On the Basis of Sex, Gender or Both
Previously in this publication I discussed the case of Price Waterhouse v. Hopkins, the landmark Supreme Court case that held that the requirement that an employee conform to sex stereotypes is “gender discrimination.” I pointed out that the opinion used the terms “sex” and “gender” interchangeably, as if there was no discernible difference between the two. The Hopkins case was not the first, nor the last: the blurring of the two terms originated in 1974 with the Geduldig case. About 50 U.S. Supreme Court decisions mention sex and gender in the same sentence or use them interchangeably within the same paragraph. The question arises: is this semantic confusion inherently problematic?
A plausible origin story for the use of “gender” in place of “sex” in court decisions was explained in the 2018 Ruth Bader Ginsburg biopic “On the Basis of Sex,” a secretary’s queasiness with having to repeatedly type the word sex resulted in her suggestion to RBG to use, instead, the rather tame term “gender.” Today, with the separation of our understanding of sex and gender, and with the resulting publicity of various gender-related issues populating the political news cycle, this doctrinal lack of clarity and its resulting mischief may become untenable and in need of normative reform.
In 1994, Justice Scalia, astute as ever, pointed out the issue in J.E.B. v. Alabama:
“The word ‘gender’ has acquired the new and useful connotation of cultural or attitudinal characteristics (as opposed to physical characteristics) distinctive to the sexes. That is to say, gender is to sex as feminine is to female and masculine to male. The present case does not involve peremptory strikes exercised on the basis of femininity or masculinity (as far as it appears, effeminate men did not survive the prosecution’s peremptories). The case involves, therefore, sex discrimination plain and simple.”
As several state legislatures came to understand that discrimination based on biological sex is just as insidious and worthy of scorn as discrimination based on sex-stereotypical or “gendered” expectations, the terms “sexual orientation,” “gender identity,” and “gender expression” are now being added to the bases of protected classifications in state antidiscrimination statutes. Nevertheless, the blurring of terms carrying different legal meaning at the highest court may hinder our collective understanding of the nuanced difference between sex assigned at birth, and gender (i.e., as individuals understands themselves). The most recent skirmishes in the gender politics trench war regarding transwomen’s bathroom use and some collegiate sports teams’ exclusions of transwomen from women’s teams shows the shortcomings in the public’s grasp of this nuance.
In 1974, Geduldig failed to see the nature of sex-based discrimination in pregnancy discrimination when it held that pregnancy discrimination is discrimination between “pregnant women” and nonpregnant ones, when it infamously glossed over the issue by naming the second category “nonpregnant persons.” In 1978, Geduldig’s holding was superseded by legislation; its problematic analysis, however, remains on the law books and continues to exert a cost on women’s equal rights and liberty. Similarly, today, the definitional lack of clarity of the interrelationship between “sex” and “gender” may come to fatally blend the issues exposed in bathroom use and athletic team restrictions, let alone in future legal issues we can’t conceive as of yet. We can conceive of a case holding, in Geduldig’s vein, that restricting women’s bathrooms only to females who were assigned female at birth (“AFABs”) does not discriminate between females and males, therefore it is not sex-based discrimination. So far, we have narrowly escaped this fate. In Bostock v. Clayton County, Georgia, the Supreme Court held that firing individuals because of their sexual orientation or transgender status violates Title VII’s prohibition on discrimination because of sex. Justice Gorsuch based this decision on a seemingly “strict textualist” argument concluding that the prohibition of discrimination “because of …sex” includes discrimination “intrinsically related to sex,” such as sexual orientation.
In his dissent, Justice Alito pointed out that “until 2017, every single Court of Appeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex.” Thus, Justice Alito argues, convincingly, the decision is not based on a “strict textualist” analysis. However, Justice Alito would find that discrimination based on the homosexuality of an employee has nothing to do with the employee’s sex: “In cases involving discrimination based on sexual orientation or gender identity, the grounds for the employer’s decision—that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women.” This last sentence reads perilously close to Geduldig.
The Bostock majority understood, however, that the term “sex” in Title VII at its enactment in 1964 meant both the individual’s biological sex as well as their gender. Homosexuality and transgender status does not stand wholly apart from “sex” to form just another basis of discrimination, like, for example, religion or race. The precise untangling of the two terms is not doctrinally possible, no matter how much we would like to see more doctrinal clarity at our highest court.
It is easy to see that discriminating in public bathroom use against transwomen based on their assigned sex at birth (and potentially saddling them with a misdemeanor conviction for trespass) would be antithetical to the spirit of federal antidiscrimination laws. Even without being alarmist about the likelihood of the above-described outcome, one can clearly see that assigning bathroom use based not on “sex” but on “gender” would greatly benefit the trans community’s right to self-identify in one of the most private matters of daily life.
The varsity and collegiate athletic teams sorting of student athletes based on their sex assigned at birth is a thornier issue, mainly because many “inherently biological” traits are involved in one’s athletic performance. Nevertheless, just as women admirably acquitted themselves in becoming astronauts, deep sea excavators, and in a myriad other previously unthinkable capabilities, we could perhaps trust that women’s athletics would not collapse into a “transwomen’s free-for-all” for allowing trans participation in women’s sports. Telling a transwoman that she must compete with men—or not at all—is, again, antithetical to Title IX’s original mission of allowing women to compete on equal footing with men in student sports teams. This is especially so because trans men are, apparently, not asked to make the same sacrifice. Additionally, continuing to identify a transwoman as a man because of the composition of her chromosomes discriminates further and now on a cellular/genetic level, not far from the genetic discrimination forbidden by the Genetic Information Nondiscrimination Act (“GINA”).
One can only hope that future decisions of the federal judiciary will continue assigning a broad meaning to the term “based on sex” in anti-discrimination statutes, in alignment with the public policy of their enactment. One must also be cautious in the use of interrelated, but not entirely interchangeable, terms such as “sex” and “gender.” After all, almost 60 years passed since the enactment of the word “sex” in Title VII: we no longer need to be squeamish or prudish, especially when we have admirable reasons for both linguistic clarity and that of purpose.
 490 U.S. 228 (1989)
 Marta Vanegas, Women in the Workforce, CONTRA COSTA LAWYER (Aug. 1, 2013) pp. 19-20 & fn. 15 (“The court held that the requirement that an employee conform to sex stereotypes is gender discrimination, while using the terms sex and gender interchangeably in the opinion.”)
 See discussion infra, at note
 511 U.S. 127
[J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 157 n.1, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994).]
 See, e.g., Cal. Gov. Code § 12940 (a); Col. Rev. Stat. § 24-34-402(1)(a); Conn. Gen. Stat. §46a-51 (2012).
 Notably, both situations appeared in the media to be restrictions against transwomen in spaces assigned to women, and not against trans-men in men’s spaces.
 Geduldig v. Aiello (1974) 417 U.S. 484, 496, fn. 20 [94 S.Ct. 2485, 41 L.Ed.2d 256].
 Congress overturned Geduldig’s holding with the Pregnancy Discrimination Act of 1978 (Pub. L. No. 95-555, §1, 92 Stat. 2076 (1978) (codified at 42 U.S.C. §2000e)).
Shannon E. Liss, The Constitutionality of Pregnancy Discrimination: The Lingering Effects of Geduldig and Suggestions for Forcing Its Reversal (1997) 23 REVIEW OF LAW & SOCIAL CHANGE 59, 62 (“This anomalous doctrine not only has practical detrimental implications in a variety of legal settings, but it also creates a conceptual barrier to the development of a more progressive feminist approach in the Supreme Court’s jurisprudence.”); Maya Manian, Griswold, Geduldig, and Hobby Lobby: The Sex Gap Continues (2015) 69 U. Miami L. Rev. Caveat 17, at n. 6 (2015) available at https://lawreview.law.miami.edu/the-sex-gap-continues/ (“The Court’s disassociation of sexual liberty, reproductive liberty, and gender equality from one another has impoverished all three interrelated aspects of a woman’s right to equal citizenship.”)
 Maya Manian, Commentary on Geduldig v. Aiello (2016) Contributions to Books, 330 (available at https://digitalcommons.wcl.american.edu/facsch_bk_contributions/330) (in FEMINIST JUDGMENTS: REWRITTEN OPINIONS OF THE UNITED STATES SUPREME COURT (Linda Berger, Bridget Crawford & Kathy Stanchi, eds., Cambridge University Press 2016)).
As lawyers, we understand prophylactic use of certain provisions to prevent future adverse outcomes.
(Bostock v. Clayton Cnty. (June 15, 2020) __ U.S. ___; 140 S.Ct. 1731.)
 Ibid. (emphasis added).
 Justice Alito argues that the term “sex” in Title VII does not include sexual orientation (and, presumably, doesn’t include gender identity or gender expression). He would also declare that Price Waterhouse, supra note 1, does not hold that Title VII forbids all sex-stereotyping, only certain ones: “Plaintiffs who allege that they were treated unfavorably because of their sexual orientation or gender identity are not in the same position as the plaintiff in Price Waterhouse.”
 Genetic Information Nondiscrimination Act of 2008, P.L. 110-233, 122 Stat. 881 (prohibiting discrimination on the basis of genetic information with respect to health insurance and employment).