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What Does It Mean to Discriminate Because of ‘Sex?’ How the Legal Meaning of That Word Has Evolved

12 minute read

Words that seem short and simple often conceal the greatest complexity in meaning. The longest entries in the Oxford English Dictionary are not for long words but the multifarious run and set.

The same is true for the word sex, three little letters that remain utterly contentious half a century after they wound their way into the United States’ most historic civil-rights legislation.

A leaked memo, obtained by the New York Times, suggests that the Trump Administration may soon attempt to rein in the word after a long period during which courts have expanded its legal meaning. Critics fear that the proposal, which would define sex as “a person’s status as male or female based on immutable biological traits,” would support the argument that bans on sex discrimination do not protect transgender people. The Obama Administration took the view that the word sex, like an umbrella, also covers gender identity. The subtext of Trump’s reported definition: No, it doesn’t.

The history here, as the saying goes, is complicated.

Supporters of the Administration’s plan have said the new proposed definition is appropriate, because the members of Congress who passed bans on sex discrimination in the 1960s and 1970s did not have protections for transgender people in mind. That’s true. So far as we know, the word transgender was hardly in use, if at all, back then. The lawmakers were thinking about cisgender women, and the men who held sway in the Capitol were deeply divided about giving even that group protected status.

As Congress debated the Civil Rights Act of 1964, the rights of black Americans — and the dominance of white Americans — were the issues of the hour. The man who offered an amendment that would add “sex” to the law’s proposed bans on discrimination was Rep. Howard Smith, a segregationist Democrat from Virginia who had repeatedly stymied legislation that aimed to bring about racial equality. Some historians have suggested that his true intent was to doom the legislation by injecting women’s equality into an already messy fight. Others have said that, while he clearly wanted to complicate what it would mean to pass the law, Smith was a supporter of women’s rights.

However many layers there may have been to Smith’s motivations, the reaction of his colleagues in 1964 was laughter. “I can say as a result of 49 years of experience,” one lawmaker joked, “that women, indeed, are not in the minority in my house. I usually have the last two words, and those words are ‘Yes, dear.’”

The bill passed all the same, with that little word included in Title VII, a ban on discriminating against people in the realm of employment. In 1972 came the addition of Title IX, a ban on discriminating against people on the basis of sex in education. And, though that provision now conjures thoughts of women athletes and NCAA sports budgets, Congress was not focused on locker rooms at the time. The conversation at the outset tended more toward issues like the small number of women who were tenured faculty at universities or accepted into graduate programs, a tide that women such as Supreme Court Justice Ruth Bader Ginsburg swam against.

“In the original conception, it was not a sports law at all,” says historian Susan Ware, who has written about the controversies over Title IX’s implementation. “The flexibility and vagueness of the law in the beginning,” she says, allowed the law to be used in that realm — and others.

In the decades after its passage, says CUNY Law School professor Rick Rossein, its applications slowly expanded. After pushing for equality in sports, advocates used Title IX to fight against sexual harassment on campus, wielding the mere 37 words that make up the law to protect teachers from being harassed by students, students from being harassed by teachers and eventually students from being harassed by other students.

As people debate how narrowly “sex” should be interpreted today, the evolution of Title IX — even as it applies more narrowly to cisgender women — is an example that shows how laws often sprawl beyond their original intents. Trying to use that three-letter word to take on harassment in the courts “was a struggle and a fight,” Rossein says, “the same kind we’re seeing around transgender rights today.”

Those fights are possible because it’s not immediately clear what discrimination on the basis of sex means. Early on, advocates used it to argue that, for instance, female stewardesses couldn’t be fired because they got married or reached a certain age. But what about a man who faces harassment while working on an oil rig because he’s perceived to be effeminate? What about a woman who is fired once her boss finds out she’s a lesbian? What about a high-school student who is denied access to a boys’ restroom because he has an “F” on his birth certificate?

And where is the legal line between sex and gender? And if those are separate things — sex often being defined as biological and gender as something that is socially constructed — does the law cover both equally? “What it means to be discriminating because of sex is the critical question,” says Kimberly Yuracko, dean of Northwestern Law and author of Gender Nonconformity and the Law.

A watershed moment came in 1989, in a Supreme Court case known as Price Waterhouse v. Hopkins. Ann Hopkins, a senior manager at the accounting firm, sued for sex discrimination after she was not made partner. In order to improve her chances, a male colleague had suggested that she “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” From this case emerged the powerful idea that sex stereotyping — discriminating against someone based on expectations about how a man or woman should be — is a form of discrimination based on sex.

For a long time, scholars say, advocates tried and failed to use bans on sex discrimination to protect people who had faced discrimination for being gay. In fact, by making arguments about sex stereotypes in the wake of that decision, civil rights lawyers often had more success when pursuing cases that involved transgender plaintiffs. The language of Price Waterhouse, Yuracko explains, “seemed to focus on self-presentation” more than sexuality.

Plus, Congress had already debated, and chosen not to pass, bills that would have made it illegal to discriminate against gay people. (Today, there is no federal law that explicitly bans discrimination on the basis of sexual orientation or gender identity, though there is widespread misconception that such law exists.) But, because the debate over transgender rights wasn’t yet happening in Congress, there was also “less precedent” of courts saying transgender people were excluded from protection, Yuracko says.

Ilona Turner, legal director at the Transgender Law Center, argues that the relationship between the law and trans rights is obvious. To Turner, “being transgender is impossible to separate from what a person’s sex is” and therefore discrimination related to gender identity is always discrimination based on sex. The reasoning can go more than one way. One is that it is a sex stereotype that all men have XY chromosomes and an “M” on their birth certificate; while many men do, transgender men might not. Another would be to argue that it is a sex stereotype that every person declared to be a girl in the delivery room will grow up to have a female gender identity, along with the desire to wear dresses and makeup.

Turner points to a 2008 case, Schroer v. Library of Congress, as an example. Diane Schroer, a transgender woman, sued under Title VII claiming that she was denied a job because of sex discrimination. Before she transitioned, while still going by a male name, she applied for a position. Well qualified, she was offered the position and accepted. Before starting, Schroer met with the hiring manager and explained that she was transgender and planned to start living as a woman — then the job offer was rescinded. In backtracking, the manager had expressed concerns that Schroer wouldn’t be taken seriously because she would be perceived as “a man in woman’s clothing,” the ruling explains. Schroer won.

Another subtext of the Trump Administration’s proposed definition is that transgender women, for instance, are not really women. Regardless of what one believes, the notion that a person’s anatomy determines how they should feel and act later in life boils down to expectations about sex, the argument goes. In deciding that Schroer had won the case, U.S. District Judge James Robertson expressed thinking along these lines, explaining that sex stereotypes were involved one way or another:

Ultimately, I do not think that it matters for purposes of Title VII liability whether the Library withdrew its offer of employment because it perceived Schroer to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently gender-nonconforming transsexual.

The judge also reasoned that, beyond the stereotypes argument, the case amounted to sex discrimination. Experts who testified in the case had disagreed about whether a person’s gender identity is a scientific component of their “sex.” That was beyond the court’s purview to determine, he said. But, he went on, the precise scientific and philosophical nature of sex did not need to be decided in order to see that sex was involved:

Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer testifies that he harbors no bias toward either Christians or Jews but only “converts.” That would be a clear case of discrimination “because of religion.”

No court would take seriously the notion that “converts” are not covered by the statute. Discrimination “because of religion” easily encompasses discrimination because of a change of religion.

Courts have split on the matter, as they have on the question of whether sexual orientation is covered, and the Supreme Court has yet to give a definitive interpretation of what the word “sex” means when it comes to discrimination against LGBT Americans. The case of transgender student Gavin Grimm was set to press the question last year, before actions by the Trump Administration helped get that case remanded to a lower court.

Earlier this year, the 2nd U.S. Circuit Court of Appeals became the second to recently determine that Title VII, the ban on sex discrimination in employment, also protects gay employees. It changed course from previous rulings and went against a brief the Trump Administration had filed, which argued that the law was not intended to stop discrimination against people like Donald Zarda, a skydiving instructor who was fired after he told a customer he was gay and she complained.

Other courts have found — and LGBT rights advocates have argued — that “sexual orientation cannot be extricated from sex,” as one ruling put it. If, one argument goes, a woman is fired for being a lesbian, she has effectively been punished for being attracted to women when a man would not be punished for being attracted to women. Therefore she has been discriminated against based on her sex or, perhaps, based on the stereotype that women should only be sexually interested in men.

“Legal doctrine evolves,” Judge Robert Katzmann wrote in the majority opinion for the Zarda case. Some of his colleagues who reviewed the case disagreed, arguing that Congress did not intend to protect gay people from discrimination when it passed the Civil Rights Act of 1964. “Not everything that is offensive or immoral or economically inefficient is illegal,” Judge Gerard Lynch wrote in a dissent. “[Congress] did not then prohibit, and alas has not since prohibited, discrimination based on sexual orientation.”

So, in the face of the disagreement among the courts, what does the Trump Administration’s potential definition of “sex” mean? What about the Administration’s reported plan to determine a person’s legal sex by looking at their original birth certificate, unless rebutted by genetic evidence? The effects could be serious for transgender Americans, affecting everything from their ability to seek healthcare to their treatment in the criminal justice system.

But in terms of how it will affect division in the courts, the answers are unclear at this point, says Rossein, the CUNY law professor and an expert in civil rights law. A new definition from the Administration won’t erase precedents that already exist, but it could be used to shape judges’ thinking in current and future ones.

Rossein is confident about one prediction: If and when the Supreme Court decides to determine the meaning of “sex,” it’s much more likely that the ruling will align with the Trump Administration’s way of thinking, now that Justice Anthony Kennedy has retired and Justice Brett Kavanaugh has taken his place. It’s possible, he says, that recent rulings shoring up protections for LGBT people will be “short-lived.”

It is also a safe prediction that the definition will continue to evolve. When editors at the OED revised the definition for the word sex in 2008, revisiting the entry for the first time since the 1980s, the editors extended their explanation for the phrase “third sex,” explaining that there is a notional “division of humanity regarded as analogous to, or as falling between, the male and female sexes.”

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