Contemporary sex discrimination jurisprudence accepts as one of its foundational premises the notion that sex and gender are two distinct aspects of human identity. That is, it assumes that the identities male and female are different from the characteristics masculine and feminine. Sex is regarded as a product of nature, while gender is understood as a function of culture. This disaggregation of sex from gender represents a central mistake of equality jurisprudence.
Antidiscrimination law is founded upon the idea that sex, conceived as biological difference, is prior to, less normative than, and more real than gender. Yet in every way that matters, sex bears an epiphenomenal relationship to gender; that is, under close examination, almost every claim with regard to sexual identity or sex discrimination can be shown to be grounded in normative gender rules and roles. Herein lies the mistake. In the name of avoiding "the grossest discrimination," that is, "treating things that are different as though they were exactly alike," sexual equality jurisprudence has uncritically accepted the validity of biological sexual differences. By accepting these biological differences, equality jurisprudence reifies as foundational fact that which is really an effect of normative gender ideology. This jurisprudential error not only produces obvious absurdities at the margin of gendered identity, but it also explains why sex discrimination laws have been relatively ineffective in dismantling profound sex segregation in the wage-labor market, in shattering "glass ceilings" that obstruct women's entrance into the upper echelons of corporate management, and in increasing women's wages, which remain a fraction of those paid men.
Civil Rights and Discrimination | Law | Sexuality and the Law
Katherine M. Franke,
The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender,
U. Pa. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3640