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Law Offices of Dan A. Atkerson

What’s the Difference Between Sex Discrimination and Gender Identity Discrimination?

By Dan Atkerson on December 11, 2015

Male Female SymbolsSex discrimination and gender identity discrimination are fairly similar, and the EEOC has even come out saying that gender identity is covered under sex discrimination. However, there is no specific clause in the constitution prohibiting workplace discrimination based on gender identity. Only 17 states and various cities have expressly banned gender identity discrimination.

What Is Gender Identity Discrimination?

Gender identity refers to the gender a person identifies with, and includes forms of expression such as clothing, mannerisms, appearance, etc. In states and cities that have laws against gender identity discrimination, making employment decisions like hiring, firing, promoting, demoting, and so on based on the person’s gender identity is illegal.

What Does Gender Identity Discrimination Look Like?

People who are currently transitioning gender or have already transitioned and may experience discrimination in a number of ways. Some examples include:
  • Harassment – Inappropriate jokes, slurs, or threats for example constitute sexual harassment.
  • Dress Codes – Employees in a state or city that prohibits gender identity discrimination should be allowed to conform to the dress codes for the gender with which they identify.
  • Pronouns – Sometimes, slips of the tongue are not intentional or malicious, but intentionally and repeatedly calling a transgender person by the wrong pronoun may constitute discrimination.
  • Paperwork Issues – After transitioning, many people will want their paperwork to accurately reflect their gender, meaning that refusal to update the paperwork may also be discrimination.
  • Restrooms – The restroom issue became the banner for opposition to Houston’s Equal Rights Ordinance. Requiring an employee to use a restroom that does not conform to the gender with which they identify is also illegal in cities that ban gender identity discrimination, such as Dallas.

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