Guest post: To strike the word “sex”
Originally a comment by Dave Ricks on The single most stunning response.
In the Civil Rights Act of 1964 (CRA64), in Title VII protecting employment for example, it is unlawful to discriminate against an individual “because of” this list of protected characteristics:
race, color, religion, sex, or national origin
Promoters of the Equality Act (EA) say it “completes” the CRA64 by “adding” protections for sexual orientation and gender identity. The public might assume this means the EA would “add” those characteristics to the list like this:
race, color, religion, sex, national origin, sexual orientation, or gender identity
If so, then the word “sex” would still mean the sex binary (as the Supreme Court interpreted “sex” in the CRA64 as recently the 2020 Bostock decision), and we could discuss how some rights may need to be balanced (e.g. between “sex” versus “gender identity”).
But no, in the text of the EA, in Section 7 for employment for example, it says to strike the word “sex” and replace it with the phrase “sex (including sexual orientation and gender identity)”. That would make the list:
race, color, religion, sex (including sexual orientation and gender identity), or national origin
I am not a lawyer, but it seems to me that in the EA: 1) The word “sex” no longer means the binary (undoing 50+ years of case law), 2) The word “sex” is undefined (and I see no preamble to define it), and 3) It is not clear how to talk about balancing rights of “sex” (e.g. female sex) versus “gender identity” with the EA word “sex” undefined.
The ACLU is operating in this framework, where the word “sex” is undefined, so they can simply remove it as superfluous, and protect “gender identity” instead.
President Biden signed an Executive Order on his first day in office to apply the EA wording to all federal organizations. So while the EA is not yet the law for everyone, there is broad support for the EA, including the Biden administration.
Kara Dansky’s book The Abolition of Sex has much more to say along these lines. I have a copy, but I have not read it yet.
Thank you for giving me some clarity on this matter. Trying to paper over conflicts regarding sex by muddying definitions seems to me to be a forced teaming that subordinates women as a sex class. We’ve already seen how that plays out in NCAA Women’s swimming.
This is exactly the argument I have been making to my congressional representative for the last two years: The Equality Act needs to be redrafted, because sexual orientation and gender identity are NOT the same as, or within the definition of, sex. To use the muddled definition effectively repeals protections against sex discrimination. Like banging my head against a brick wall. And he’s a gay man, yet he doesn’t see it.