expression. Is there a difference, or is
it all just sex? The short answer to both
questions is yes.
Yes, there is a difference between
sex and gender. Sex is determined, or
assigned, at birth (e.g., male or female).
Gender, on the other hand, refers to an
individual's sense of self. Frequently,
individuals also describe their gender as
male or female. Whether they do or not,
employers should understand at a basic
level that an employee's gender might not
be the same as their birth sex. Gender
(gender conforming individuals), but for
others, sex and gender may be different
(gender non-conforming individuals).
And yes, sex includes gender
and gender means sex for purposes
of discrimination, harassment and
retaliation in the California workplace.
The relevant law is the Fair Employment
and Housing Act (FEHA). FEHA makes
it an unlawful employment practice to
discriminate, harass or retaliate against
employees based on a protected class.
Sex, gender, gender identity and
gender expression are protected classes
under FEHA, and each is defined.
Under that law, what is important is that
harassment, discrimination and retaliation
based on sex or gender is illegal; its
characterization as gender-based or
sex-based harassment, discrimination or
retaliation is less important.
Other laws, like FEHA, may similarly
include gender as part of sex. Therefore,
employers, whether operating in
California or elsewhere, should be aware
that sex and gender are different, and
further, that sex and gender might be the
same under applicable law.
The gender identity and gender
expression definitions under FEHA
are useful for developing a basic
understanding of gender. 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
not stereotypically associated with the
person's assigned sex at birth." In other
words, not only may an employee's
gender be different than the employee's
sex, but an employee's gender expression
may also be different from the employee's
gender identity. For example, an
employee whose birth sex is male and
identifies as female has a female gender
identity. That employee might present at
work as female or as male, but how that
employee presents, or expresses herself,
at work (as male or as female) does not
affect the employee's gender identity
as female.
Since gender is subsumed within sex,
the distinction among gender, gender
identity and gender expression may
mean little in the California harassment,
discrimination and retaliation context
because whether the unlawful conduct is
sex-based or gender-based, it would all
be unlawful harassment, discrimination
and/or retaliation based on sex. The
opposite is not true. Discrimination
based on sex may or may not also
constitute discrimination based on
gender (or gender identity or gender
expression). Sex is not defined to
mean anything under FEHA. Rather,
it is defined to include things. Besides
including gender, gender identity and
gender expression, sex also includes
pregnancy, childbirth, breastfeeding
and medical conditions relating to those
conditions. This further demonstrates
that the legal meaning of sex under
FEHA is very broad and does not
Fleury, where he specializes in employment
law, representing employers. He is an advisor
to the executive committee for the State Bar
of California's Labor and Employment Law
Section. He also is a member of the Society
for Human Resource Management and the
Sacramento County Labor and Employment
Law Section.
400 Capitol Mall
Twenty-Second Floor
Sacramento, California 95814
916.442.6664 Fax
selsbernd@wilkefleury.com