Sex Discrimination vs. Gender Discrimination: Are They Different?

We often hear the terms “sex discrimination” and “gender discrimination” used interchangeably. But are they actually the same? The answer generally depends on how the phrases are being used.

In this article, we’ll explore sex and gender discrimination in the context of employment law to better understand these concepts as well as their distinctions. We’ll also review the legal principles involved.

If you suspect you’re experiencing employment discrimination of any kind, consider speaking with a qualified employment attorney who can help you determine the best way to proceed.

Let’s begin by breaking down these concepts.

Sex vs. Gender

To appreciate the difference between sex discrimination and gender discrimination, we’ll want to first take a look at “sex” and “gender” on their own.

Sex

Sex generally refers to the biological sex a person is assigned at birth. It’s usually categorized as male or female and is based on characteristics like chromosomes, hormones, and reproductive organs.

Gender

Gender, on the other hand, is more about expression related to social and cultural roles, behaviors, and identities. It relates to how someone feels and expresses themselves, which can be different from their biological sex.

Gender categories tend to be more diverse, too. They include male and female because many people identify as such. But others may feel they’re both, neither, or somewhere in between. As a result, gender also includes identities like transgender and non-binary.

So, in short, sex is about biology, and gender is about identity and expression. But what about discrimination?

Discrimination

Discrimination is when someone is treated unfairly because of certain personal characteristics. Depending on the laws involved, these may include:

• Race/ethnicity
• Sex/gender
• Age
• Religion
• Disability
• National Origin

Sex-based discrimination involves unfair treatment of someone based on that person’s sex. Gender-based discrimination is a type of sex discrimination that targets a person’s gender identity or gender expression.

For example, harassment of someone for being transgender is gender discrimination. But harassing someone because they’re a woman is sex discrimination.

Employment Discrimination

Discrimination in the employment context can occur when a worker or job applicant is treated unfairly because of one or more of their protected characteristics. It may take the form of employment practices or employment decisions in various areas. These may include:

• Hiring
• Firing
• Changing job duties
• Compensation
• Promotions
• Work environments

As a result, sex and gender discrimination in the workplace can take many forms.

Sex-Based Employment Discrimination

Sex-based employment discrimination may cover issues related to sexual orientation, gender identity, transgender status, and pregnancy.

Refusal to hire a woman because she is pregnant is an example of sex-based employment discrimination. Paying a female employee less than a male employee for the same job is also a form of sex-based employment discrimination.

Employment discrimination based on a person’s sex can also include sexual harassment. This involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. It can include:

• Creating a hostile work environment
• Making sexual acts a condition of employment
• Sharing or displaying sexually explicit text messages, images, or emails

The conduct must generally be pervasive or severe to be considered harassment.

Gender-Based Employment Discrimination

Gender-based employment discrimination is a type of sex-based employment discrimination that focuses specifically on gender identity or expression. It tends to affect those who don’t conform to traditional gender stereotypes or who identify as a gender that’s different from their biological sex.

For instance, an employer who refuses to use a non-binary employee’s preferred pronouns may be engaging in gender-based employment discrimination. Similarly, refusing to hire a man who wears makeup because they don’t conform to traditional gender roles is another example of gender-based employment discrimination.

Are Both Types of Employment Discrimination Illegal?

For the most part, yes. Federal law and state laws ban these forms of discrimination by most employers.

Title VII

Title VII of the Civil Rights Act of 1964 (Title VII) is the principal federal law that prohibits employment discrimination. Initially, Title VII protected against discrimination based on race, color, religion, sex, and national origin.

“Sex” originally referred only to biological sex under Title VII. Over time, however, the interpretation of "sex" under Title VII has expanded.

In 1978, the Pregnancy Discrimination Act (PDA) amended Title VII to include discrimination based on pregnancy, childbirth, or related medical conditions as a form of sex discrimination.

And in 2020, the Supreme Court determined in Bostock v. Clayton County that Title VII's prohibition on sex discrimination also includes discrimination based on sexual orientation and gender identity.

As a result, Title VII’s ban on sex discrimination makes it illegal for employers to discriminate against employees or job applicants on the basis of:

• Biological sex
• Pregnancy (including childbirth and related medical conditions)
• Sexual orientation
• Gender identity

Title VII applies to most employers in the country but exempts some small businesses and other limited categories. The U.S. Equal Employment Opportunity Commission (EEOC) enforces the anti-discrimination law.

The Equal Pay Act

The Equal Pay Act of 1963 (EPA) is another federal law that protects workers from sex discrimination. The EPA prohibits wage discrimination on the basis of sex.

It requires equal pay for equal work, regardless of sex. This means the EPA protects men, women, trans, non-binary, and other individuals from sex-based wage discrimination. The EEOC is also the government agency responsible for enforcing the EPA.

State Laws

The states also have their own laws addressing sex-based workplace discrimination. They vary in their protections, but most at least cover pregnancy discrimination. They also provide protections similar to (or in some cases stronger than) federal laws like Title VII.

Some states, like California, have robust laws that explicitly ban sexual orientation and gender identity discrimination. Similarly, the Illinois Human Rights Act specifically prohibits discrimination based on sexual orientation and gender identity.

Other states, like Wisconsin, prohibit discrimination based on sexual orientation, but not gender identity. Still others, like Alabama and Arkansas, have no state laws that protect against sexual orientation or gender identity discrimination.

Regardless of the state-specific laws, however, most employers in all states must comply with Title VII’s federal protections.

Taking Action

Still, sex discrimination continues to occur in workplaces across the country. If you’re the unfortunate target of sex or gender-based employment discrimination, you’ll generally have several options for addressing the problem. They can range from filing a report with your employer’s human resources office to taking private legal action.

You’ll also be subject to various statutory restrictions and procedural requirements for each course of action. Under Title VII, for example, you must file a discrimination claim with the EEOC before you can sue your employer.

Similarly, Title VII and applicable state laws require you to take action within prescribed timeframes or statutes of limitations. Certain state laws can also extend the time period you have to file a Title VII complaint.

Getting Legal Advice

You’ll likely want to enlist the help of a solid employment attorney to help you navigate this tricky legal landscape. A trusted advocate can be invaluable to you at this time. You can speak with them confidentially about your specific situation so they can help ensure the best possible outcome for you under the circumstances.

While taking that first step might be overwhelming, getting the help you need doesn’t have to be. Findlaw’s directory of dedicated employment attorneys can get you started. Just click on your state to view contact, ratings, and other information for area experts. You can also narrow your search by city if you prefer.

Either way, don’t go on this journey alone. Give yourself the peace of mind that comes with informed decision-making.