Rosa V. Park West Bank: Do Clothes Really Make the Man?

Katherine M. Franke, Columbia Law School


What is a question of gender discrimination a question of? How is gender-based discrimination to be differentiated from sex-based discrimination? Or is Justice Ruth Bader Ginsburg correct in using these two terms interchangeably? Why are some courts so obstinate in confusing gender bias with sexual orientation bias? What, in the end, do sex, gender and sexual orientation based discrimination have to do with one another? How do gender, sex and sexuality norms get enforced through sartorial conventions? In the Summer of 1998, Lucas Rosa was denied a loan application by a loan officer at Park West Bank in Western Massachusetts. Rosa was told that she was denied an application because she failed to dress in sufficiently masculine clothing - given that she was a biological male. Rosa, a cross-dressing male, brought a sex discrimination action in federal court under the Equal Credit Opportunity Act, however her complaint was dismissed by the trial court on the grounds that clothing had nothing to do with sex discrimination. On appeal, the First Circuit reversed, finding that Rosa has stated a cause of action under the ECOA. The Michigan Journal of Gender & Law has published the principal and amicus briefs to the First Circuit in Rosa's case - as well as an introduction to the case and conclusions about the First Circuit's opinion.