I think some things need to be clarified/expanded upon. So, consider this a brief overview on the development of legal sex discrimination protections, and the reasons as to why (a) sex discrimination is inclusive of sex discrimination, gender discrimination, gender performance, and sex stereotypes, and (b) why the Pregnancy Discrimination Act had to exist in the first place.
Theories of Sex Discrimination, In 90 Seconds.
When Title VII was first passed, there wasn’t a strong concept of what “sex discrimination” meant. However, through case law, it actually became a very (appropriately, in my opinion) broad categorization. It included both discrimination against biological sex (“No vaginas hired here” is illegal), and sex stereotypes (discriminating against individuals for failure to conform with an employer’s concept of what a man or woman should act like is illegal). The use of sex stereotypes as an argument for categorizing employer action as sex discrimination has become particularly helpful for gender nonconforming and trans* individuals. For example, there has been positive movement regarding the recognition of discrimination against gender nonconforming and trans* individuals as sex discrimination, either because it’s discrimination based on the employer imposing his/her concept of what a man or woman is supposed to be, or discrimination based on the individual’s transition from one gender to another, which is thus inherently linked to the individual’s gender. As a result, sex discrimination has become a legal theory through which advocates can attack many, many forms of sex and gender discrimination. Is it confusing that the law has been using sex and gender interchangeably through the law? Yes. Can it be problematic that the law doesn’t make a strong distinction between sex and gender? Yes. However, it’s the hand we have, and I would say that it’s better - on the ground, advocating for people, and actually making change and making individuals’ lives better - that we have both tools available, even if they’re imperfectly named. I used to have some discomfort over the elision between sex and gender in the law, because it didn’t seem to reflect perfectly what sex and gender were, and could lead to confusion in courts and the law. However, once I actually started working on these issues, it became far more important that we get coverage for people for the clear discrimination they were facing rather than choosing not to use a particular theory because the vocabulary was imperfect.
Why Does the PDA Exist?
Another issue that I think may be informative here is this: why do we have the PDA in the first place? Prior to the passage of the PDA, there was a U.S. Supreme Court case that stated discrimination against pregnancy wasn’t discrimination against women. [Note: this was in the context of the Fourteenth Amendment because it was a California insurance program, but sex discrimination theories and case law are often interchangeable between the public/Fourteenth Amendment sector and the private/Title VII sector.] At the time, an insurance provider refused to cover pregnancy as a form of disability. Obviously, this had a hugely disproportionate effect on women. However, the Court found that the fact that pregnancy vastly affected women didn’t mean that it was sex discrimination - it was, instead, a legitimate decision to cover or not to cover a medical condition (that just so happened to predominantly affect women). The Court, in fact, used the exact same logic as the poster above said, @anachronizomai: “I’m saying that pregnancy affects people who have the ability to become pregnant. That is the class being facially discriminated against.” What’s the problem with this? Laws discriminating against non-suspect classifications (ie: anything but race, gender, illegitimacy, alienage, religion, national origin, and a few others) undergo lower scrutiny. That is, it’s easier for the state to justify such a law, and less likely that such a law will be found to constitute illegal discrimination. Had the Court recognized that pregnancy disproportionately affects women, that failure to cover pregnancy disproportionately affects women, and is in fact discrimination against women the same way that saying “we don’t hire people with vaginas” is discrimination against women, even though not all women have vaginas and not all vagina-ed people are women, then the law would have had to undergo a more stringent analysis, and would have been less likely to be upheld.
So, the Court took a similar tack and refused to recognize that discrimination based on pregnancy is discrimination against women (even if not all women are ones getting pregnant and not all pregnant people identify as women), because of the hugely disproportionate effect pregnancy discrimination has on women and the borderline pretextual usage of pregnancy as a way to discriminate against women without ever saying the word “woman.” Because of this, Congress passed the Pregnancy Discrimination Act. To me, it seems incredibly fitting that a regulation stating that coverage of prescriptions with an exclusion for birth control is sex discrimination comes under the Pregnancy Discrimination Act, which similarly had to state that coverage of medical conditions with an exclusion for pregnancy is sex discrimination.
But What About Disparate Impact?
Disparate impact is a theory that Congress has only placed in some of its laws. It’s meant to target systemic, unintentional discrimination. For example, an employer uses a written test to determine who to hire. The written test, however, has some really skewed pass rates, where white applicants pass at far higher rates than POC applicants. POC applicants then sue under a disparate impact theory, which means they say that the written test has a substantially disproportionate effect based on one of the statute’s protected categories (race, sex, national origin, religion, etc.), and that the qualities being tested are unrelated to the job at issue (ex: you tested me on physics, when the position is sales representative to a clothing store). The business then must show that the test is related to the job at issue (ex: I test you on your ability to carry heavy loads up and down stairs to be a firefighter, where you’ll probably be carrying heavy equipment and people in dangerous situations.) Disparate impact is not per se illegal. It is just a theory by which some individuals can try and use disparate impact as an open door to get at insidious, unspoken discrimination that uses facially neutral standards as a pretextual cover.
Why is this an unhelpful theory for pregnancy discrimination? (1) It’s fallen out of favor and is less and less persuasive. You can use it, but you’re more likely to lose, which helps no one - including your client and your cause. (2) As the SCOTUS case shows, there can be legitimate employer-provided reasons for discrimination based on pregnancy. In that case, the insurance program, I believed, demonstrated that coverage of pregnancy would have been too costly. There’re other instances where the job requires some physical demand that is more difficult for a pregnant person to fulfill. Contrary to disparate treatment theories - where if the employer treats you in a discriminatory manner, it’s not OK - disparate impact theory merely gives the plaintiff the opportunity to allege that the action was discriminatory, and the employer can bring forth a variety of seemingly neutral and non-discriminatory reasons for their behavior. If they convince the court, they win.
TL;DR (but really, please read the longer sections)
(1) Failure to recognize actions that disproportionately affect a suspect group, and that is often used as a pretext for discriminating against that suspect group, as discrimination against that suspect group is harmful to those individuals who get screwed over by employers and to the suspect group as a whole.
(2) The term “discrimination against women” is not meant and has not been read to narrowly mean discrimination against women. It is discrimination based on biological sex, on gender identity, on gender performance, and on gender stereotypes. It also is meant to target the prejudices of the employer, and is not meant to cast any assumptions or identities on the victim of discrimination. See, for example, the following instances (which I’m paraphrasing from cases).
- Employee on an oil rig got sexually harassed by his co-workers because he was seen as insufficiently manly. It didn’t matter whether or not the employee actually was “unmanly” or “effeminate” (actually, he was pretty conforming to concepts of masculinity), it just mattered that the aggressors thought he was, and that this belief triggered the harassment.
- Employee is harassed by, among other actions, the constant receipt of “effeminate” gifts because it’s believed the employee is gay, and thus effeminate. It doesn’t matter if the employee is effeminate or gay, it merely matters that the aggressor thought he was, and that this belief triggered the harassment.
- Employee does not get promoted because she was too masculine and “needed a lesson in charm school.” It does not matter whether or not she is actually masculine or violated an objective standard regarding her failure to conform with feminine stereotypes. All that matters is that the employer believed that she was insufficiently feminine from his standard of femininity, and then took discriminatory action against her because of that belief.
How does this compare? When an employer refuses to cover pregnancy, it’s often a pretextual cover for discrimination against women in the employer’s mind. It doesn’t matter if the affected employee identifies as a woman; the employee is still a victim of the employer’s prejudicial belief and resultant discriminatory action. Failure to recognize that pregnancy is often discrimination against women will not lead to a more PC version of the law - it would lead to reduced protections against pregnancy discrimination, because “people who can get pregnant” do not constitute a suspect classification, and thus more discriminatory actions will be considered permissible.
The Super TL;DR: Please don’t bring us back to 1974 (the year that SCOTUS case was decided) because you want a law that is not meant to and does not cast light upon the identity of the victim to fit perfectly with the victim’s self-identity.
Hello! Thank you for your helpful and thoughtful reply. I have some (genuine, information-seeking) questions, if that’s okay.
A. You say that sex discrimination and gender (performance) discrimination are largely conflated in the law. Would it be reasonable to assume, then, that while the law may not carefully distinguish between them, “sex” and “gender” both become suspect classifications? That is to say, discrimination based entirely on physicalities of “biological sex” is suspect, and discrimination based on opposition to certain kinds of gender performance (esp. femininity) is also, regardless of the body of the person performing it? (I think this is what you are saying, I just want to confirm. Biological sex = suspect classification; social gender also = suspect classification.)
B. You use the phrase “hugely disproportionate effect” to explain why pregnancy discrimination is discrimination against women. Is “hugely disproportionate effect” sufficient to move discrimination from “disparate impact” to “facially discriminatory”? That is, does facial discrimination require an actual, inherent, direct link? Or is “hugely disproportionate effect” enough?
C. If discriminating against biology alone, regardless of what gender adheres to the body, is suspect, as in your “no hiring of people with vaginas” example, I have a few more questions there. If it’s illegal to refuse someone a job because they have a vagina, I would presume that it is also illegal to treat them poorly once hired because they do. If we replace “vagina” with “uterus,” then, it would seem that it would be illegal sex discrimination to treat employees worse than their coworkers simply because they have (or had) a uterus. Medical care related to pregnancy and hormonal contraception is care needed by people who have uteri. Refusing only that care, then, would be discrimination against a suspect class, yes?
D. I still think it’s fair to object to the categorization of “discrimination against people with uteri” as “discrimination against women.” If, per my question in A., either sex or gender discrimination can be grounds for legal action, even if courts conflate the two, we aren’t obligated to, are we? I support the idea that refusing hormonal contraception is (and should be) illegal discrimination. But it isn’t clear to me that it would be any less possible to name it as such without conflating certain kinds of bodies with “womanhood” or “manhood.”
My objection is not and has never been to the outcome that the administration is seeking. My concern is the message that it sends when we unnecessarily mix terms when it comes to gendered terms (woman, man, etc) and sexed ones.
(I appreciate your time, and apologize in advance if there are places where my questions don’t make as much sense as I’d hoped given that I’m not a lawyer.)
Hi! I’d be happy to field your questions, and appreciate them, as they made me think more carefully about our current theories of sex and gender discrimination. I’ll try my best to answer them - and to indicate when I’m supplying in my own theory as to the development of sex discrimination. Also, I’m sorry it took so long! I let the post sit for a few days before reviewing it, and also have been preparing to move cities tomorrow.
Would You Say There’re Two Suspect Classifications - One for Biological Sex, and One for Gender?
So, this is the fundamental question that I thought about the longest, the answer to which I think affects my answers moving forward. I’m 99.999999% sure that a law saying “no vaginas allowed” would be illegal sex discrimination, but the question that your question cuts to is, “why?”
Thinking back, the vast majority of cases about sex discrimination I’ve seen have instead revolved around gender expression and gender stereotypes - are women more responsible than men and therefore allowed to drink at a younger age, is it OK to have a “professional” dress code that requires women to wear make-up, etc. Then there’re some cases that discuss women as a group, but don’t discuss who fits into the category of “women” - is it OK that the women’s prison gets less funding than the men’s prison, is it OK to have public military colleges that only allow men, etc. However, there are very few cases - none that I can think of - that discuss biological characteristics outside of the context of the cultural gender role with respect to sex/gender discrimination. The closest I can think of is a case from at least a few decades ago where a woman who was assigned male at birth sought to marry a man, and the question was whether the law should recognize her as a woman (how she identified and presented) or as a man (how she was assigned at birth) in determining whether her marriage was different-sex (and therefore legal) or same-sex (and therefore illegal). There, the court focused on the fact that she had bottom surgery, and thus could perform penile-vaginal intercourse; as a result, the court found, she was a woman and her marriage was valid.
All of this goes to say - and this is me theorizing - that I think sex/gender discrimination currently covers sex discrimination because any cases that have addressed it have considered biology as it relates to the gender role. That is, “no vaginas allowed” is discriminatory, not just because it discriminates against vaginas, but because vaginas are considered linked to the gender “woman.” Granted, it - just as any other aspect of womanhood - is not definitional. Not all women have vaginas; similarly, not all women are “charming” or wear skirts, not all women are incapable of qualifying in a man’s physical fitness test for the military, etc.
[Sidenote: There is something I find uncomfortable about the fact that, the more we bring cases regarding gender discrimination, often the more courts are put in the place of determining what is a gender stereotype, and what it means to be a woman.]
So, are there two suspect classifications? I would say not really, because I think one is nested inside the other - that is, biological sex discrimination is currently nested in gender discrimination. For example, refusal to provide pap smears is sex discrimination. If biological sex is a stand-alone category, I could walk into court, and say “this is discriminatory because VAGINA.” Vagina would be the magical word that triggers biological sex, and puts me in intermediate-scrutiny/Title VII land. However, my intuition is that a court would not accept “vagina” alone. I would have to walk into court and say, “this is discriminatory because vagina, and because vaginas —> woman.” Woman, then, is the triggering word. (More likely, as I review my post, I would say “VAGINA,” and a court would imply “à women”.)
There is also the side-issue - if biological sex is alone a suspect classification/individually protected, what does it cover? Does it mean purely chromosomal XX? Does it cover sex organs? Primary or secondary? Each definition may be both over-inclusive and under-inclusive, as there are females with/without each of these. Similar to the oddness of putting a court in the position of determining what a gender stereotype is and what it means to be a woman for the purposes of the law, I wonder if more clearly delineating what qualifies as biological sex would have a crystallizing effect on the definition of female and male.
At What Point Does A Facially Neutral Classification Constitute a Gender Classification?
This would be an instance where constitutional law and Title VII would diverge. Under constitutional law (which only applies to state actors), if the law is neutral on its face, it’s constitutional, even if it’s applied in a prejudicial manner. This was established by a case called Yick Wo, which is over a hundred years old, but is still good law as of today. There, SCOTUS upheld a San Francisco ordinance that prohibited laundromats in wooden buildings without a permit. The law was neutral on its face - if you have a wooden laundromat, you get a permit - but (unsurprisingly, given the amount of anti-Asian sentiment at the time) was enforced in a highly prejudicial manner. Chinese individuals owned a high proportion of these laundromats, and very rarely received permits. Because the law was neutral on its face, however, the state could continue to (discriminatorily) enforce the law without violating the Fourteenth Amendment.
Conversely, in the private sector under Title VII, there are methods by which facially neutral employer practices that discriminatorily affect protected groups can be attacked. One example is disparate treatment - “the practice looks facially neutral but is used discriminatorily because the actors are prejudiced” - and disparate impact - “the practice was employed neutrally and was implemented with the intent that it be neutral, but its effects nevertheless lead to a discriminatory effect.” Going more directly to the question, “hugely disproportionate effect” is not a method by which one can transfer a “disparate impact” claim into a “disparate treatment” claim. However, it is a statement that can aid in a disparate impact claim by showing that there is discriminatory effect, and it is a statement that can help a court infer discriminatory intent in a disparate treatment case. (“The partnership keeps saying that they don’t have the resources to appoint new partners, but have appointed 15 male partners and 0 female partners in the past 2 years. Just saying.”)
At what point a facially neutral classification is seen as gender/sex discrimination, however, depends on the court and the jury, as it’s a question of fact and determined by the case’s own facts and situation. Thus, for a disparate treatment claim, the fact-finder would have to determine that there is a link between the neutral classification and the suspect classification alleged. (Again, I’d avoid disparate impact theory for now, because it is another beast and the postures of those theories are slightly different.) However, I do think there’re certain classifications that - even if no presumption legally exists - create a presumption in the minds of most rational people, because it’s hard to imagine what else an employer would mean other than to discriminate. “No natural hair,” for example. “No vaginas.”
Can We Characterize Failure To Provide Birth Control As Discrimination Against People With Uteri?
So, if my theory as to the development of sex/gender discrimination is correct, there are a couple ways this could go. (A) The court says people with uteri are not a protected class and does not constitute sex discrimination [this would be some analytical form like that of the pregnancy SCOTUS case]. (B) The court says people with uteri are a protected class, recognizing that uteri are central to biological sex (but somehow avoids the common line of women -> reproduction -> sex organs), or (C) The court says that discrimination against people with uteri is sex discrimination, because predominantly women have uteri.
Again, all the arguments can be made. However, I think the needle of (B) would be hard to thread for a court without resorting to “what does it mean to be a woman” “having a uterus is one of the things that it can mean to be a woman” “uterus —> woman,” and I think this stems from the underlying fact that biological sex discrimination is currently nested inside gender discrimination. My guess is this outcome is the exact opposite of what you’d like, which is to divorce concepts of gender from biology and plumbing.
What Are Other Options To Address the Conflation of Sex and Gender in the Law?
I added this section - I hope you don’t mind! I think that scholars and practitioners have come a long way in terms of understanding the distinction between sex and gender. Granted, the communal level of knowledge is by no means perfect, but there’ve certainly been leaps and bounds in the past few decades. I remember that our professor covered the sex/gender distinction in our general Con Law class, and I’m sure it came up in Employment as well when we discussed employment discrimination. So there is the fact that as the legal community continues to grow and age, more older individuals - more judges and more politicians etc. - become more aware of the distinction and can proceed forward more carefully. Continuing to bring awareness to the sex/gender distinction and the importance of respecting the distinction is definitely, I think, the most important piece for influencing legislation going forward.
Another option is to bring cases to start developing a theory of biological sex discrimination divorced from gender. However, I think there’s a consideration that would counsel against making this a primary focus for litigation; it stems from the ethical issues that are often implicated in impact litigation and social change through litigation.
Namely, one reason I would be cautious about litigation is that, if there’s discrimination based on biological sex, it’s likely already legally covered. However, it might be covered based on a “XXX —> woman” rather than “XXX is biological sex issue.” As an advocate, you wouldn’t want to risk your client’s likelihood of success by only bringing the “XXX is biological sex issue” argument, and if you bring both, “XXX —> woman” is far more likely to be persuasive because there’s currently more cases and more precedent in that area. Litigation can definitely bring both arguments, but there’s a tension between wanting your reasoning - as an advocate - to govern the case and wanting your client to be successful.
This does remind me, I think there was a sexual harassment case that categorically covered the touching of sex organs/genitalia as sexual harassment. I might try and think of whether there’s a way to use that case to develop a more robust “XX as biological sex” argument because it is the closest case I can come up with, currently, that focused on the biological sex without reference to gender. However, the obvious weakness is that it’s a case that’s a little off in left field.