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.)