The Wayward Explorer

1. If your eyes follow the movement of the rotating pink dot, you will only see one color, pink.

2. Green Catastrophe: If you stare at the black + in the center, the moving dot turns to green.

3. Reality Shatter: Now, concentrate on the black + in the center of the picture. After a short period of time, many if not all of the pink dots will slowly disappear, and you may only see a green dot rotating.

I repressed my urge to sarcastically answer, and said “Nope, I just enjoy saying hi to everyone!” To which he responded, “Oh, so you weren’t flirting with me then.”

Dude, I’m not flirting with your gross 7am-on-a-Sunday-ass, trust me.

My defense mechanism when I’m uncomfortable at work is to smile, so I did that and said “Is there anything I can get you this morning?” to which he responded,

"There, you just smiled! What does that mean?"

At this point I was fed up, so I said, 

"I smile at everyone sir, its just what I do. What can I get you, coffee, a bagel?"

And he said “I’m gonna be watching to see if you smile at everyone. I don’t like it when girls lie to me” and then ordered a coffee and a muffin like he hadn’t just said something at 11 on the “Is this guy a serial rapist” scale (where 0 is ‘no’ and 10 is ‘Yes, run away as fast as you can right now.”).

Then he sat there for another hour and a half, staring at me from his table. When he got up and left he came back to the counter, and said “You do smile at everyone. That’s fucked up.” and walked out.

I can’t even be innocuously polite and pleasant to people at my job (where customer service is the number one thing we are supposed to be focusing on) for fear of this shit happening. What happens if he had decided to wait until my shift was over? 

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.

Would You Say There're Two Suspect Classifications - One for Biological Sex, and One for Gender?

So, this is the fundamental question that I thought about the longest, the answer to which I think affects my answers moving forward. I'm 99.999999% sure that a law saying "no vaginas allowed" would be illegal sex discrimination, but the question that your question cuts to is, "why?" 

Thinking back, the vast majority of cases about sex discrimination I've seen have instead revolved around gender expression and gender stereotypes - are women more responsible than men and therefore allowed to drink at a younger age, is it OK to have a "professional" dress code that requires women to wear make-up, etc. Then there're some cases that discuss women as a group, but don't discuss who fits into the category of "women" - is it OK that the women's prison gets less funding than the men's prison, is it OK to have public military colleges that only allow men, etc. However, there are very few cases - none that I can think of - that discuss biological characteristics outside of the context of the cultural gender role with respect to sex/gender discrimination. The closest I can think of is a case from at least a few decades ago where a woman who was assigned male at birth sought to marry a man, and the question was whether the law should recognize her as a woman (how she identified and presented) or as a man (how she was assigned at birth) in determining whether her marriage was different-sex (and therefore legal) or same-sex (and therefore illegal). There, the court focused on the fact that she had bottom surgery, and thus could perform penile-vaginal intercourse; as a result, the court found, she was a woman and her marriage was valid.

All of this goes to say - and this is me theorizing - that I think sex/gender discrimination currently covers sex discrimination because any cases that have addressed it have considered biology as it relates to the gender role. That is, "no vaginas allowed" is discriminatory, not just because it discriminates against vaginas, but because vaginas are considered linked to the gender "woman." Granted, it - just as any other aspect of womanhood - is not definitional. Not all women have vaginas; similarly, not all women are "charming" or wear skirts, not all women are incapable of qualifying in a man's physical fitness test for the military, etc. 

[Sidenote: There is something I find uncomfortable about the fact that, the more we bring cases regarding gender discrimination, often the more courts are put in the place of determining what is a gender stereotype, and what it means to be a woman.]

So, are there two suspect classifications? I would say not really, because I think one is nested inside the other - that is, biological sex discrimination is currently nested in gender discrimination. For example, refusal to provide pap smears is sex discrimination. If biological sex is a stand-alone category, I could walk into court, and say "this is discriminatory because VAGINA." Vagina would be the magical word that triggers biological sex, and puts me in intermediate-scrutiny/Title VII land. However, my intuition is that a court would not accept "vagina" alone. I would have to walk into court and say, "this is discriminatory because vagina, and because vaginas --> woman." Woman, then, is the triggering word. (More likely, as I review my post, I would say “VAGINA,” and a court would imply “à women”.)

There is also the side-issue - if biological sex is alone a suspect classification/individually protected, what does it cover? Does it mean purely chromosomal XX? Does it cover sex organs? Primary or secondary? Each definition may be both over-inclusive and under-inclusive, as there are females with/without each of these. Similar to the oddness of putting a court in the position of determining what a gender stereotype is and what it means to be a woman for the purposes of the law, I wonder if more clearly delineating what qualifies as biological sex would have a crystallizing effect on the definition of female and male. 

At What Point Does A Facially Neutral Classification Constitute a Gender Classification?

This would be an instance where constitutional law and Title VII would diverge. Under constitutional law (which only applies to state actors), if the law is neutral on its face, it's constitutional, even if it's applied in a prejudicial manner. This was established by a case called Yick Wo, which is over a hundred years old, but is still good law as of today. There, SCOTUS upheld a San Francisco ordinance that prohibited laundromats in wooden buildings without a permit. The law was neutral on its face - if you have a wooden laundromat, you get a permit - but (unsurprisingly, given the amount of anti-Asian sentiment at the time) was enforced in a highly prejudicial manner. Chinese individuals owned a high proportion of these laundromats, and very rarely received permits. Because the law was neutral on its face, however, the state could continue to (discriminatorily) enforce the law without violating the Fourteenth Amendment.

Conversely, in the private sector under Title VII, there are methods by which facially neutral employer practices that discriminatorily affect protected groups can be attacked. One example is disparate treatment - "the practice looks facially neutral but is used discriminatorily because the actors are prejudiced" - and disparate impact - "the practice was employed neutrally and was implemented with the intent that it be neutral, but its effects nevertheless lead to a discriminatory effect." Going more directly to the question, "hugely disproportionate effect" is not a method by which one can transfer a "disparate impact" claim into a "disparate treatment" claim. However, it is a statement that can aid in a disparate impact claim by showing that there is discriminatory effect, and it is a statement that can help a court infer discriminatory intent in a disparate treatment case. ("The partnership keeps saying that they don't have the resources to appoint new partners, but have appointed 15 male partners and 0 female partners in the past 2 years. Just saying.")

At what point a facially neutral classification is seen as gender/sex discrimination, however, depends on the court and the jury, as it's a question of fact and determined by the case's own facts and situation. Thus, for a disparate treatment claim, the fact-finder would have to determine that there is a link between the neutral classification and the suspect classification alleged. (Again, I'd avoid disparate impact theory for now, because it is another beast and the postures of those theories are slightly different.) However, I do think there're certain classifications that - even if no presumption legally exists - create a presumption in the minds of most rational people, because it's hard to imagine what else an employer would mean other than to discriminate. "No natural hair," for example. "No vaginas."

Can We Characterize Failure To Provide Birth Control As Discrimination Against People With Uteri?

So, if my theory as to the development of sex/gender discrimination is correct, there are a couple ways this could go. (A) The court says people with uteri are not a protected class and does not constitute sex discrimination [this would be some analytical form like that of the pregnancy SCOTUS case]. (B) The court says people with uteri are a protected class, recognizing that uteri are central to biological sex (but somehow avoids the common line of women -> reproduction -> sex organs), or (C) The court says that discrimination against people with uteri is sex discrimination, because predominantly women have uteri.

Again, all the arguments can be made. However, I think the needle of (B) would be hard to thread for a court without resorting to "what does it mean to be a woman" "having a uterus is one of the things that it can mean to be a woman" "uterus --> woman," and I think this stems from the underlying fact that biological sex discrimination is currently nested inside gender discrimination. My guess is this outcome is the exact opposite of what you'd like, which is to divorce concepts of gender from biology and plumbing. 

What Are Other Options To Address the Conflation of Sex and Gender in the Law?

I added this section - I hope you don't mind! I think that scholars and practitioners have come a long way in terms of understanding the distinction between sex and gender. Granted, the communal level of knowledge is by no means perfect, but there've certainly been leaps and bounds in the past few decades. I remember that our professor covered the sex/gender distinction in our general Con Law class, and I'm sure it came up in Employment as well when we discussed employment discrimination. So there is the fact that as the legal community continues to grow and age, more older individuals - more judges and more politicians etc. - become more aware of the distinction and can proceed forward more carefully. Continuing to bring awareness to the sex/gender distinction and the importance of respecting the distinction is definitely, I think, the most important piece for influencing legislation going forward. 

Another option is to bring cases to start developing a theory of biological sex discrimination divorced from gender. However, I think there’s a consideration that would counsel against making this a primary focus for litigation; it stems from the ethical issues that are often implicated in impact litigation and social change through litigation.

Namely, one reason I would be cautious about litigation is that, if there's discrimination based on biological sex, it's likely already legally covered. However, it might be covered based on a "XXX --> woman" rather than "XXX is biological sex issue." As an advocate, you wouldn't want to risk your client's likelihood of success by only bringing the "XXX is biological sex issue" argument, and if you bring both, "XXX --> woman" is far more likely to be persuasive because there's currently more cases and more precedent in that area. Litigation can definitely bring both arguments, but there's a tension between wanting your reasoning - as an advocate - to govern the case and wanting your client to be successful.

Look closely at the footnotes, and you’ll see that new EEOC guidelines related to workplace pregnancy discrimination say employers who fail to cover birth control could be guilty of employment discrimination.

“Because prescription contraceptives are available only for women, a health insurance plan facially discriminates against women on the basis of gender if it excludes prescription contraception but otherwise provides comprehensive coverage.”

THIS IS SUCH BULLSHIT

I am seeing lots of nice liberal friends posting this like it’s flawless and brilliant

but it is actually really fucked up

Making this fall under employment discrimination does not “throw trans people under the bus”.  This is a matter of systemic discrimination, which means you look at the bulk of people — no worker is going to be hurt by employers not being able to deny full health coverage.  What this means is that an employer who dares to refuse BC coverage is going to have to pit their shoddy justifications against facial discrimination (i.e., the fact that they are not even sneakily fucking over women).

In law, you have two types of discrimination: on its face and disparate impact.  The fact that there are transmen who need birth control and transwomen who don’t does not undo that this is a form of discrimination that is directly tied to sex/gender and therefore illegal.  So is pregnancy discrimination.  Transmen can get pregnant too!  But a policy that punishes pregnant workers is facially discriminatory against women — it shows, on its face, an intent to treat female workers in a manner different from male.

I’d also venture to guess that transmen, by being AFAB and sharing this issue with them, might be considered part of the protected class of women even if that isn’t their ~identity~.  A mixed-race kid could consider himself white, but still be protected by race discrimination that would harm him for being a POC.  The issue isn’t actually the person discriminated against - the issue is the intent of the prejudiced employer.

Like, okay, you aren’t a woman, but the only reason a few men are impacted as well is because they have organs that are considered (rightly or wrongly) to be women’s organs in legal and health/insurance considerations.  Similarly, if someone is trans or genderqueer but hasn’t changed their legal gender status, they should still be protected under rulings that say that bans on same-sex marriage are facially discriminatory.

The other option is disparate impact, and that’s a much easier case to make here — but that means a policy/law is neutral on its face (like “everyone has to pass a fitness test where you carry 100 lbs up three flights of stairs”).  Do you really think that because trans people exist, this kind of policy is neutral?  Again — on the part of the employer?  You think an employer making this policy thinks it will apply equally to men and women?  The problem with disparate impact is that it has a lot less scrutiny and an employer can pretty easily say why a policy with disparate impact is justifiable.

gender and sex aren’t the same category. this is very important. treating gender and sex as the same category, or even as fundamentally linked but with a few exceptions-that-prove-the-rule, is a very very big problem.

(this is why, as an aside, it makes me unhappy when people respond to the “only straight couples can make babies without help” argument with defenses other than “that’s incorrect - there are straight couples who can’t, and gay couples who absolutely can.”)therefore, knowing that someone is a woman says literally nothing whatsoever about their ability to become pregnant, or about what medical interventions might be useful if they don’t want to become a parent.

knowing that someone is a man also says nothing about their ability to become pregnant, or what medical interventions might be useful for them.

“I’d also venture to guess that transmen, by being AFAB and sharing this issue with them, might be considered part of the protected class of women even if that isn’t their ~identity~.”

^ this is actually a big part of my concern. a really great description of my objection. also I’m a little put off by the tildes around the word identity?

so my point is not that there’s some outside consideration - that if a few non-women might also get screwed over, discrimination against women is somehow more palatable. I’m not saying “pregnancy effects women, minus a few who it doesn’t effect, plus a few non-women who it does.” I’m saying that pregnancy affects people who have the ability to become pregnant. that is the class being facially discriminated against. and I wholeheartedly believe that we should protect that class of people.

but conflating that class with “females” - or far worse, with “women” - isn’t okay.

The tildas, etc, are because it DOESN’T MATTER for discrimination law what a person identifies as.  What DOES matter is what message the employer is sending.  Like it literally makes two diddlesquats of difference in discrimination law if a bunch of people want to redefine what “woman” means and to include themselves or not include themselves, because the employer is still facially discriminating agains the legal understanding of what a woman is.  If ten excellent employees are all turned down for a job and they are all: (a) cis or transwomen, (b) transmen who are known to be trans; and (c) genderqueer people who present as feminine? That would be gender discrimination too.  Pretty sure flaming gay men who wear pink feather boas could also fall into that category, if I remember correctly.

There isn’t a “people who have the ability to become pregnant” class.  Maybe there should be, but right now all Obama/the EEOC are doing is extending pregnancy protections to birth control protections.  If you want to work on fixing all the legal definitions and classes, go ahead.  But what you are doing now is saying that protections — important protections — should be invalidated (or at least not celebrated as a victory) because you want to use a narrower definition of woman than discrimination law.

Your problem might be with the PDA - this is an extension of it.  Don’t throw a fit about a really, really good extension of a protection because you don’t like the way the protection itself is defined (that pregnancy discrimination is sex/gender discrimination).

What you are repeatedly doing is focusing on the discriminated-against person (“or far worse, women”) and not the focus of discrimination law: the discriminatory policy.  People who are excluding birth control from their insurance are doing so to limit women. If it is over-broad and also hurts some men, that doesn’t make it not facially discriminatory against women.  Perhaps it is also discriminatory against transmen and some genderqueer persons.  It’s still facially discriminatory against women.

I agreed with you that the preface clause of Rx BC is “only for women” should probably be something more like “only for women and those assigned female at birth”, but the rest still follows and is good law.  Discriminating against all people AFAB, whether they are cis or trans, is, legally speaking, discrimination against women (because it’s about the intent - i.e., a misogynist employer punishing anyone who has a connection to womanhood, even if they affect more people than just women).

A policy saying that everyone has to eat shellfish discriminates against Jews, even though there are lots of Jews who eat shellfish, and non-Jews who don’t.  Not eating shellfish is still something linked with Judaism, and that policy would be completely illegal.

Similarly, ability to get pregnant, while not a 1-1 complete overlap with the category of women, is undeniably understood (in law, health, society, etc) as having a clear link with womanhood.  TBQH it is probably one of the qualities associated with women that has the highest correlation with the actual population of women (seriously, other than “identifies as a woman”, I don’t think there’s a quality that overlaps more completely with “being a woman” as this, even though it is clearly not 100%).  Discriminating based on that quality is more than disparate impact — it’s discrimination, against women, on its face.

We do have somewhat different approaches and understandings of gender, but my issue here is that you are attacking a good thing, a really good measure that will help women and men and cis people and trans people alike, for a flaw in its foundation that is pretty systemic across law.

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. 

While Amazon touts Kindle Unlimited at “Netflix For Books!” the reality is Netflix signed contracts with everyone whose work they offer so that actors, screen writers, best boys, and the rest of those people get paid for the shows and movies you watch. Amazon does not.

Greek Gods 

wow

happy seventh birthday to harry potter and the deathly hallows! (21 july 2007)