male rape is very clearly a central element in the hierarchy of power
between inmates-those with more power rape those with less power."' To
the extent that rape is used to establish a pecking order in prisons, a female
guard might not actually be any more at risk for rape than a male guard who
fails to project a sufficient air of authority. In fact, it would be hard to
determine whether rape against a female guard or sodomy against a male
guard would be a greater act of defiance by prisoners. With this knowledge,

that it would "expect too much" to think that male wards could avoid "temptation of this
sort").

69 Iowa Dep't of Soc. Servs., Iowa Men's Reformatory v. Iowa Merit Employment

Dep't, 261 N.W.2d 161, 161 (Iowa 1988). As in Rawlinson, the prison in Iowa Merit did not
segregate prisoners who had been convicted of sex crimes or those with a demonstrated
propensity toward violence.

70 See Stephen Donaldson, Rape of Incarcerated Americans (7th ed. 1995), at

http://www.spr.org/en/doc_01 stats.html (last visited Feb. 21, 2003). The 14% figure is
extrapolated from a 1979-80 survey conducted by Wayne Wooden and Jay Parker, in Men
Behind Bars (1982). The 22% estimate emanates from a study conducted by Cindy
Struckman-Johnson, reported in the Journal of Sex Research 33:1 (1996). See Donaldson,
supra. See also Tamar Lewin, Little Sympathy or Remedy for Inmates Who Are Raped,
N.Y. Times, Apr. 15, 2001, §1, at 1.

71 Michael Scarce, Male on Male Rape: The Hidden Toll of Stigma and Shame,
37-38 (1997).

2003]



Columbia Journal of Gender and Law

courts cannot simply assume that women are somehow uniquely vulnerable
to sexual assault in prisons.

Policies that focus solely on the protection of women reinscribe
their status as victim while simultaneously nullifying the experiences of
men who have suffered sexual assault. For example, after rejecting the
argument of male prisoners that cross-sex searches were impermissible,7 2

the Ninth Circuit accepted the exact same claim when raised by female
prisoners, and justified its differential treatment of men and women by
citing women's unique historical experiences of sexual assault. 3 Yet, as the
statistics on prison rape demonstrate, incarcerated men may in fact be more
"like" incarcerated women with regard to their vulnerability and sensitivity
to risk of sexual assault in the prison context than the Ninth Circuit's
analysis would suggest. Although no one would dispute that many women
have been sexually assaulted, women do not have a monopoly on sexual
victimization. Yet, to the extent that courts even acknowledge the existence
of male survivors of sexual abuse, they ignore the possibility that these men
might find searches by male guards equally traumatizing. Therefore, despite
the fact that BFOQ proponents frequently tout abuse prevention as one of
the benefits of sex discriminatory policies, the definition of "abuse"
frequently fails to comprehend the multifaceted ways in which sexual abuse
permeates society.

Furthermore, the court's emphasis on women's "unique"
vulnerability with regard to rape implies that the rape of a female guard
would be worse than other kinds of breakdowns in security. The societal
consensus that rape is qualitatively worse than other types of assault may in
fact contribute to the victim's enhanced sense of violation.7 4 Nevertheless,
this does not necessarily mean that a sexual assault on a guard would be
more disruptive to prison security than any other types of assault. As one
court acknowledged, "as far as impact on prison discipline is concerned, an
assault is an assault. A sexual assault would only be more destructive if of
its very nature it led to major disruption. 75 In the particular case before it,
however, that court found "no evidence to support that possibility. '" 76

72 Grummet v. Rushen, 779 F.2d 491 (9th Cir. 1985).

73 Jordan v. Rushen, 986 F.2d 1521, 1526, n.5 (9th Cir. 1993) (en banc).

74 While some theorists, such as Michel Foucault, have suggested that "there is no
difference, in principle, between sticking one's fist into someone's face or one's penis into
their sex," many scholars are unwilling to concede this point. See, e.g., Katherine M. Franke,
Putting Sex to Work, 75 Deny. U. L. Rev. 1139, 1142 (1998) (quoting Michel Foucault,
Politics, Philosophy, Culture: Interviews and Other Writing, 1977-1984 200 (Lawrence D.
Kritzman ed., & Alan Sheridan et al. trans., 1988)).

75 Gunther v. Iowa State Men's Reformatory, 462 F. Supp. 952, 957 (N.D. Iowa
1979).

[Vol. 12:1



The Bona Fide Body

In his dissent in Rawlinson, Justice Marshall took umbrage at the
suggestion that female guards' "very womanhood" would lead to increased
violence and sexual assault.77 He rejected this assertion as "perpetuat[ing]
one of the most insidious of the old myths about women that women,
wittingly or not, are seductive sexual objects. ' 78 No evidence in the record
had supported this prediction, and Justice Marshall accused the court of
relying on unconsciously biased notions of "common sense" and "innate
recognition. 79 Such intuitive reasoning relies on the same notions of
"romantic paternalism" that had been expressly forbidden in prior cases
such as Weeks. 80 He insisted that the likelihood of female guards being
attacked solely because they were women was impossible to separate from
the likelihood of their being attacked because they were guards.8' Empirical
studies have since corroborated this claim, suggesting that "the problems
they experience with inmates are inherent to the job rather than related to
their female status., 82 Other reports have even indicated that attacks on
female guards are less brutal than those on male guards, further
undermining this justification for BFOQs

Other courts have been willing to condone the use of BFOQs as a
prophylactic strategy. In some cases, the BFOQ has been justified as a way
to reduce the risk of sexual misconduct between male guards and female
inmates; 84 in others, the BFOQ allegedly serves the dual purpose of
protecting the clients (e.g., prisoners, patients) from sexual abuse and
protecting employees from false allegations of abuse.85 Courts have been
particularly concerned about sexual assault in prison and psychiatric
hospital settings, probably in recognition of the drastic power disparities
present in those environments. Reports about abuse in these institutions
certainly suggest that courts have cause to be concerned. There are
numerous reasons, however, why guards abuse their authority, many of

77 See Dothard v. Rawlinson, 433 U.S. 321, 345 (1977) (Marshall, J., dissenting).

78 Id.

79 id.

80 Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228, 236 (5th Cir. 1969). See also
supra notes 22-25 and accompanying text.

81 Rawlinson, 433 U.S. at 346.

82 See Zimmer, supra note 56, at 103. A female guard described an incident where
an inmate picked up a pool ball and smashed it into the wall, and pointed out that "[h]e
wasn't mad at me for anything; I just happened to be in the way.... The biggest danger in this
job is being in the way of an inmate who is mad or frustrated." Id.

83 See Bagley v. Watson, 579 F. Supp. 1099, 1101 (D. Or. 1983).

8 See, e.g., Robino v. Iranon, 145 F.3d 1109 (9th Cir. 1998).
85 Jennings v. New York State Office of Mental Health, 786 F. Supp. 376, 386 n.14

(S.D.N.Y. 1992), aff'd, 977 F.2d 731 (2d Cir. 1992) (per curiam).

2003]



Columbia Journal of Gender and Law

which have nothing to do with the sex of the individual. For example,
individuals who come from communities with marginal political influence
may actually seek out jobs that allow them to exercise authority over people
who cannot otherwise defend themselves. But rather than looking at the full
range of factors that might suggest a propensity to abuse authority, BFOQs
instead focus exclusively on the sex of the job applicant.

Hospital employers have also been able to justify BFOQs by raising
the specter of sexual assault and by insisting that the cost of monitoring
interactions between male nurses and female patients would be overly
burdensome.8 6 In many instances, however, male nurses could actually be
paired with one of the growing number of female doctors, thus eliminating
concerns about adequate supervision. Furthermore, many institutions would
benefit from heightened surveillance policies for both male and female
nurses, in light of the increasing number of cases where nurses have harmed
or even killed patients due to negligent treatment or worse, such as
intentional overmedication.87

Although the prevention of sexual assault and other unwanted
sexual contact is undoubtedly an admirable goal, the adoption of BFOQs as
the sole strategy to eliminate abuse runs the risk of inextricably linking
women to sexual victimhood and men to sexual aggression, without
necessarily addressing the root causes of abuse, which often have nothing to
do with sexual attraction.

B. Dignitary Harms

While courts have generally discussed physical and sexual assault
as something men do to women, they have also identified a dignitary
harm-suffered by both men and women-resulting from observation by an
individual of the opposite sex.8 Courts have frequently couched this harm

86 See, e.g., EEOC v. Mercy Health Ctr., 29 Fair Empl. Prac. Cas. 159 (W.D. Okla.

1982) at *3; Backus v. Baptist Med. Ctr., 520 F. Supp. 1191 (E.D. Ark. 1981).

87 See, e.g., Marlise Simons, Verdict Delayed for Dutch Nurse Charged with
Killing 13, N.Y. Times, Oct. 8, 2002, at A6; Former Nurse Faces Death Penalty in Missouri:
Man Pleads Not Guilty to Killing Patients, Wash. Post, July 23, 2002, at A2; Mark Spencer,
Ex-Nurse Faces Death Penalty for Killing 4 Patients at Veterans Hospital, Hartford Courant,
Mar. 15, 2001, at Al.

88 Part of the educational mission of the intersex movement has been to call into

question the assumption that there are two sexes, which are the biological opposites of each
other. See Cheryl Chase, Hermaphrodites with Attitude: Mapping the Emergence of Intersex
Political Activism, 4:2 GLQ 189, 190 (1998) ("Though the male/female binary is
constructed as natural and presumed to be immutable, the phenomenon of intersexuality
offers clear evidence to the contrary and furnishes an opportunity to deploy 'nature'
strategically to disrupt heteronormative systems of sex, gender and sexuality."). In most
BFOQ cases, however, courts have assumed that only two biological sexes-pure forms of
"woman" and "man"-are in play. Therefore, I will use the language of "opposite sex"
where necessary to understand the reasoning of the court, but have adopted "different sex" in

[Vol. 12:1



The Bona Fide Body

in the language of psychological distress and anxiety, but they have also
framed the dignitary harm in more general terms. The passion with which
courts denounce cross-sex observation when affirming BFOQ policies
suggests how adamantly courts believe that it is their responsibility to
safeguard against these dignitary harms.

In the prison context, courts have struggled to define the line
between abrogations of privacy that are necessary to ensure security and
those that are simply too degrading to countenance. Courts recognize that
some observation of the nude (or partially nude) body will be necessary in
penal institutions, but simultaneously acknowledge that inmates will
experience these practices as violative of their dignity. 89 Whereas intimate
searches by someone of the same sex is an indignity that a prisoner will
have to bear, many judges believe that cross-sex searches constitute an
unacceptable assault on the "final bastion of privacy." 90 Observation by
someone of the opposite sex, one court suggested, will result in "injured
self-esteem, humiliation and embarrassment,"9' and therefore cannot be
allowed. In these cases, as opposed to those in the previous section, courts
focus on protecting female prisoners from male guards rather than on
protecting female guards from male prisoners. Notwithstanding this
difference, the end result-judicial sanction of explicit sex discrimination in
employment-is the same.

Because courts consider cross-sex observation to be an especially
egregious practice to inflict upon prisoners, courts have been receptive to
sex-discriminatory policies that will eliminate that possibility. Policies
designed to shield women from observation by men are given particular
deference. Prison officials have justified proposals offering heightened
protection for women's privacy by emphasizing that female inmates are less
dangerous, and therefore can be managed with less rigorous supervision.92

In other cases, courts rationalize their heightened protection for female
prisoners by portraying all men as peeping toms who will leer at a naked

other places throughout this article to keep open the debate about rigid biological
dichotomies with regard to sex.

89 In re Long, 127 Cal. Rptr. 732, 736 (Ct. App. 1976); see also York v. Story, 324
F.2d 450, 455 (9th Cir. 1963) ("We cannot conceive of a more basic subject of privacy than
the naked body. The desire to shield one's clothed figure from view of strangers, and
particularly strangers of the opposite sex, is impelled by elementary self-respect and personal
dignity.").

90 Sterling v. Cupp, 625 P.2d 123, 132 (Or. 1981) (en banc).
91 In re Long, 127 Cal. Rptr. at 735.

92 Timm v. Gunter, 917 F.2d 1093, 1103 (8th Cir. 1990) (finding no problem with
the unequal accommodation of the privacy interests of female prisoners versus the male
prisoners, noting that different security concerns and levels of violence justified the
differential treatment).

2003]



Columbia Journal of Gender and Law

female body whenever given the chance.93 Finally, judges invoke the
prevalence of sexual abuse among female prisoners to affirm policies
prohibiting cross-sex searches on the grounds women would suffer
irreparable psychic harm, including anxiety, depression, and suicidal
tendencies from being "man-handled.,

94

Courts also take a particular interest in shielding children from
cross-sex observation. In their view, children who are wards of the state
need special protection from "unnatural" interactions between the sexes,
lest they be scarred for life. In particular, courts insist that subjecting girls

to searches by male supervisors may result in "not only a temporary
traumatic condition, but also permanent irreparable harm to her psyche."95

Boys must also be shielded from cross-sex observation, courts have ruled,

but for somewhat different reasons: "To have a woman supervisor observe
daily showers of boys at a time in life when sex is a mysterious and often
troubling force is to risk a permanent emotional impairment under the guise
of equality."

96

In contrast to the cases involving women and children, courts
express far greater ambivalence about the severity of the harm caused by
cross-sex observation when adult male prisoners are involved. Some judges

operate from the premise that the observation of male inmates by female
guards is just as offensive as male-on-female viewing.97 Others, however,
doubt whether most male prisoners are even troubled by cross-sex
observation at all. 98 Some suggest that, due to the number of prisoners that a
guard must supervise, no guard could observe any one prisoner long enough
to invade his privacy while showering or going to the bathroom.99 These

courts simply admonish prisoners who would rather not be seen naked to

93 See, e.g., Forts v. Ward, 471 F. Supp. 1095, 1101 n.22 (S.D.N.Y. 1979)
(observing that the court felt it somewhat "inappropriate" to allow male guards to "peer in"
upon the female inmates while they slept), aff'd in part and rev'd in part, 621 F.2d 1210
(2nd Cir. 1980).

94 See Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) (en banc). This argument
was also raised in the Torres litigation, discussed infra Part II.D.

95 City of Philadelphia v. Pa. Human Relations Comm'n, 300 A.2d 97, 102 (Pa.
Commw. Ct. 1973).

96 Id. at 102-03. It is particularly interesting that the court would characterize sex

as a "mysterious and often troubling force" for these boys, in light of the fact that some of
the juvenile inmates were under state supervision because they had committed violent sexual
assaults.

97 See, e.g., Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994); Sterling v. Cupp,
625 P.2d 123 (Or. 1981) (en bane).

98 See, e.g., Timm v. Gunter, 917 F.2d 1093, 1100 n.9 (8th Cir. 1990) (noting that

few male inmates actually objected to cross-sex searches); Johnson v. Phelan, 69 F.3d 144,
148 (7th Cir. 1995).

99 Timm, 917 F.2d at 1101.

[Vol. 12:1



The Bona Fide Body

cover themselves with a towel or position their body while showering so as
to minimize invasions on their pnivacy.' ° ° Women prisoners, however, are
not expected to engage in "extensive artificial procedures," such as wearing
nightgowns specifically designed to protect their modesty while sleeping, in
order to preserve "minimal human dignity."'' 1

Whereas some courts have been skeptical of the importance of so-
called dignitary harms that occur in penal institutions, virtually all judges
accept arguments calling for the protection of the dignitary interests of non-
incarcerated individuals in hospitals and bathroom facilities. In the hospital
context, some courts suggest that, if forced to suffer through an encounter
of cross-sex observation, an individual's physical health and well-being
may be jeopardized. For example, in upholding a BFOQ policy that
prevented men from working as childbirth ob-gyn nurses, a court based its
decision on three grounds: customer preference, customer privacy, and
medical necessity. Because the hospital at issue had a large percentage of
high risk births and potentially life-threatening deliveries, the court
permitted the exclusionary hiring policy in order to avoid "medically
undesired tension" and to ensure that "the birth experience not only be
positive but also be without stress. 1 0 2 The court dismissed the fact that,
depending on what transpired during labor and delivery, other (possibly
male) medical personnel might be present in the delivery room, including
anesthesiologists, cardiologists, internists, or pediatricians because, in the
court's opinion, these individuals had limited contact with the mother and
did not perform tasks of an "intimate" nature.'0 3

Courts generally find instances of female nurses observing male
patients less troublesome. This is probably due, at least in part, to the
tradition of women serving as nurses. Some jobs, however, involve tasks
considered so intimate that courts will accept an employer's argument that
sex is a BFOQ. For example, in a hospital-BFOQ case, male orderlies and
female nurses' assistants performed virtually the same duties, many of
which included the manipulation of patients' genitalia. The court validated
a hospital's discriminatory layoff policy, however, on the grounds that the
hospital needed to ensure that there was a sufficient number of male
orderlies on staff in order to perform catherizations-a task that women
were precluded from performing pursuant to hospital policy-so as to avoid
any embarrassment of male patients."°4

'oo Id. at 1102.
1o1 Forts v. Ward, 471 F. Supp. 1095, 1101 (S.D.N.Y. 1979).

102 EEOC v. Mercy Health Ctr., 29 Fair Empl. Prac. Cas. 159 (W.D. Okla. 1982) at
*3 (citing Backus v. Baptist Med. Ctr., 510 F. Supp. 1191, 1194 (E.D. Ark. 1981)).

103 EEOC 29 Fair Empl. Prac. Cas. at *4.

104 Jones v. Hinds Gen. Hosp., 666 F. Supp. 933, 936 (S.D. Miss. 1987).

2003]



Columbia Journal of Gender and Law

While courts will invariably permit employers to adopt BFOQs for
jobs involving cross-sex touching, physical contact is not necessary to
justify a BFOQ. Particularly in a non-penal setting, the mere prospect of
observation frequently convinces a judge to sanction a BFOQ. Noting the
likelihood of "adverse psychological harm caused by embarrassment or
degradation from being observed by members of the opposite sex while
dressing, bathing, and/or toileting or other private activities," one court
accepted the use of a BFOQ for state health service workers in order to
maintain a particular ratio of male staff to male patients. 10 5 The court
accepted the state's argument that the policy was necessary "to preserv[e]
the dignity, autonomy and individuality" of the patients. 0 6 Likewise, in
janitor staffing disputes, courts have expressed concern that unexpected
encounters between the sexes in the bathroom may cause emotional and
dignitary harm to innocent parties. In one case, the court noted that "even
the least intrusive alternative"-where the attendant would knock on the
washroom door to determine whether or not it was in use-"would still
cause stress to tenants and guests," because one could never be sure "if the
attendant would, nevertheless, enter the washroom, not realizing [it] was in
use."'1 7 A policy allowing women to clean the men's room would result in
an "extreme" invasion of privacy and, as one court suggested, would have a
negative effect on the prestige of the building where such practices were
allowed.'0 8 In another case, a school defended its decision to prevent a
seventy-four year old male custodian from being assigned to clean the
bathroom in a female dormitory by noting that a "peeping incident" had
caused heightened concern about the presence of unescorted males in the
dormitories.' 0 9 The school also suggested that the closing of bathrooms to
allow male custodians to clean had "led to inconveniences and
embarrassing situations that infringed [the female students'] privacy."" 0

105 Gibson v. W. Va. Dep't of Health and Human Res., Div. of Health, 452 S.E.2d

463, 466 n.7 (W. Va. 1994).

'6 Id. The court also relied heavily on its previous BFOQ determination in St.
John's Home for Children v. W. Va. Human Rights Comm'n, 375 S.E.2d 769 (W. Va.
1988).

107 Norwood v. Dale Maint. Sys., 590 F. Supp. 1410, 1422 (N.D. I1. 1984). See
also Brooks v. ACF Indus., 537 F. Supp. 1122 (S.D. W. Va. 1982) (holding that no
reasonable scheme could be implemented that would allow a female janitor to clean male
bathrooms).

108 Norwood, 590 F. Supp. at 1416-17.

109 See Hernandez v. Univ. of St. Thomas, 793 F. Supp. 214, 218 (D. Minn. 1992).

"1o Id. The court discredited this argument, however, in light of the fact that the

University had operated its dormitories with male custodians for over five years without
incident. See id. Similarly, other courts have placed great significance on the fact that male
guards had served in female prisons without incident. See, e.g., Edwards v. Dep't of Corr.,
615 F. Supp. 804, 809 (M.D. Ala. 1985); Percy v. Allen, 449 A.2d 337, 341 (Me. 1982).

[Vol. 12:1



The Bona Fide Body

The court ultimately ruled against the male custodian, finding it to be a
matter of "common sense ... that the majority of people would not want a
person of the opposite sex cleaning the bathroom while in use."'II

The dignity rationale is the most pervasive, and, for many, the most
persuasive justification for the acceptance of BFOQs. Throughout history,
forcing people to remove their clothes has been a common method of
humiliation. Immediately upon entering the Nazi concentration camps, for
example, prisoners were frequently forced to strip naked. Because of the
visceral reaction such practices elicit, arguments invoking the dignity
interests of those wishing to shield their naked body from the view of others
carry tremendous force. Consequently, they also pose a significant
challenge to those challenging sex-specific hiring practices justified on
these grounds. In this context, however, the dignity argument emphasizes
the unique and supposedly more egregious harms caused by cross-sex
observation, without acknowledging the humiliation that results simply
from being forced to stand naked before a stranger. Yet, this view is subject
to critique on two distinct fronts. First, courts presume the naturalness of the
biological differences that define what parts of the body should be protected
from view. Second, courts underestimate the extent to which observation
and surveillance are their own manifestations of power, regardless of the
sex of the participants. Both of these critiques render the dignity rationale
suspect.

1. (Women's) Modesty Deserves Protection

The vigilance with which courts protect bodies, and particularly
women's bodies, from cross-sex observation demonstrates the extent to
which courts ascribe without hesitation to the view that there are natural and
biological differences between men and women. Yet, by deciding which
"parts" should be understood as "private," courts actually create and
reinforce the "natural" lines of demarcation between "men" and "women."
As Monique Wittig explained, the extent to which society has given cultural
and sexual meaning to particular parts of the anatomy is a reflection of the
ways in which "men" and "women" have been classified along heterosexual
and reproductive lines:

[S]ex is taken as an "immediate given," a "sensible given,"
"physical features," belonging to a natural order. But what we
believe to be a physical and direct perception is only a
sophisticated and mythic construction, an "imaginary formation,"
which reinterprets physical features (in themselves as neutral as

'11 Paul Gustafson, Man Denied Job Cleaning Women's Dorm Bathroom, Star-

Tribune Newspaper of the Twin Cities Minneapolis-St. Paul, Dec. 31, 1992, at 2B.

20031



Columbia Journal of Gender and Law

any others but marked by the social system) through the network
of relationships in which they are perceived.' 12

It is no accident that women's biological differences or "private parts"
correspond to those areas of their bodies related to reproduction. The very
fact that certain body parts are named and that significance is attached to
specific particular biological variations demonstrate the extent to which
societal norms rely on the presumption of heterosexuality and female
reproductivity. Once these normative assumptions are revealed, it becomes
clear that sex should be understood as a political category rather than the
mere catch-all phrase by which "natural" or biological differences are
merely recognized.1 3 Michel Foucault acknowledges the fallacy of the idea
that "sex" is a naturally occurring category by commenting that "the notion
of 'sex' made it possible to group together, in an artificial unity, anatomical
elements, biological functions, conducts, sensations, and pleasures, and it
enabled one to make use of thisfictitious unity as a causal principle.... 114

In the face of these challenges to the notion that there is such a thing as
"sex," Judith Butler has suggested that it may be altogether futile to build an
identitarian movement around "women" when it is unclear "whether that
femaleness is really external to the cultural norms by which it is
repressed."' 15 One need not abandon the category of "women" as a
meaningful concept altogether, however, to recognize that paternalistic
laws, rather than the laws of nature, have "sanction[ed] and require[d] the
female body to be characterized primarily in terms of its reproductive
function."' 16 In other words, our understanding of which parts of the body

112 Monique Wittig, One Is Not Born a Woman in The Straight Mind and Other

Essays 9, 11-12 (1992).
113 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity 92-93

(1990) [hereinafter "Gender Trouble"] ("If we accept Foucault's framework, we are
compelled to redescribe the maternal libidinal economy as a product of a historically specific
organization of sexuality.... Indeed, the clearly paternal law that sanctions and requires the
female body to be characterized primarily in terms of its reproductive function is inscribed
on that body as the law of its natural necessity."). Although a comprehensive analysis of the
growing transgender caselaw is beyond the scope of this article, the palpable discomfort
courts experience when trying to align legal, social, and biological categories of sex in cases
involving transgender people highlights the artificiality of these categories. See generally
Susan Etta Keller, Operations of Legal Rhetoric: Examining Transsexual and Judicial
Identity, 34 Harv. C.R.-C.L. L. Rev. 329 (1999).

114 1 Michel Foucault, The History of Sexuality, 154 (Vintage 1980) (emphasis

added).
"15 Gender Trouble, supra note 113, at 93.

116 Id. at 92-93. Although Butler has questioned the premise that biology precedes

the socially constructed unit "gender," even she has acknowledged that, in some sense,
bodies matter. See generally Judith Butler, Bodies that Matter (1993). Yet even though the
category of "women" is descriptively imprecise and perhaps altogether incoherent, Butler
notes that the term women may be better understood as a political signifier, which can serve

[Vol. 12:1



2003] The Bona Fide Body

are private and worthy of protection from view-breasts versus feet-
cannot be divorced from this system of heterosexuality and reproduction. 17

To the extent that these differences seem real to the people
involved, policies prohibiting cross-sex observation may not seem
problematic. Anyone interested in debunking traditional views of and
paternalistic attitude towards women, however, should question why courts
have been so eager to defend women's modesty while, at the same time,
dismissing identical concerns raised by men as frivolous. Judge
Easterbrook, for example, dismissed the notion that male prisoners are
subjected to a cruel invasion of privacy when viewed by female guards,
noting that male athletes who encounter female journalists in the locker
room after a game suffer no injury to their psyche. 1 8 The majority of courts
agree that the harm suffered by women as a result of cross-sex observation
is significantly worse than any harm suffered by men. Yet, in doing so,
courts actually reinforce the boundaries of sexual modesty that women are
compelled to respect.11 9

A recent prosecution in Rochester, New York, captures this
phenomenon. After years of marching topless to protest a statute that
allowed men but not women (with some exceptions, including breast-
feeding mothers) to take off their shirts in public, a group of women in
Rochester were finally prosecuted by the local district attorney in 1986. At
their trial, the women argued that the statute violated the state and federal

as a "rallying point, site of phantasmic investment and expectation." Id. at 189. Such an
understanding of the significance of "sex" complements this paper nicely, as this Article is
designed primarily to undermine the notion that "sex" has a static, essential meaning that
courts can claim only to be acknowledging, thus absolving them of any responsibility to
explore the relationship between the meaning of "sex" and other operations of power.

117 See Gender Trouble, supra note 113, at 114 ("That penis, vagina, breasts, and

so forth, are named sexual parts is both a restriction of the erogenous body to those parts and
a fragmentation of the body as a whole. Indeed, the 'unity' imposed upon the body by the
category of sex is a 'disunity,' a fragmentation and compartmentalization, and a reduction of
erotogeneity.") (emphasis in original). See also Louise M. Antony, Back to Androgyny:
What Bathrooms Can Teach Us About Equality 9 J. Contemp. Legal Issues 1, 8 (1998)
("sexism has little to do with the rationality or fairness of taking one's biological sex into
account in particular cases, and much more to do with the 'social realities' against which
biological sex is made significant").

'18 See Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir. 1995). Female reporters had

to fight, however, to gain access to locker rooms. See Ludtke v. Kuhn, 461 F. Supp. 86
(S.D.N.Y. 1978).

'19 A recent example of such social policing of women's modesty demonstrates the

dual standard regarding the covering of body parts. As any fan of the sport knows, male
soccer players routinely take off their shirts and wave them over their heads in celebration of
even inconsequential goals. In contrast, Brandi Chastain was publicly rebuked when she did
(almost) the exact same thing-taking off her jersey, and running around in celebration
wearing only her sports bra-after scoring the game-winning goal in the 1999 World Cup.
For an excellent essay discussing the public outcry regarding Chastain's celebration, see
Libby S. Adler, A Short Essay on the Baring of Breasts, 23 Harv. Women's L.J. 219 (2000).



Columbia Journal of Gender and Law

equal protection clauses. Although the charges against the women were
ultimately dismissed, the New York Court of Appeals avoided the
constitutional issue by ruling that the statute was not intended to prohibit
the women's political protest. 120 Justice Titone, however, insisted that the
issue of the statute's constitutionality could not be avoided, and addressed it
on the merits. Titone began by noting that, while protecting public
sensibilities is generally a legitimate basis for legislating, "it is a tenuous
basis for justifying a legislative classification that is based on gender, race
or any other grouping that is associated with a history of social
prejudice.' 12 ' He noted further that "the concept of 'public sensibility'
itself, when used in these contexts, may be nothing more than a reflection of
commonly held preconceptions and biases.' 22 Titone accepted the
women's position that the difference in treatment between female and male
breasts had no basis in biology, 23 and that any prurient interest uniquely
aroused by the exposure of female breasts was itself a "suspect cultural
artifact rooted in centuries of prejudice and bias toward women.' 24 Titone
observed that, in other parts of the world, women going topless on the
beach is "unremarkable," and cited statutes from various jurisdictions to
buttress his argument that the definition of "private parts" is culturally
contingent. 25  Finding that the state's interest in protecting public
sensibilities did not rise to the level of an exceedingly persuasive
justification, Titone would have found the statute unconstitutional. 26

While Titone's view has not been adopted widely, and has even
been mocked publicly by some commentators, 127 his discussion recognizes
that biological "differences" and the meaning ascribed to those differences

120 People v. Santorelli, 600 N.E.2d 232 (N.Y. 1992) (holding that statute

prohibiting public exposure of breasts did not apply to defendants because statute was
originally enacted to discourage topless waitressing).

121 Id, at 236 (Titone, J., concurring).

122 id.

123 Id. ("from an anatomical perspective, the female breast is no more or less a
sexual organ than is the male equivalent").

124 Id. at 237.

125 id.

126 Id.

127 See, e.g., Alan M. Dershowitz, Cover Up!, Newsday, July 29, 1992, at 38. But

see Torres v. Wis. Dep't of Health & Human Servs. 838 F.2d 944, 950 (7th Cir. 1988)
(noting that courts should ask whether it is "significant that preferences for privacy from
members of the opposite sex may be entirely culturally created, and that by recognizing such
preferences the courts may encourage sex differences at the expense of equality in
employment" when assessing a BFOQ). See infra Part IL.D for a more extensive discussion
of the Torres litigation.

[Vol. 12:1



The Bona Fide Body

are far less "natural" than has heretofore been acknowledged.'28 While
some judges will admit that one's feeling of violation or indignity upon
being observed by someone of the opposite sex is contingent on social and
individual norms, and informed by both psychology and "changing social
expectations about relations between the sexes,' 29 they have also found as
a matter of judicial notice that individuals suffer such dignitary harm. 130 By
accepting without question the idea that there are parts of the body that are
and should remain private, courts deny their role in creating the concept of
the "natural differences" that they purport merely to respect.

2. Cross-Sex Observation Is Especially Harmful

Even assuming that certain body parts are "private" and should be
protected from unwanted viewing by a stranger, one still must question the
premise that cross-sex observation is inherently more degrading. Since the
19th Century, Western prisons and hospitals have become increasingly
permeated by surveillance and observation. 3' Likewise, in modem
penological and medical institutions, observation continues to function as
an exercise of power.'32 Understood this way, the harm of observation
stems from the subordinating effect of observation itself, not from the sex
of the observer.

Using Jeremy Bentham's Panopticon as a primary theoretical
model, Foucault emphasizes the way in which human subjects became the
objects of observation. With regard to prisons, Foucault demonstrates a shift
in the dominant mode of power from spectacle-the theatrical and
spectacular displays of physical punishment-to surveillance-a subtly

128 Wittig would maintain that the meaning attached to any difference given

cultural significance (e.g., in genitalia) operates to reinforce heterosexuality and the
conscription of women into roles of reproduction. See Monique Wittig, supra note 112. See
also Gender Trouble, supra note 113 (discussing Wittig's views of the social construction of
biological "difference").

129 Sterling v. Cupp, 625 P.2d 123, 132 (Or. 1981) (en banc).

130 Although some expert testimony had been presented about the harm suffered by

some inmates due to the cross-sex searches, the court found this premise to be "within the
range of judicial knowledge without the need for evidence." Id.

131 See Michel Foucault, Discipline & Punish: The Birth of the Prison (Alan

Sheridan trans., 1977) (1975) [hereinafter "Discipline & Punish"]; Michel Foucault, The
Birth of the Clinic: An Archaeology of Medical Perception (Tavistock Publications, Ltd.
1973) (1963) [hereinafter "Birth of the Clinic"].

132 The American model of corrections incorporates this penal philosophy of

surveillance as a mechanism of social control. In one of the earliest works about maximum
security incarceration, Graham Sykes noted that "24 hour surveillance of the custodians
represents the ultimate watchfulness and, presumably, noncompliance on the part of the
inmates need not go long unchecked." Graham M. Sykes, The Society of Captives: A Study
of the Maximum Security Prison 41 (1958).

20031



Columbia Journal of Gender and Law

coercive and efficient exercise of power over the mind. In the Panopticon, a
structure in which prison cells circle a central observation tower such that
prisoners are constantly visible, prisoners internalize the idea of constant
observation and, consequently, the gaze of the observer. In this way,
prisoners begin to regulate their own behavior and become the instruments
of their own subjection. As Foucault wrote, "[h]e who is subjected to a field
of visibility, and who knows it, assumes responsibility for the constraints of
power; he makes them play spontaneously upon himself; he inscribes in
himself the power relation in which he simultaneously plays both roles; he
becomes the principle of his own subjection.' ' 33 A system of power based
on surveillance works more efficiently than one based on spectacle because
it operates without any need for the institution of extrinsic forms of control.

The theoretical structure works without the need for constant
observation. The major effect of the Panopticon is

to induce in the inmate a state of conscious and permanent
visibility that assures the automatic functioning of power. So to
arrange things that the surveillance is permanent in its effects,
even if it is discontinuous in its action; that the perfection of
power should tend to render its actual exercise unnecessary; that
this architectural apparatus should be a machine for creating and
sustaining a power relation independent of the person who
exercises it.134

Therefore, the key lies not in actually operating a system of constant
observation, but rather in convincing the prisoner that a guard could be
watching at any moment, so that he begins to regulate himself. Accordingly,
prisoners are taken out of the hidden cavern of the dungeon and housed
instead in a prison cell that is open and exposed to view. By maintaining an
environment in which a prisoner is constantly aware of the possibility of
observation, this theory of discipline resituates the site of punishment from
the body of a prisoner to the mind. Its effectiveness is perhaps demonstrated
best by the fact that the panoptical model of observation is still commonly
used in most American jails and prisons.135

Similarly, Foucault reveals how the system of medical diagnosis
was founded on the practice of observation-on the "medical gaze. 136 As
Foucault explains, medical observation was not always marked with the

133 Discipline & Punish, supra note 131, at 200.

1341d. at 202.

135 Neal Shover & Wemer J. Einstadter, Analyzing American Corrections 88
(1988) ("Most cells, like cages, are open to view, affording no privacy and allowing no
respite from the ever-present surveillance that the 18th Century British jurist Jeremy
Bentham considered the ultimate achievement of imprisonment and which is perhaps the
ultimate manifestation of total domination over inmates.").

136 See The Birth of the Clinic, supra note 131, at 107.

106 [Vol. 12:1



The Bona Fide Body

professionalism that current commentators attribute to the doctor-patient
relationship. 37 Rather, those who sought medical services in the hospitals
were the poorest of society who could not afford private, in-home care. 138 In
the pursuit of scientific knowledge, doctors took advantage of the

opportunities presented by incapacitated, disease-ridden patients, because
"[t]he domain of the hospital was an ambiguous one: theoretically free ...
[but] open to the indifference of experiment.' 39 Foucault characterizes this
unwilling display of the body for the purposes of medical observation and
knowledge gathering as its own particular exercise of violence. 140 Just as the
penological model involves a physical structure designed to maximize the
potential for observation, "the hospital building was gradually organized as
an instrument of medical action; it was to allow a better observation of
patients, and therefore a better calibration of their treatment.' 41 Guards
surveyed the prisoners in ritualized practices; likewise, medical
examination took on its own peculiar rituals. 42 To the extent that the
observer exercised power over the observed, the various forms of
examination "manifest[ed] the subjection of those who are perceived as
objects and the objectification of those who are subjected.', 143

Particularly noteworthy about these Foucaultian models is the
irrelevance of who is observing the prisoner or the patient. The threat even
more than the practice of observation permeates the prison experience;
similarly, observation is the hallmark of the clinical environment. In fact,
the structure of the prison itself sufficiently subjugates the prisoner so as to

render it almost irrelevant whether or not anyone is actually observing the

137 See, e.g., Jennings v. New York State Office of Mental Health, 786 F. Supp.

376, 387 (S.D.N.Y. 1992), afffd, 977 F.2d 731 (2d Cir. 1992) (per curiam) (suggesting that
privacy interests were not implicated by encounters with medical staff because "nurses and
psychiatrists are trained medical personnel who are presumed to be objective when viewing
the human body by virtue of their training").

138 See Birth of the Clinic, supra note 131, at 83.

139 Id. at 83-84.

140 See id. at 84 ("But to look in order to know, to show in order to teach, is not this

a tacit form of violence, all the more abusive for its silence, upon a sick body that demands
to be comforted, not displayed.").

14' Discipline & Punish, supra note 131, at 172.

142 See id. at 185 ("One of the essential conditions for the epistemological 'thaw'

of medicine at the end of the eighteenth century was the organization of the hospital as an

'examining apparatus.' The ritual of the visit was its most obvious form.").

141 Id. at 184-85. While Foucault draws his examples from history, one should not
assume that the phenomena he describes are mere relics of the past. According to a recent
report by Amnesty International, female prisoners are frequently subjected to unnecessary
pelvic exams and other intrusive procedures. The women are afraid to complain, however,
out of fear that doing so might jeopardize their ability to receive emergency medical care in
the future. See Amnesty Int'l, United States of America - The Findings of a Visit to Valley
State Prison for Women, California 3 (April 1999) [hereinafter "Amnesty Report"].

2003]



Columbia Journal of Gender and Law

prisoner. While prison administrators must convey the impression that the
purported surveillance is not a complete myth, the prison through its
structures and operation can operate a system that disallows prisoner
privacy whether or not the inmate is actually being observed: "Power has its
principle not so much in a person as in an arrangement whose internal
mechanisms produce the relation in which individuals are caught up....
Consequently it does not matter who exercises power."' 144 The power over
prisoners operates independent of the person who exercises it, and certainly
independent of the sex of the person who exercises it. 145

If Wittig and Butler are correct that there is nothing "natural" about
the purported differences between the sexes, then courts are actually
creating and enforcing a particular vision of female modesty under the
auspices of respecting privacy. Furthermore, if Foucault's theory of
observation is right, then the notion that dignitary harm stems from the sex
of the observer rather than from the practice of observation itself becomes
less tenable. While the goal of treating people with dignity is certainly an
admirable one, reliance on BFOQs to eliminate dignitary harms is an overly
reductive strategy.

C. Norms of (Western) Civilization

Whereas the first two justifications focus attention on the actual
participants involved in these cross-sex observation encounters, a third
argument in favor of BFOQs suggests that nothing less than fundamental
principles of Western civilization are at stake in this debate. According to
these judges, the notion that men and women could view each other in the
nude without any discomfort or feelings of impropriety deviates so far from
traditional core values of modesty and civility that Title VII could never
have been meant to sanction such practices.

Many jurists unapologetically assert that the aversion to cross-sex
observation is a manifestation of the values that serve as the foundation of

144 Discipline & Punish, supra note 131, at 200.
145 For this reason, I choose not to incorporate the literature of the "male gaze." See

generally Laura Mulvey, Visual Pleasure and Narrative Cinema, Screen 16:3, Autumn 1975,
at 6. My point is that the gaze itself is neither male nor female, but rather should be
understood as a form of power that can be exercised by male and female guards or medical
attendants alike. Those who insist on calling it the "male gaze" perpetuate four distinct, and,
in my opinion, harmful visions of the world: (1) assuming that all demonstrations of power
are male; (2) suggesting that abusive forms of observation are natural to men, which strips
them of responsibility for their abuses; (3) overlooking the extent to which women perpetrate
dignitary harms against men and women over whom they have power; and (4) stripping
women of the agency either to control the gaze or to be the subject, rather than the object of
it. I am certainly not the first to present this critique of Mulvey's work. This footnote,
however, is designed to explain a strategic decision with regard to the analysis in this Article,
rather than to engage in a comprehensive debate about the concept of the "male gaze."

108 [Vol. 12:1



The Bona Fide Body

society. In their view, the nudity taboo reflects "a deeply held social moral
and emotional bias pervading Western culture. 146 As one judge explained:

It is perfectly clear that men and women, from the beginning of
recorded history have had an innate need for privacy in certain
areas of living. Virtually all societies, even those which have had
little requirement for clothing for adults and none for children,
have rules for the concealing of female genitals. And while
societies such as the Samoan have ... no privacy and no sense of
shame, the norm in today's western world is to have enclosed
toilet facilities in the home and segregated toilet facilities in
public places which children are early taught to use. Even small
children in the western world are expected to clothe themselves
and keep their private parts covered. These society rules become
mandatory as one approaches adult status. The fact that a need for
privacy is the product of social conditioning makes it no less
embarrassing or occasions no less feeling of shame when the
privacy is invaded.

47

Rather than a mark of progress, abandonment of the nudity taboo to these
judges amounts to a return to the state of nature and primitivism.
Accordingly, they have described the practice of cross-sex observation as
dehumanizing, 148 and have drawn comparisons to the treatment of
concentration camp detainees. 49 Simply stated, "one of the clearest forms
of degradation in Western Society is to strip a person of his clothes,"
particularly in the presence of a person of the opposite sex. 50

Courts suggest that the decision to respect prisoners' assumed
preference for same-sex observation represents a floor of decency below
which a civilized society should not be permitted to fall. When state prison
officials challenged a labor arbitrator's pronouncement requiring the
institution to make all prison guard shift assignments without regard to the

146 In re Long, 127 Cal. Rptr. 732, 736 (Ct. App. 1976).

147 Forts v. Ward, 471 F. Supp. 1095, 1098 (S.D.N.Y. 1978).
148 Johnson v. Phelan, 69 F.3d 144, 152 (7th Cir. 1995) (Posner, J., concurring in

part and dissenting in part) ("Animals have no right to wear clothing. Why prisoners, if they
are no better than animals? There is no answer, if the premise is accepted. But it should be
rejected, and if it is rejected, and the duty of a society that would like to think of itself as
civilized to treat its prisoners humanely therefore acknowledged, then I think that the interest
of a prisoner in being free from unnecessary cross-sex surveillance has priority over the
unisex-bathroom movement.").

"49 Commonwealth Dep't of Corr., State Corr. Inst. at Muncv v. AFSCME
Council 13, 515 A.2d 1000, 1003 (Pa. 1986) [hereinafter "Council 13"]. As mentioned
previously, such images are frequently invoked by proponents of the dignity argument,
discussed supra Section II.B.

150 Canedv v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994) (citing 3 Privacy Law

and Practice 25.02 [1] (George B. Trubow ed., 1991)).

2003]



Columbia Journal of Gender and Law

sex of the guard, the court reversed the decision because it ignored the
responsibility of a public agency "to deal with its inmate population
effectively, efficiently and humanely.'' 5 The court insisted that the prison
recognize "that minimal degree of personal privacy which the common
opinion of civilized communities recognizes to be the entitlement of every
person."' 

52

Other judges have linked the nudity taboo to the Judeo-Christian
traditions prevalent in American society. Judge Posner has suggested that
the taboo against being seen nude by strangers "is strongest among
professing Christians, because of the historical antipathy of the Church to
nudity.' 53 In a case addressing the issue of whether a BFOQ could justify a
policy preventing a male janitor from cleaning women's dormitory
restrooms, the court insisted that "the same-sex custodial policy was central
to the university's mission ... [and] noted that [the school's] lack of coed
dormitories is rooted in a traditional Catholic value system which can be
traced back to the university's beginning. '' 54

Some judges, and Judge Posner in particular, have suggested that
the imposition of cross-sex observation is the project of "radical feminists"
who regard sex as nothing more than a social construction, a dichotomy
perpetuated by patriarchs. 55 Posner's defense of traditional notions of
sexual modesty from attack by perceived extremists resembles Edmund
Burke's criticism of the French Revolutionaries, who wanted to discard all
remnants of prior institutions in the name of their new ideals. Just as Burke
rebuked those who invoked high theoretical principles rather than engaging
the realities of a particular situation, 56 Posner has likewise denigrated

'1 Council 13, 515 A.2d at 1003. See also Rider v. Pennsylvania, 850 F.2d 982,
987-95 (3d Cir. 1988) (holding that Commonwealth Court determination in Council 13
litigation was a judgment on the merits entitled to preclusive effect in later Title VII action in
federal court).

152 Council 13, 515 A.2d at 1003.

153 Johnson, 69 F.3d at 152 (Posner, J., concurring in part and dissenting in part).
In some of these cases, prisoners also raised First Amendment Free Exercise claims, alleging
that their religious beliefs prohibited them from being seen nude by a non-spousal member
of the opposite sex. See, e.g., Madyun v. Franzen, 704 F.2d 954 (7th Cir. 1983); Johnson v.
Pa. Bureau of Corr., 661 F. Supp. 425 (W.D. Pa. 1987); Sam'i v. Mintzes, 554 F. Supp. 416
(E.D. Mich. 1983); Forts v. Ward, 471 F. Supp. 1095 (S.D.N.Y. 1977), aff'd in part and
rev'd in part, 621 F.2d 1210 (2d Cir. 1980).

154 Paul Gustafson, supra note 111, at 2B. The judge also cited the difficulties in
scheduling time when a male custodian could clean a heavily-used female bathroom. See
Nation Briefly: Wire Reports, Fort Worth Star-Telegram, Dec. 31, 1992, at 4.

155 Johnson, 69 F.3d at 152 (Posner, J., concurring in part and dissenting in part).

156 As Anthony Kronman, a modem-day Burkean, explains:

Those who approach the problems of political life in the
prudential spirit Burke recommends give great (though not

110 [Vol. 12:1



2003] The Bona Fide Body 111

feminists for engaging in a program of "progressive social engineering,"
and for belittling the harms resulting from their radical programs as
necessary evils or as mere "way stations on the road to sexual equality."' ' 57

Some courts have recognized that the views of "civilized society"
regarding cross-sex observation continue to evolve. In one case, a court
recognized that not all plant workers objected to having to use the bathroom
while a female janitor was present, and noted that some of the younger
males "indicated that they had no such objection-this perhaps a
commentary on the not altogether incipient changes in the American ethos
pertaining to nudity and the like in recent years."' 5 8 Yet, the so-called
"immodest American," who is comfortable with the prospect of cross-sex
observation is still considered an aberration. Only "in exotic places such as
California" have traditional values of modesty fallen to the wayside. 159

Another cluster of jurists have acknowledged the cultural
contingency of the nudity taboo, but have refused to believe that Title VII
was designed to change the culture that created the taboo. In a case
involving the staffing of health care workers, a court rejected the argument
that the sex of the medical professional observing a patient's naked body
was irrelevant, suggesting that it was both an unrealistic view of human
mores and contrary to the law of privacy.160 While noting that the patient's
discomfort is culturally produced rather than a manifestation of the "natural

uncritical) deference to established routines and existing
institutions.... By contrast, those who see these same problems
in a philosophical light refuse to acknowledge the
contingencies that count so heavily in the judgments of the
prudential politician. They insist instead that politics requires a
more abstract approach which disregards past practice and the
distinctions among historically evolved regimes.

Anthony T. Kronman, Precedent and Tradition, 99 Yale L.J. 1029, 1055-56 (1990). See
also Alexander Bickel, The Morality of Consent 22-23 (1975) ("You cannot start from
scratch, [Burke] maintained, and expect to produce anything but a continual round of chaos
and tyranny, until you return to the remnants of what you sought to destroy.... In order to
survive, be coherent and stable, and answer to men's wants, a civil society had to rest on a
foundation of moral values.... Theories were not fit to live with, and any attempt to impose
them would breed conflict, not responsive government enjoying the consent of the
governed."). For an excellent description of the differences between Burkean conservatives
and utilitarian conservatives, see Chapter 8 of Marc Kelman & Gillian Lester's book,
Jumping the Queue: An Inquiry into the Legal Theory Treatment of Students with Learning
Disabilities (1998).

157 Johnson, 69 F.3d at 151.
158 Brooks v. ACF Indus., 537 F. Supp. 1122, 1128 n.20 (S.D. W. Va. 1982).

Despite this acknowledgment, the court still ruled against the female janitor.

159 Johnson, 69 F.3d at 148.
160 Local 567 AFSCME v. Mich. Council 25, 635 F. Supp. 1010, 1013 (E.D. Mich.

1986).



Columbia Journal of Gender and Law

order of things," the court held that "there is no reason why cultural
attitudes cannot be protected.' 16 ' The court rejected the proposition that
Title VII was designed to transform precisely these types of cultural norms
by stating conclusorily that "the purpose of the sex provisions [of Title VII]
is to eliminate sex discrimination in employment not to make over the
accepted mores and personal sensitivities of the American people."' 62

Courts have also used BFOQs to preserve employment practices
that, in their view, Congress never intended to disturb. For example, due to
the obstacles historically facing women who wanted to become doctors,
many female patients had no other option than to accept care from male
physicians. Courts have refused to construe this fact, which itself was a
byproduct of discrimination, as a waiver of privacy interests. In other
words, the fact that, after the passage of Title VII, women were entitled to
become doctors did not necessarily mean that men were entitled to be
nurses:

[I]t is no answer to say that the necessity for prudery to give way
to medical necessity has always been recognized even in
Victorian times, so far as doctors are concerned. The reason, of
course, is that the patient knows and accepts the fact of this
necessity: if all female patients demanded female surgeons,
obstetricians, gynecologists, and the like, a lot of them would go
untreated. 1

63

Although appropriately recognizing the role history plays in influencing
individuals' conception of privacy, the court's conclusion nevertheless
remains suspect. By relying upon historical practices to justify BFOQs,
courts simultaneously immunize long-standing practices that entrench sex
stereotypes from criticism (i.e., female patients must accept the necessity of
being seen by male doctors) and prevent individuals from taking positions
that were traditionally held by members of the opposite sex (i.e., men
becoming nurses), both of which impede the reexamination of socially
constructed norms like privacy.

Burkean justifications based in tradition and the status quo are
precisely what foundational BFOQ cases would rule out. By opening up
jobs that have historically been gendered male or female, Title VII has a
pivotal role to play in the transformation of societal norms. Rather than
allowing this evolution to happen, however, courts have used the BFOQ
exception to preserve societal views about the "proper" ways for the sexes

161 Id. at 1014 n.7.

162 Id. at 1014 (citing Larson, Employment Discrimination--Sex, § 14.30, 4-8 (3d

ed. 1980)).
163 Backus v. Baptist Med. Ctr., 520 F. Supp. 1191, 1194-95 (E.D. Ark. 1981)

(citing Larson, supra note 162, at § 14.30, 4-8).

[Vol. 12:1



The Bona Fide Body

to interact. As a result, these Burkean justifications for BFOQs are
particularly difficult to reconcile with Title VII, a statute that demands
skepticism of, rather than deference to, the status quo.

D. Rehabilitation and Normalization

Although the debate about the purposes of the criminal justice
system continues, 164 the rehabilitation rationale continues to play a
prominent role in the justification of sex-based BFOQs in prisons.
Corrections officials and youth facility administrators have often suggested
that it is critical to "normalize" the environment their inmates inhabit, and
to provide role models to facilitate the recovery and rehabilitation of those
incarcerated. In youth facilities, courts have suggested that young men and
women need advisors and mentors of their own sex in order to be
reintegrated successfully into society. As the criminal justice system
attempts to develop new strategies to deal with an exponentially increasing
number of female inmates, courts have been willing to let states experiment
with rehabilitation programs in their women's prisons. Advocates of the
rehabilitation model of corrections are undoubtedly encouraged by this
trend. An analysis of their opinions suggests, however, that many courts
accept rehabilitation arguments for BFOQs because they provide an
"objective" justification that allows courts to follow their otherwise
subjective instincts against sex integration.

In order to accept BFOQs on the basis of promoting
"normalization," courts have had to develop a particular notion of what
qualifies as "normal." Some courts have insisted that sex integration of the
prison environment will complement the goal of normalization and create a
healthy environment full of rehabilitative potential. 16

' After all, society at
large does not generally operate on a sex-segregated basis. For proponents
of sex-specific hiring practices, on the other hand, "normalization" requires
that certain jobs remain sex-specific even if, as a necessary side effect, all
other components of life become artificially segregated as well.

For example, a California appeals court held that a youth facility
could not simultaneously claim that its goal was "normalization" and staff
its operations in a way that would require cross-sex observation.166 Noting

164 See generally Matthew A. Pauley, The Jurisprudence of Crime and Punishment

from Plato to Hegel, 39 Am. J. Juris. 97 (1994); Nigel Walker, Why Punish? (1991); John
Irwin, Prisons in Turmoil 89-122 (1980).

165 Griffin v. Mich. Dep't of Corr., 654 F. Supp. 690, 704 (E.D. Mich. 1982)

(arguing that complying with the mandate of equal employment opportunity was "in
complete harmony with the so-called 'normalization' or 'stabilizing or softening' theories of
penology").

166 In re Long, 127 Cal. Rptr. 732 (Ct. App. 1976).

2003]



Columbia Journal of Gender and Law

that young men usually do not engage in intimate activities like bathing or
going to the toilet "in the maternal presence," the court found that the Youth
Facility's mission of normalization was directly in conflict with the practice
of cross-sex observation. 167 Rather than "normalizing" the environment, the
court suggested that such a policy would violate the common norms of
privacy present in the larger society. Two years earlier, the same court had
ruled that a woman could not serve as a chaplain in the facility, because if a
male inmate sexually assaulted her, the rehabilitative mission of the facility
would be jeopardized. 68 Not only would the public suffer from "losing the
rehabilitation of a young man,"'169 but the future of the entire ward would be
jeopardized if one inmate committed the assault.1 70 This rhetorical move-
coupling the rehabilitation rationale with the characterization of males as
sexual aggressors and females as sexual victims-provides an excellent
example of how courts can cloak impermissible stereotypes about members
of a particular sex in the sheep's clothing of rehabilitation.

In a psychiatric hospital case, the court rejected the sex
discrimination claims of a woman who had been reassigned to the night
shift, which entailed more housekeeping and less patient-interactive
responsibilities, in accordance with the hospital's sex-specific staffing
policy.' 7' The hospital had argued that "role-modeling" was integral to the
"essence" of its business of treating and rehabilitating emotionally disturbed
adolescents, and that the patients, some of whom had been sexually abused,
would be more likely to confide in staff members of a particular sex based
on the sex of their abusers. The court initially responded positively to the
plaintiffs argument that qualified health care professionals are able to care
for patients of either sex, a position that had "some surface appeal" to the
judges.'72 Ultimately, however, the court ruled that the "vitality of [the
hospital's] business operation" required the use of a sex-based BFOQ. 173

The court seemed particularly influenced by the fact that the institution's
mission was to treat children and adolescents who had been sexually
abused, and claimed that the outcome might have been different if the
institution served a different clientele, such as mentally retarded patients,

167 Id. at 737.

168 Long v. Cal. State Pers. Bd., 41 Cal. App. 3d 1000 (Ct. App. 1974).

1
6 9 Id. at 1014.

170 See id. at 1009 ("Anything which interferes with [the male inmates']

rehabilitation, whether it be a result of their own conduct or that of others, is to be considered
of tremendous import.... Anything which tends to interfere with or impede or frustrate this
[rehabilitative] objective of the institution, must be considered as being adverse to the
interest of the public.").

171 Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir. 1996).

1
72 Id. at 134.

173 Id.

[Vol. 12:1



The Bona Fide Body

where sex-specific staffing would be less appropriate. 74 By coupling the
rationales of sexual victimhood and rehabilitation, the court could justify its
rejection of arguments for equality without explicitly stating that anything
about the applicant's sex rendered her inherently unfit for the job. The
result in the end, however, was still the same.

A series of cases emanating from women's prisons have brought
the rehabilitation justification for BFOQs to the forefront. Perhaps the most
famous of these cases is Torres v. Wisconsin Department of Health and
Social Services. 75 After a reorganization of the state's correctional
facilities, Wisconsin designated certain positions at the women's prison as
female-only. The Department of Health and Social Services (DHSS)
admitted that the new program was not adopted in response to allegations of
abuse by male guards, but rather as an attempt to balance seniority concerns
against the need to keep enough female guards on hand to perform the tasks
limited exclusively to women because of inmate privacy concerns. When
this policy was challenged in court by male guards, DHSS presented three
reasons to justify the BFOQ: the preservation of prison security, the
protection of female prisoners' privacy interests, and the promotion of
prisoner rehabilitation.

76

The court of appeals initially rejected all of DHSS's argument and
noted that, with regard to the state's rehabilitation rationale, there was no
empirical evidence to support its theory that the rehabilitation of female
prisoners would be enhanced by the new policy. In fact, the prison's
superintendent testified that there had been no change in the recidivism rate
in the eight years that the plan had been in effect. 77 Judge Cudahy, writing
for the court, refused to give the state a blank check to "experiment" with
new techniques at the expense of equal employment opportunity. 178 On
reconsideration, however, the Seventh Circuit, sitting en bane, rejected
Cudahy's requirement of empirical support and showed far greater
deference to the "professional judgment" of the superintendent in assessing
how best to achieve the "essence" of the prison's "business"-"the
rehabilitation of females incarcerated in a maximum security institution.' 179

While cautioning against the use of "culturally induced proclivities" in
assessing "our tolerance for distinctions" between men and women, the
court indicated that a recognition of the "perplexing sociological problems"

i4 See id.

17' 838 F.2d 944 (7th Cir. 1988) [hereinafter "Torres I"]; rev'd en banc, 859 F.2d
1523 (7th Cir. 1988) (en banc) [hereinafter "Torres II"].

176 Torres I, 838 F.2d at 949.

177 See id. at 954.
178 See id. at 954 n.7.

179 Torres II, 859 F.2d at 1530.

2003]



Columbia Journal of Gender and Law

facing the criminal justice system called for a greater tolerance of prison
officials' need "to innovate and experiment., 180 As a result, the court
characterized this case as involving more than just a conflict between prison
guards' employment interests and prisoners' privacy rights. Rather, the
achievement of fundamental penological objectives were also at stake.
Because only female guards could assist the prison achieve its goal of
rehabilitation, male guards were inherently unqualified for the positions at
issue in the litigation. 18' Accordingly, the BFOQ "experiment" was left
intact.

Numerous other courts have relied on the "rehabilitation of
women" rationale in upholding sex discriminatory hiring practices. The
rehabilitation rationale, also called "role-modeling," is frequently paired
with arguments about protecting female prisoners' privacy.1 2 The Ninth
Circuit refused to disturb a prison policy to hire only female guards that had
been justified on the grounds of security, prisoner rehabilitation, and
morale. Relying on Torres II, the court deferred to the prison
superintendent's determination that "giving women prisoners a living
environment free from the presence of males in a position of authority was
necessary to foster the goal of rehabilitation especially in light of the
warden's finding that a high percentage of female inmates had been
physically and sexually abused by males."'' 83

This rehabilitation/role model rationale is reminiscent of the
arguments in favor of single-sex education for women. Just as prison
officials have insisted that an all-female staff would positively impact its
rehabilitative mission, many proponents of all-female education have touted
the benefits of enhanced self-esteem and independent thinking that accrue
to women who become accustomed to seeing women in positions of
authority. 184 According to its advocates, single-sex education ensures that
females are not shortchanged when opportunities are made available,

80 Id. at 1528, 1529.

'8 1 See id. at 1530.
182 See Tharp v. Iowa Dep't of Corr., 68 F.3d 223, 224 (8th Cir. 1995). In

accepting the BFOQ in this case, the court added a third benefit-advancing the interests of
female employees, a remedial practice sanctioned (at least in limited circumstances) by the
Supreme Court in Johnson v. Transportation Agency. 480 U.S. 616 (1987). In a footnote,
Circuit Judge Loken noted that the Eighth Circuit had previously forbidden the use of a
BFOQ to deny women employment opportunities in male prisons. See Gunther v. Iowa State
Men's Reformatory, 612 F.2d 1079 (8th Cir. 1980). The Eighth Circuit interpreted
Transportation Agency and its denial of certiorari in Timm v. Gunter, 917 F.2d 1093 (8th
Cir. 1990), cert. denied, 501 U.S. 1209 (1991), as "teach[ing] that a minimal restriction
promoting penological interests, inmate privacy and the employment opportunities of a
protected class does not violate Title VII." ThaM, 68 F.3d at 226 n.4.

183 Robino v. Iranon, 145 F.3d 1109, 1111 (9th Cir. 1998).

184 See, e.g., Comelius Riordan, Girls and Boys in School: Together or Separate?
49 (1990).

[Vol. 12:1



The Bona Fide Body

whether in college-credit academic programs or extracurricular activities. 185

The Supreme Court has never addressed the issue of whether sex-specific
practices can be justified on the grounds of role-modeling. In fact, when the
Court struck down the single-sex program at the Virginia Military Institute,
it specifically reserved the question of whether or not state-sponsored same-
sex education could ever be pass constitutional muster.' 8 6 Consequently, the
status of the role-model rationale is equally uncertain.

In light of the fact that the rehabilitation rationale has been used to
justify everything from drug treatment to shock "therapy,'08 7 courts'
adoption of this argument should be viewed with skepticism. Likewise, the
courts' characterization of women as uniquely amenable to rehabilitative
efforts should not be accepted without question. These recent attempts to
justify special protocols for female prisoners follow in the long tradition of
different standards for male and female inmates. 188 Prior to the 1870s,
society viewed the female criminal as "the archetype of the Dark Lady, a
woman of uncommon strength, seductive power, and evil inclination.', 189 As
a result of reform efforts in the late nineteenth century, however,
correctional officials reconceptualized female prisoners as immature or
developmentally-impaired adults. In many ways, female prisoners continue
to be viewed as children, who simply need care and instruction on how to
perform their "correct" role in society.' 90 In fact, researchers have identified
a tendency among workers in women's correctional facilities to refer to

185 Title IX marked a significant achievement in the quest for gender equality in
education. See 20 U.S.C. § 1681(a) (2002). However, Title IX has not been the panacea that
some might have hoped it would be. See, e.g., Stanley v. Univ. of S. Cal., 178 F.3d 1069 (9th
Cir. 1999).

186 See United States v. Virginia, 518 U.S. 515, 533 n.7 (1996).

187 See, e.g., Edward L. Rubin, The Inevitability of Rehabilitation, 19 Law & Ineq.

343, 367 (2001).

188 For a historical view of the treatment of incarcerated women, see Nicole Hahn

Rafter, Partial Justice: Women, Prisons and Social Control (1985). See also Rebecca Jurado,
The Essence of Her Womanhood: Defining the Privacy Rights of Women Prisoners and the
Employment Rights of Women Guards, 7 Am. U. J. Gender Soc. Pol'y & L. 1, 8-19 (1999);
Human Rights Watch Women's Rights Project, All Too Familiar: Sexual Abuse of Women
in U.S. State Prisons 22 (1996) [hereinafter "All Too Familiar"].

189 See Shover & Einstadter, supra note 135, at 97 (quoting Rafter, supra note

188).

190 See id. at 98; Pollock, supra note 56, at 9, 47 ("Women prisoners are construed
as less harmful and in need of guidance....") (quoting J. Griffith et al., Women Prisoners'
Multidimensional Locus of Control, 8:3 Crim. Just. & Behavior 386 (1982)); "Men seem to
be treated like bad guys and women seem to be treated like kids." Pollock, supra note 56, at
50. These observations are certainly not groundbreaking, and there is a vast literature
regarding the historical difference in the treatment of male and female prisoners, and the
progressive era reform movements concerning women's prisons.

2003]



Columbia Journal of Gender and Law

their inmates as "girls."' 9' Other commentators have suggested that the
infantilization of female prisoners can explain many of the problems facing
the women's prison system, including the imposition of higher moral
standards and increased dependency among female inmates. 192

Some advocates have lobbied for an alternative understanding of
female criminality and consequently a different model for female
corrections by relying on empirical evidence about the female prison
population. Studies suggest that different factors motivate female criminals
and point out that violent crime by women is frequently directed at lovers or
family members. 193 For many of these women, rehabilitation efforts would
focus on teaching them how to engage in healthy, non-violent relationships
with men, and the incorporation of male guards who are committed to this
goal could play an invaluable role in the rehabilitative process. Most courts,
however, have simply accepted prison officials' arguments that the presence
of male guards would inherently thwart rehabilitative efforts.

In many of the cases authorizing BFOQs, courts linked women's
heightened potential for rehabilitation with their histories of victimization.
While it is true that, relatively speaking, a larger percentage of female
prisoners have suffered physical or sexual abuse than have male
prisoners, 194 the phenomenon of prior abuse is by no means unique to
women.' 95 Justice Department reports indicate that 5% of male state inmates
have experienced some form of prior sexual abuse, and an even greater
percentage (13%) has suffered physical abuse. Furthermore, just as feminist

191 See Pollock, supra note 56, at 47 (citing I. Moyer, Prison "Girls": A Study of
Staff Controls of Women in Prison, paper presented at Amer. Soc. of Criminology
Conference, Washington D.C., 1981).

192 See id. (quoting Nicole Hahn Rafter, Prisons for Women, 1790-1980, in 5

Crime and Justice 148 (M. Tonry & N. Morris eds., 1983)).

193 In its report on women in prisons, the Department of Justice attempted to
differentiate the female state prison population from its male counterpart. According to its
study, women are substantially more likely to be serving time for a drug offense and less
likely to have been sentenced for a violent crime. Among those convicted for violent crimes,
women were twice as likely as men to have committed the offense against someone close to
them (36% for women vs. 16% for men) and less likely to commit a crime against a stranger
(35% for women and 51% for men). See Tracy L. Snell, United States Dep't of Justice,
Women in Prison: Survey of State Prison Inmates (March 1994). Approximately one out of
every eleven women confined in a state prison facility was interviewed, and the study did not
analyze the federal prison population.

194 According to a Justice Department study, four out of every ten female inmates
have experienced physical and/or sexual abuse prior to incarceration. See Snell, supra note
193, at 3. Other reports have called the Justice Department's numbers "conservative" and
have estimated that anywhere between 40% and 88% of female inmates have been victims of
domestic violence and sexual or physical abuse (either as children or as adults) prior to
incarceration. See All Too Familiar, supra note 188, at 19.

'95 See Caroline Wolf Harlow, U.S. Dep't of Justice, Prior Abuse Reported by
Inmates and Probationers 2 (April 1999); see also Snell, supra note 193, at 3.

118 [Vol. 12:1



The Bona Fide Body

scholars and groups frequently suggest that the "official numbers"
underestimate the amount of actual abuse that has occurred, 196 the statistics
about past sexual assault upon males should be examined with skepticism.
The Justice Department acknowledges that its data may be distorted by
respondents who "may be unwilling to admit that sensitive events occurred,
may be reluctant to report abuse to others, may distrust interviewers or
surveys, may forget or may purposefully misrepresent."' 97 Considering the
stigma that is still associated with same-sex encounters, it is certainly
plausible that male prisoners may also be underreporting past incidents of
sexual abuse. Therefore, BFOQs grounded in women's "unique" propensity
for rehabilitation because of their prior experiences with abuse rest on
somewhat shaky empirical ground.

One must also pause to consider whether "special" treatment for
female prisoners actually lives up to its promise or whether it merely
perpetuates infantilizing practices from an earlier era. For example, in
many cases, the women's facilities have been placed in isolated rural
regions to "shield inmates from the corrupting influences of the city."' 98 As
noted earlier, female institutions tend to have more disciplinary rules for
inmates, and the rules are often petty.' 99 Because the guard to inmate ratio is
lower in women's institutions, female prisoners are under far more intense
supervision than men.200 As a result, in some penal systems, women receive
almost five times as many citations for disciplinary violations as do male
prisoners, a practice that negatively impacts their eligibility for early release
programs. 20 ' Furthermore, notwithstanding these benevolent arguments
about rehabilitating women, many female institutions still offer far fewer
vocational programs than male facilities. 202

The historically paternalistic treatment of female prisoners renders
suspect the invocation of the rehabilitation rationale as a justification for
avoiding the antidiscrimination mandate of Title VII in the context of the

196 See All Too Familiar, supra note 188, at 19 n.l 8.

197 Harlow, supra note 195, at 2.

198 Rafter, supra note 188, at xxviii.

199 See All Too Familiar, supra note 188, at 23.

200 See Pollock, supra note 56, at 9, 20.

201 See Dorothy Spektorov McClellan, Disparity in the Discipline of Male and

Female Inmates in Texas Prisons, 5 Women & Crim. Just. 76 (1994).
202 See Women Prisoners of the Dist. of Columbia Dep't of Corrs. v. District of

Columbia, 93 F.3d 910, 925 (D.C. Cir. 1996) (comparing the difference in programming
between the male and female prison facilities to the difference in curricular offerings at
Harvard University and Smith College). See also Pollock, supra note 56, at 20-21 ("It is
difficult for states to provide adequate religious, medical and other specialized
institutionalized services to small groups of female prisoners.") (citing L. Bowker, Women
Crime and the Criminal Justice System 229 (1978)).

2003]



Columbia Journal of Gender and Law

criminal justice system. Policies focusing solely on the "special" needs of
women prisoners frequently mask other abuses within the penal system that
are common to all prisoners, thus inhibiting progress toward a more
comprehensive vision of dignity for prisoners. Furthermore, efforts to
rehabilitate prisoners who were victims of abuse should not be directed
exclusively at women. Operating from such a premise further entrenches
the notion that only women are victims of sexual assault. Therefore, BFOQs
justified by the rehabilitation rationale not only limit employment
opportunities, but also erase from view the broad range of experiences of
individuals ostensibly being rehabilitated.

III. UNLEASHING THE POWER OF TITLE VII

The four justifications offered by courts that have accepted BFOQs
all suffer from empirical difficulties and questionable theoretical
assumptions. With this analysis in mind, the question then becomes how
one should think about Title VII in order to achieve the goal of equality
between the sexes. With regard to BFOQs specifically, how do we strip a
set of biological traits of their preemptive power and address the concerns
of privacy or, more importantly, of dignity in a meaningful way?

In order to reconceive long-standing and historically constrained
views about appropriate interactions between the sexes, the BFOQ
exception should be severely limited and the presumption of equality should
be most aggressively pursued in the arenas where individuals are best
positioned to negotiate and bargain about how to meet evolving privacy
expectations-namely, the non-incarcerated world. Rather than relying on
the shorthand of biological sex to justify discriminatory practices, we need
to articulate the values at stake in these cases with greater precision and use
Title VII's mandate of equal employment opportunity to guide the
conversation.

BFOQ jurisprudence as currently conceived neither promotes
equality nor preserves dignity. The cases reveal that judges have been much
more amenable to gender-norm experimentation in environments most
tainted by power differentials and inequality-namely prisons and jails-
with the effect of transforming prison inmates into gender guinea pigs.
Judge Posner has expressed dismay at the willingness of courts to subject
prisoners to social experiments that would not be required of the general
(i.e., non-incarcerated) population. He accuses some jurists of viewing
prison inmates as "members of a different species, indeed as a type of
vermin, devoid of human dignity and entitled to no respect., 20 3 In Posner's
view, this attitude contributes to the courts' lack of sensitivity to allegations
of dehumanizing treatment, resulting in the lack of any "inhibitions about
using prisoners as the subject of experiments, such as the experiment of

203 See Johnson v. Phelan, 69 F.3d 144, 152 (7th Cir. 1995).

[Vol. 12:1



The Bona Fide Body

seeing whether the sexes can be made interchangeable" by "parading ...
male inmates in front of female guards or ... female inmates in front of
male guards," as though they were merely animals in a kennel.2° Therefore,
in Posner's view, the current state of the law merely reflects society's belief
that prison and jail inmates are "scum entitled to nothing better than what a
vengeful populace and a resource-starved penal system choose to give
them., 20 5 As an overwhelming percentage of prison inmates are people of
color, Posner's accusations should also trouble those concerned about racial

206as well as sexual equality.
In order to make sex equality feel more like progress and less like

punishment, the first efforts toward demystifying purported sex differences
should be concentrated in non-incarcerated environments. Unlike prisoners,
individuals in general society are much better equipped to negotiate their
surroundings and adjust their behavior to accommodate their particular
tastes and preferences. For this reason, courts should vigorously enforce
Title VII in the non-incarcerated settings of bathrooms and hospitals, and
should refuse to recognize BFOQs simply to accommodate customers'
views about privacy, which are inseparable from historical notions about
sex.

An example of an alternative model guided by these principles is
the Professional Nurses Registry ("PNR"), discussed in Wilson v. Sibley
Memorial Hospital. °7 Nurses registered with the PNR were assigned on a
first-come, first-serve basis. If a request specified a nurse of a particular
sex, race, religion, or national origin, the PNR informed the inquiring
individual or hospital that the request would not be honored and that the call
would not be accepted. An individual could "reject" a nurse sent by the
PNR for no reason and request another assignment, but would be required
to pay the nurse for the services that would have been provided had he or
she not been rejected. In that sense, the court explained, "an individual may
discriminate, but he must pay for the services that would otherwise have

204 id.

205 Id. Posner cited the current prison and jail population at 1.5 million, but noted
that the number of people who have ever been inmates, many of whom had not yet been or
were never convicted of a crime, was significantly higher. See id. at 151.

206 See Snell, supra note 193, at 2 (reporting that approximately 65% of male and
female prisoners come from communities of color). See also Attica: The Official Report of
the New York State Special Commission on Attica 78-79 (1972) [hereinafter "Attica"]
(discussing indifference of guards to abuses perpetrated against black prisoners); Leo
Carroll, Race, Ethnicity and the Social Order of the Prison, in The Pains of Imprisonment
184 (Robert Johnson & Hans Toch eds., 1982) (noting that, at the time of the 1971 Attica
riot, there were only two minority employees on a staff of over 500, supervising a prison that
was 63.5% black and 9.5% Puerto Rican) (citing Attica, supra, at 490).

207 340 F. Supp. 686 (D.C. 1972), rev'd on other grounds, 488 F.2d 1338 (D.C.

Cir. 1973).

2003]



Columbia Journal of Gender and Law [Vol. 12:1

been rendered., 20 8 In other words, the consumer rather than the employee
must bear the costs associated with discriminatory preferences.

Whereas the PNR forced individuals to pay for their discriminatory
tastes 209 with money, other proposals could exact a non-monetary tariff,
such as time. For example, as group health care becomes more common,
individuals are frequently less able to specify exactly who their health care
provider will be. If HMOs were not permitted to hire their doctors and
nurses in a sex-specific way-which they should not be, according to Title
VII-then the burden and cost of discrimination would be shifted to the
patient with particular and unyielding preferences. Patients must often
accept health services from the first available practitioner. If they are
dissatisfied with the care giver assigned, however, they can suffer the
inconvenience of the delay, and in some instances the additional cost,
associated with matching their preference. Women who prefer female
gynecologists frequently have to wait additional weeks or even months to
schedule an appointment. For many women, however, convenience of
scheduling is more important than the sex of the health care provider. In
other words, acts of discrimination that are currently cost-free may no
longer seem worth the expense when individuals have to pay to
discriminate.10

208 Wilson, 340 F. Supp. at 688. Verne Wilson, a male nurse and a member of the

Professional Nurses Registry, sued when the hospital refused to allow him to treat female
patients. The court found in favor of Verne, insisting that the hospital "accomplished on the
floor of the hospital what neither the hospital nor the patient could obtain by phone from the
Registry"-that is, the ability to reject a nurse without paying him. Wilson, 340 F. Supp. at
688. The court insisted that the hospital should not be allowed to circumvent the safeguards
that PNR had established to prevent exactly this type of discrimination, and found the
hospital guilty of a Title VII violation, granting summary judgment sua sponte in favor of
Wilson. See id. On appeal, the D.C. Circuit found that while Wilson had stated a claim under
Title VII, the district court was in error when it granted summary judgment for the plaintiff
and denied the hospital the opportunity to deny the allegations of the complaint. See 488
F.2d 1338 (D.C. Cir. 1973).

209 Gary Becker first introduced the concept of a "taste for discrimination." See

Gary Becker, The Economics of Discrimination 11, 153-54 (2d ed. 1971) (suggesting that
"individuals are assumed to act as if they have 'tastes for discrimination,' and these tastes are
the most important immediate cause of actual discrimination"); see also William M. Landes,
The Economics of Fair Employment Laws, 76 J. of Pol. Econ. 507, 509 n.5 (1968) (crediting
Becker with developing the concept of a taste for discrimination).

210 Richard Epstein has argued forcefully against antidiscrimination laws on a

similar ground, insisting that discriminatory tastes are inherently more expensive, such that
the market will penalize those who act in an economically irrational (i.e., discriminatory)
manner. See Richard Epstein, Forbidden Grounds: The Case Against Employment
Discrimination Laws 269-392 (1992). On the other hand, discriminatory hiring practices are
rational in the market sense of the term when they accommodate customer preferences.
Therefore, the market will never place incentives on eliminating some forms of employment
discrimination. Under my analysis, antidiscrimination laws work with market forces to
prohibit discrimination that the market does not currently penalize on its own. By prohibiting
employers from discriminating, it becomes more expensive for customers to exercise their



The Bona Fide Body

With regard to the issue of opposite-sex encounters in bathrooms,
one cannot help but recognize that norms have already begun to change,
despite courts' stalwart defense of sex-discriminatory hiring practices.
Unisex bathrooms are fairly common in Europe, and they are beginning to
appear in the United States-further proof that these norms can change. But
even though same-sex bathrooms are still the norm in this country, the
practice of segregating bathroom facilities has come under scrutiny in
recent years. While some justify the sex-segregation of bathrooms on the
grounds that it prevents sexual assault, others have responded by pointing
out that segregation actually makes it easier for would-be attacker to
identify victims. 21' In fact, many parents already bring their children of
either sex into the bathroom they are using for safety reasons. Other
advocates of single-sex bathrooms insist that sex-segregation preserves
privacy. But housing all of the toilets in single-occupancy stalls would
equally satisfy this goal. Therefore, as one scholar has suggested, the
ongoing segregation of bathrooms seems to be driven by a desire to
maintain "that sense of mystery or forbiddenness about the other sex's
sexuality which is fostered by the general prohibition upon public nudity
and the unashamed viewing of genitalia. 21 2

Even assuming that men's and women's restrooms will remain the
standard in the United States for years to come, individuals who are
particularly sensitive to performing these bodily functions in "private"--if
such a thing is possible in a public restroom-will be able to satisfy this
preference by allotting themselves additional time for their bathroom break,
so as to prevent emergencies in the event that the facilities are being
cleaned by someone of the opposite sex at that particular moment. Even
though some individuals may need to adjust their behavior under this

213regime, mere inconvenience does not trump the countervailing command
of equal employment opportunity. College students, for example, are
becoming more accustomed to custodians of either sex servicing communal
bathrooms, and may not suffer any inconvenience at all under a sex-blind
system for hiring janitors.

None of these proposals will lead to the transformation of sex
norms overnight. Non-incarcerated people will still have numerous
opportunities to avoid cross-sex encounters that make them feel
uncomfortable or disturb their notions about how men and women "should"

discriminatory tastes. The market forces can work in tandem with, rather than as a substitute
for, antidiscrimination laws.

211 See Antony, supra note 117, at 5.

212 Id. at 5 (quoting Richard Wasserstrom, Racism, Sexism, and Preferential

Treatment: An Approach to the Topics, 24 UCLA L. Rev. 581 (1977)).
213 Such individuals also include employers who dictate bathroom policies for their

workers.

2003]



Columbia Journal of Gender and Law

act. Nevertheless, curtailing our use of the BFOQ in these settings will
speed up the evolutionary process by making it more costly to indulge one's
discriminatory tastes.

The question of what to do in the prisons, however, remains. In an
ideal world, the pursuit of equal employment opportunity would not come
at the expense of prisoner safety and dignity because guards would operate
according to norms of professionalism and abuses would be prosecuted.1

The notion that the rape of female prisoners can be eliminated solely by
invoking norms of "professionalism," however, seems reckless, or at least
naive. Consequently, any proposal to eliminate BFOQs in women's prisons
will undoubtedly dissatisfy those who believe that rape prevention policies
should not be sacrificed simply to promote some abstract notion of formal
equality.

This Article does not purport to hold the key to ending the rape of
women in prison. One cannot deny that one way to guarantee that men do
not rape women in prison would be to remove all male guards from female
facilities. However, we should not let the BFOQ debate obscure the fact that
prisons are marked by numerous types of physical and dignitary violations,
many of which will not be resolved solely through the use of the BFOQ.

For one thing, female guards are just as capable of abusing power
as men. In Bonitz v. Fair, for example, female prisoners sued for violations
of their constitutional rights in connection with abusive body cavity
searches.2 5 The female officers conducted searches outside the presence of
medical personnel, and "in a [non]hygienic manner," despite clear
regulations prohibiting such practices. 1 Apparently, the female officers
conducted multiple body cavity searches of prisoners' noses, mouths,
anuses, and vaginas without changing gloves. One female prisoner, who
was menstruating at the time, was forced to endure the search while blood
trickled down her leg. Moreover, it is not clear that this case is necessarily
an aberration. For example, in the wake of the terrorist attacks in the United
States, accusations of abuse by male and female airport security officials are
on the rise.217

214 See Bagley v. Watson, 579 F. Supp. 1099, 1104 n.4 (D. Or. 1983) (insisting that

the way to deal with abuses by either unprofessional guards or disruptive prisoners is "not to
limit the employment opportunities of all the female correctional officers, but to take swift
and sure punitive action against the male inmate offenders and to terminate the employment
of the female correctional officers").

215 804 F.2d 164 (1st Cir. 1986).

216 Id. at 169.

217 See, e.g., Kitty Bean Yancey, Passengers Uneasy with Pat-Downs: Air

Travelers Dread Searches that Get Too Intimate - and Embarrassing, U.S.A. Today, Dec. 14,
2001, at Al (recounting tales of abusive treatment by male and female airport security
personnel).

[Vol. 12:1



The Bona Fide Body

The real obstacle to guaranteeing prisoner safety stems from the
unwillingness of those charged with protecting prisoners to take allegations
of abuse seriously. For example, a whistle blower revealed that male guards
in the Boston correctional system were apparently having sex with female
inmates under conditions of ambiguous consent or were trading drugs for
sex.21 8 These events in the Suffolk and Nashua Street jails spawned multiple
lawsuits, including one brought by female prisoners who were impregnated
by male prison guards,2 '9 and others who claimed that they were subjected
to unprotected sex.22° While some might cite this case to lobby for the
wholesale removal of male guards from female institutions, the answer
might not be that simple. First, a female guard had in fact reported these
abuses to her superiors and had publicly complained about the ongoing
sexual interaction between guards and prisoners, but was ignored.221 In fact,
after she lodged her complaints, one of the offending officers was allegedly

222allowed to harass her with impunity. Although many were quick to
denounce the state policies that permitted the use of male guards in female

223prisons, other critics noted that, at the time of these offenses,
Massachusetts was one of eleven states that had not criminalized improper
contact between guards and inmates.22 4 Therefore, this case seems to

218 See, e.g., Andrea Estes, FBI Probes Sex and Violence at Both Suffolk County

Jails, Boston Herald, Oct. 28, 1999, at 28.

219 See Joanna Massey, DNA Tests Ordered for 2 Suffolk Jail Guards, Boston

Globe, Jul. 23, 1999, at B4; Joanna Massey, 3 Guards Fired on Charges of Having Sex with
Inmates, Boston Globe, Aug. 28, 1999, at B3; Francie Latour, 4 Nashua Facility Workers
Are Fired, Boston Globe, Dec. 30, 1999, at B1 [hereinafter "4 Nashua Workers"]; Jack
Meyers, Inmate Saving She Had Sex with Guard Is Pregnant, Boston Herald, July 23, 1999,
at 23; Jack Meyers, Four Guards Barred from Jail in Light of Inmate's Sex Claims, Boston
Herald, July 7, 1999, at 12.

220 See Francie Latour, 4th Guard Fired in Prison Scandal: New Allegation: Drugs

in Exchange for Sex, Boston Globe, Oct. 19, 1999, at BI [hereinafter "4th Guard"]; Francie
Latour, Suffolk Sheriff Shifts Command After Sex Charge, Boston Globe, Oct. 20, 1999, at
BI [hereinafter "Suffolk Sheriff']; Probe of Jail Abuses Widens State Net Capitol Journal-
Massachusetts, Oct. 20, 1999, available in LEXIS, [hereinafter "Probe"].

221 See roeg supra note 220, at 323.

222 See 4th Guard, supra note 220. Felix filed a discrimination and harassment

claim for the abuse she received from Officer Richard Powers and her superiors after she
discovered Powers's love letters to an inmate. See also id.

223 Suffolk Sheriff, supra note 220. After the allegations were made public, Suffolk

County Sheriff Richard J. Rouse appointed a woman, Alice Ertha, to head the female units of
the South Bay facility.

224 See id. The legislature has since made any sexual contact between guards and

inmates a crime punishable by five years in prison, a $10,000 fine, or both. See id.; see also
4 Nashua Workers, supra note 219. Massachusetts's lack of explicit prohibitions on sexual
conduct between guards and individuals in custody was by no means unusual. As of 1996,
only slightly more than half of the states had such laws, and six of those states (and the

2003]



Columbia Journal of Gender and Law

indicate that abuses resulted not only from the presence of male guards but
also from the failure of any effective internal policing mechanism to
prevent abuse.225

One proposal for preventing prison rape, as well as other types of
abuses, would suggest that the answer lies in more observation in these
institutions rather than less. While our prisons and jails are designed to
facilitate the observation and control of inmates, the conduct of prison
guards is rarely subjected to scrutiny. Whether situated in upstate New
York or on the farm at Angola, our prisons are purposefully kept out of
sight and physically and psychologically separated from the rest of society.
Therefore, in one sense, we have preserved the hidden caverns of the
dungeon. To the extent that we are worried about prison guards abusing
their authority-whether by raping prisoners, beating them, or engaging in
other types of dignity-stripping conduct-but are skeptical about our ability
to prevent these abuses, a program of heightened surveillance that subjects
prison guards as well as prisoners to the threat of constant observation may
be the best way to make them police themselves.

Such a proposal is not particularly radical, and has been adopted in
other situations where abusive behavior has been identified. For example,
after the New Jersey state police were accused of conducting racially
discriminatory traffic stops, video cameras were placed in the squad cars in
an effort to stem abuses.2 26 Likewise, criminal justice reformers have argued
that all interrogations and confessions should be videotaped to ensure that
police do not use coercive tactics to secure a waiver of a defendant's
constitutional rights.227 Why, then, could we not also institute a system in
prisons that enables us to observe the observers? Inmates already live under
a regime in which they are made to believe that their every move is being
watched. Therefore, implementing such a system of heightened surveillance
would probably not drastically change the day-to-day existence of prisoners
in any significant way. Prison guards, on the other hand, who were not
already disposed to act in a professional manner would now have the
additional incentive to behave properly out of fear that their conduct would

District of Columbia) had only enacted their laws within the last two years. See All Too
Familiar, supra note 188, at 39-41 & nn.99-102.

225 See also Ford v. City of Boston, 154 F. Supp. 2d 123 (D. Mass. 2001) (class

action where city of Boston is being sued for its policy of subjecting all new female inmates
to strip searches and body cavity searches because all women were being processed through
the maximum security facility).

226 See John McAlpin, New Law Requires Troopers Go Public: Video Tampering

Will Be Prosecuted The Record, Bergen County, Aug. 25, 2001, at A3 (noting that under
new law, "officers who tamper with video cameras that record motor vehicle stops will be
prosecuted").

227 See, e.g., Wayne T. Westling, Something Is Rotten in the Interrogation Room:

Let's Try Video Oversight, 34 J. Marshall L. Rev. 537 (2001).

126 [Vol. 12:1



The Bona Fide Body

be caught on videotape. In a truly ironic twist, the panoptical model used to
control prisoners could now also be used to protect them.

Ultimately, in light of society's unwillingness to dedicate scarce
public resources towards tackling the problem of abuse in prisons, BFOQs
may be the only way to protect female prisoners from sexual abuse by male
guards. No one should assume, however, that such a policy will necessarily
eliminate the broad range of atrocities that are currently perpetrated against
both male and female prisoners. In the meantime, moreover, Title VII's
vision of equality will be sidetracked in exchange for very limited returns.

CONCLUSION

Courts have used the "natural" language of biology in order to
allow real (or simply assumed) customer preferences-for that is ultimately
what they are-to trump claims to equal employment opportunity
regardless of sex. This same language about the "naturalness" of the races
resulted in laws that prevented African-Americans and whites from
mingling socially228 or genetically.229 Rather than acquiescing to these
deeply entrenched and seemingly unquestionable truths about the
"differences" between men and women, we should demand a
transformation in our cultural practices so that individuals of different sexes
can conduct business or provide services in a manner that does not result in
feelings of violation or degradation. Insisting that cross-sex interactions
inherently inflict dignitary harm naturalizes attitudes about sexual predation
and victimization under the guise of accommodating privacy. So long as
cross-sex observation is equated with violation, women and men will
continue to be limited by predetermined roles of social interaction and
involvement in both the marketplace and the community at large. Perhaps
more importantly, physical harm and dignitary violations will continue to
go unaddressed as the reality of same-sex abuse is ignored.

228 See Plessy v. Ferguson, 163 U.S. 537 (1896).

229 See Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955).

2003]