Born Free: Toward an Expansive Definition of Sex

Abstract

The State of New York recently issued its first physician-certified “intersex” birth certificate, correcting a 55-year-old’s original birth certificate. This is a positive step towards eliminating the traditional binary approach to a person’s birth sex, but it creates potential uncertainties in the employment discrimination context. Over the past several years, the definition of what constitutes “discrimination on the basis of sex” has both expanded (with the legalization of same-sex marriage) and narrowed (restricting the use of gender specific bathrooms). Until recently it appeared that a broader definition of the term “sex” would become the judicial—and possibly legislative—norm in a variety of contexts. However, several obstacles have emerged to jeopardize true equality for the LGBTQIA community, including (1) inconsistent judicial opinions regarding the meaning of “sex,” (2) the increased ability of employers to utilize religion or “any other factor” as a defense to discrimination claims, (3) regressive executive policies regarding the definition of “sex,” and (4) uncertainty about the extent to which transgender individuals may remain in the military. Although each of these issues warrants thorough analysis and has sparked scholarly debate, in this Article we focus on another critical inequality: wage disparity. Specifically, we are concerned with the problem posed for DSD and transgender individuals, given the Equal Pay Act’s requirement that plaintiffs demonstrate they are paid differently from the “opposite sex” for a wage disparity claim. The Equal Pay Act (EPA) is outdated and discriminatory in its application, and it unnecessarily subjects an entire segment of the workforce—LGBTQIA individuals—to continued discrimination. The EPA requires that plaintiffs prove their cases through reference to an opposite sex comparator, but then defers to the employer’s subjective definition of who “the opposite sex” is. This makes LGBTQIA plaintiffs’ cases essentially unwinnable. Uncertainty for the LGBTQIA community is further compounded by the expansion of the employer’s right, under both the Equal Pay Act and Title VII, to invoke religion, conscience, or “any other factor” as an affirmative defense to discrimination claims. In this Article, we discuss the interplay between a plaintiff’s sex-specific protections (against sex-based employment discrimination under Title VII and against wage disparity under the Equal Pay Act) and an employer’s affirmative defenses (under Title VII, the EPA, and current interpretations of the Religious Freedom Restoration Act). Our discussion concludes with recommendations for an expansive definition of the word “sex” and the adoption of the recently proposed Equality Act to help alleviate all forms of sex-based discrimination in the employment context.