Legal: What you should know about sex and gender

Written by Olufemi Akanni

The word “gender” has been used synonymously with the word sex in the law of discrimination. However, when subject to careful analysis, the two terms have long had distinct meaning, with gender being to sex what masculine or feminine is to male and female.

According to Monash University, medicine, nursing and health sciences have defined sex to mean biological differences, chromosomes, hormonal profiles, internal and external sex projects, while gender describes the characteristics that a society or culture delineates as masculine or feminine.

Let me quickly add at this juncture that there are some people who by their biological differences, are identified by biological make up as “intersex” because they have mixed sex factors. If you like, the presence of both male and female sexual organs present in a person. What “box” of gender would you place such a person? Also, there is a class of people whose internal psychological experience differs from their assigned sex. They are called transgender or transsexual.

The present distinction between sex and gender has been criticised as being misleading and counterproductive. It suggests that an individual person’s behavior can be partitioned into separate biological and cultural factors which in all cases may not be the case. As we grow, we learn how to behave from those around us. In this socialisation process, children are introduced to certain roles that are typically linked to their biological sex.

In most cultures for instance, masculine roles are often associated with activities, strength, aggression, dominance, while feminine roles are often associated with passivity, nurturing, and subordination. Flowing from the above, one can clearly state that the idea expressed is not truly what is obtainable in most parts of the world today. Football that was strictly seen as a sport for males is now recognised all over the world today as a sport for both male and female. One can however argue that females who partake in the sport of football are masculine. I would however like to disagree that this is not always the case as not all males are interested in the sport of football and would not even spend a spare time to watch a football match, and this doesn’t make them feminine.

Sex and orientation exert the following differential pull on gender in current life and law: When individuals diverge from the gender expectations for their sex – when a woman displays masculine characteristics or a man, feminine characteristics, one’s discrimination against him or her is now treated as sex discrimination while his/her behaviour is generally viewed as a marker for homosexual orientation and may not receive protection from discrimination.

This is most apparent from a comparison of Price Waterhouse v. Hopkins (490 U.S. 228, [1989]) in which the Supreme Court of the United States of America held it to constitute impermissible sex stereotyping to advise a female candidate for an accounting partnership that she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled…wear jewellery, and go to “charm school”‘ (Id. at 235), with cases upholding an employer’s right to fire or not to hire males specifically because they were deemed “effeminate.” (Smith vs. Liberty Mut. Ins. Co., [569 F.2d 325, 327, 5th Cir. 1978).

The above cases mark the continuing devaluation, in life and in law, of qualities deemed masculine exhibited by a woman or feminine characteristics exhibited by men. The bitter truth is that all over the world, we have these individuals with such attributes as brothers, sisters, colleagues, cousins, course/class mates, friends or even parents. Despite this, day in and out, we ourselves are very guilty of the discrimination against these people.

Their biological makeup is far from what the society expects as an output of their behaviours or characters, but does that make them less human or should that be a ground for discrimination? Anti-discrimination 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,” (Jenness vs. Fortson [403] U.S. 431, 442 (1979), see also Michael M vs. Superior Court, [450] U.S. 464, 469 (1980) where it was stated that the Equal Protection Clause does not require “things which are different in fact…to be treated in law as though they were the same”.

According to a Law Review by University of Pennsylvania which I totally agree with, the targets of anti-discrimination law, therefore, should not be limited to the “gross, stereotyped distinctions between the sexes” (Frontiero vs. Richardson [411] U.S. 677, 685 (1973) but should also include the social processes that construct and make coherent the categories male and female.

In many cases, biology operates as the excuse or cover for social practices that hierarchies individual members of the social category “man” over individual members of the social category “woman.” In the end, biology or anatomy serve as metaphors for a kind of inferiority that characterises society’s view of women.

In conclusion, while the state has the power to put people in particular categories, its actions have rarely been subject to equal protection scrutiny. Rather than accepting sexual and gender differences as the starting point of equality discourse, sex and gender discrimination jurisprudence should consider the role that the ideology of sexual and gender differences plays in perpetuating and ensuring sexual and gender hierarchy.

Also, it is important to understand what it is to be a man or a woman – what it is to be masculine or feminine, irrespective of which is dominant in the sexual make up of a person. Finally, the law protecting discrimination of situations where a man has feminine attributes and vice versa should be put in place.


Photo source: Community Table

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Olufemi Akanni

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