Despite laws that are meant to protect Americans from bias based on gender, gender discrimination in society persists. These biases can impact various facets of life, from work relationships and compensation to social expectations of what one's home life should look like.
Even though gender discrimination persists in the U.S., there are resources available to those who feel they have faced discrimination. There are also ongoing efforts to improve society when it comes to issues of gender. These efforts are playing out on various fronts, including courtrooms, legislative bodies, and community centers.
Gender vs. Sex
Before going any further in this topic, it's important to distinguish between "gender" and "sex." In the simplest terms, sex is a function of biological traits, the most prevalent of which are the chromosomes a person is born with. Most men are born with 46 "XY" chromosomes, while most women are born with 46 "XX" chromosomes. Those are the most common chromosome combinations, but others do occur, albeit relatively rarely. In addition to chromosomes, sex distinctions also take into account factors like hormone balances and "phenotypic variations" (physical traits).
The World Health Organization states that gender, on the other hand, "is a social construction that varies across different cultures and over time." The WHO goes on to explain that, while not all cultures break down issues of gender in binary terms, it is typical to describe gender "in terms of masculinity and femininity."
In other words, gender is a fluid term that could mean something entirely different depending on who you're talking to and in what part of the world you talk to them.
For the U.S. government, however, there is no distinction between these two terms—at least when it comes to discrimination cases. While the federal government explicitly protects against workplace discrimination "based on gender identity or sexual orientation," these protections are legally pursued under laws that prohibit sex discrimination. This covers members of the LGBT community when it comes to issues like equal pay, bathroom use, and harassment (such as intentionally using the wrong gender pronoun to refer to an employee or coworker).
Laws on Gender Discrimination
The applicable laws on gender discrimination vary by where the discrimination took place. Here is a partial list of laws that address gender discrimination in society:
- The Equal Credit Opportunity Act extends protections to anyone seeking a loan or any other form of credit.
- The Equal Pay Act of 1963 guarantees workers equal pay and benefits packages for equal work.
- The Fair Housing Act applies to issues related to buying or renting a home, as well as any discrimination in financing housing costs.
- The Pregnancy Protection Act provides an extra layer of legal protection for any women facing workplace discrimination related to their pregnancy or efforts to become pregnant.
- Title VII of the Civil Rights Act applies to workplace bias and discrimination.
- Title IX of the Education Amendments of 1972 bans discrimination in any educational program that receives federal funding. This law generally covers all public schools and it addresses all aspects of scholastic life, including any sports teams a school or college might have.
Persistent Examples of Gender Discrimination
Despite the clearly worded laws at the federal level, gender discrimination persists throughout society and in every U.S. state. Not all of these cases see legal resolution, but to take just a small snapshot of the scope of the issues: the Equal Employment Opportunity Commission says it has used Title VII language to secure $6.8 million in voluntary resolution payments to individuals—and that's just for cases relating to LGBT workplace issues since 2013.
On June 15, 2020, the U.S. Supreme Court ruled 6-3 that Title VII of the 1964 Civil Rights Act, which protects against employer discrimination on the basis of "sex," applies to gay and transgender people. Supreme Court Justice Neil Gorsuch, who wrote the opinion for the six-member majority, said, "In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law."
One of the most prominent examples of persistent discrimination concerns equal pay. According to the Pew Research Center, women earned just 85% of what men earned in 2018. A similar study from the Census Bureau in 2017 found that women earned 80% of what men did. Both numbers actually represent an improvement over past decades. In 1980, a woman could expect to make 36% less than her male coworkers.
Another recent example involves transgender bathroom use. A North Carolina law, passed in 2016, sought to restrict bathroom use to the sex listed on someone's birth certificate, rather than their gender. However, the law was challenged in court, and in 2019, a settlement effectively struck down the law by affirming the right of transgender people to use the bathroom that corresponds to their gender.
Not every case of discrimination is cut and dry, and that could be why the data continues to show significant disparities between genders. Individuals who discriminate may not be aware of how their actions are harmful. Other instances may be so subtle, it's difficult to determine whether it qualifies as discrimination. However, as far as the law is concerned, discrimination becomes illegal as soon as the action excludes or harms a certain sex—even if the exclusion or harm is unintentional. This language covers LGBT issues, as well.
Resources for Those Who May Be Facing Gender Discrimination
If you feel you have been unlawfully discriminated against based on your gender, or if you simply want to learn more about your rights, there are plenty of resources available:
- ACLU—Know Your Rights: Sex Discrimination
- California Women's Law Center—Gender Discrimination in Education/Title IX
- CFPB—What You Need to Know About the Equal Credit Opportunity Act and How It Can Help You
- HUD—File a Complaint
- Workplace Fairness—Sex/Gender Discrimination: How Can I File a Complaint?