Simply Sex? Distinguishing between sex, gender, gender identity, and gender expression.


The Fair Employment and Housing Act (“FEHA”) makes it an unlawful employment practice to discriminate, harass, or retaliate against employees based on a protected class.  FEHA also requires that employers take all reasonable steps to prevent and remedy illegal discrimination and harassment in the workplace.  The FEHA regulations were recently amended, effective April 1, 2016, and clarify that taking all reasonable steps includes an affirmative duty to develop a written harassment, discrimination, and retaliation prevention policy that lists the protected classes.  Some of the protected classes need little explanation (race, religious creed, national origin), but others, like “sex,” “gender,” “gender identity,” and “gender expression,” are not so straight-forward.

There is a difference between sex, which is determined at birth (e.g., male or female), and gender, which is an individual’s sense of self, but the distinction is blurred by the legal definition of the terms under FEHA.   FEHA defines “sex” to include pregnancy, childbirth, breastfeeding, and medical conditions relating to those conditions.  FEHA also defines “sex” to include “gender,” including “gender identity” and “gender expression.”  Consequently, discrimination based on gender, gender identity or gender expression would also constitute discrimination based on sex.  On the other hand, discrimination based on sex may or may not also constitute discrimination based on gender, gender identity, or gender expression.

Gender identity and gender expression are different, too. Under FEHA “gender identity” means “a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.”  “Gender expression” means “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”  In other words, an employee’s gender expression may or may not match the employee’s gender identity.  For example, an employee whose birth sex is male and identifies as female may present at work as female or as male.  How that employee presents at work (as male or as female) does not affect the employee’s gender identity as female.
The new regulations also define “transgender,” which means “a person whose gender identity differs from the person’s sex at birth.”  The employee in the example, therefore, would be a transgender employee because the employee’s gender identity (female) is different from the employee’s birth sex (male).  Additionally, keep in mind that sexual orientation (e.g., heterosexuality, homosexuality and bisexuality), which is another protected class under FEHA, is not connected to an employee’s gender.  This means that employees whose gender differs from their birth sex may be heterosexual, homosexual, or bisexual just like employees whose gender identity is the same as their birth sex.

At a minimum, employers should ensure that they have written harassment, discrimination, and retaliation prevention policies.  Employers should also educate their employees about the differences between the various protected classes, such as sex, gender, gender identity, and gender expression.  In addition to written harassment, discrimination, and retaliation prevention policies, employers might also consider stand-alone gender policies that answer common questions concerning gender non-conforming employees, and that provide guidance concerning the procedures to change names on employment records, the pronouns to use to refer to employees, the use of restrooms, employee privacy, dress codes and health benefits.  Employers may also consider workplace transition plans to guide them when employees transition from one gender to another in the workplace.

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