Today, we stand in a world where heterosexuality and cisgenderism remain the dominant forms of sexual orientation and gender identity. While some may argue that this is due more to culture and socialization rather than conscious, educated choice, the point remains in many parts of the world. Despite science treating sex and gender as two different categories, many who are more familiar or comfortable with the sexual and gender “norms” cannot seem to split the two.
Even the law defines sex and gender as two different things—sexual orientation and gender identity can fall into two very different forms of discrimination. Everyone must know the difference between these terms because sexual orientation and gender identity discrimination are still prominent issues that affect numerous LGBTIQIA+ members to this day. Dive into each term’s definition and how discrimination may appear in our modern world below.
Before we can discuss the difference between sexual orientation and gender discrimination, we must understand the difference between sex and gender. We cannot understand gender without first understanding sex. Sex is the biological and psychological traits and characteristics of males and females. These traits can include primary and secondary sex characteristics, chromosomes, and hormones. The trouble here is that science is slowly realizing that categorizing humans into males and females based on their biological characteristics isn’t easy.
People who are intersex don’t neatly fall into these categories as they may have hormonal or physical sex characteristics that don’t fit under the strictly male or strictly female categories. Often, doctors will simply look at their predominant sexual traits and put them under the “appropriate” category. Unfortunately, doing so can lead to feelings of inadequacy or feelings of otherness down the line.
These feelings occur for two reasons. First, these categories are inadequate—categorizing billions of humans into two categories is negligent on a statistical level. Second, people will often tell an intersex person that the sex that is written on their birth chart should also be their gender identity—but what is gender?
Gender is the socially constructed physical and personality characteristics of men and women. Therefore, gender is entirely made up, and the human mind’s attempt to put things into categories. Many stand outside this gender binary of male and female and identify as transgender, two-spirit, gender fluid, nonbinary, and so on. Although humans rarely fall into neat little boxes, if we were to put a bow on the difference between sex and gender, it would be as follows:
Sex is the chromosomes and sexual characteristics you’re born with, whereas gender is an identity.
So, where does sexual orientation fall into all of this if we define sex as the chromosome and sexual characteristics you’re born with? Sexual orientation is a person’s pattern of romantic or sexual attraction to a particular sex or gender and is separate from their gender identity. These include homosexuality, pansexuality, bisexuality, asexuality, heterosexuality, and so on.
While a person can be attracted to anyone, regardless of gender identity, it is important to understand that these are man-made categories. In other words, these labels are fluid. Even though sex, sexual orientation, and gender identity are separate things, they often intertwine beautifully. Let’s look at an example:
Emily is a transgender woman. All her life, she has been attracted to other women. Others, and herself, may have considered her to be heterosexual before she transitioned from male to female. However, after her transition, she still likes women. Now, Emily may identify as a lesbian, and others may view her that way as well.
Now that we can better understand the difference between sex, sexual orientation, and gender, let’s define discrimination to complete our glossary. Discrimination is the prejudicial or unfair treatment of different groups of people. A person may discriminate against someone based on their sex, gender identity, sexual orientation, race, religion, age, and many other characteristics. It’s important to note that all these characteristics receive protection under federal law, and discrimination against somebody because of these characteristics is illegal.
You must prove, at the very least, that you were treated differently because of a certain protected characteristic to prove that someone has discriminated against you. For example, you would have to prove that the discriminatory action or behavior occurred because of your race if you wanted to prove you were being racially discriminated against. Proving such discrimination can be difficult, as most people will lie about their intentions, and intent can be one of the hardest things to prove in court.
As previously stated, federal law protects sexual orientation and gender identity characteristics. Therefore, someone cannot discriminate against you simply because of whom you find sexually attractive or how you identify. However, it is important to note that sexual orientation only applies if a person is attracted to another consenting party. Pedophilia or zoophilia are not sexual orientations, they are crimes. They do not fall under sexual orientation discrimination.
The difference between sexual orientation and gender identity discrimination is simple. Sexual orientation discrimination is when someone treats another person prejudicially, unjustly, or unfairly based on who the other person finds sexually attractive. Gender identity discrimination is when someone treats another person poorly or unfairly simply because of their gender identity.
Let’s look at a few examples of what these forms of discrimination might look like today to get a better idea of the true nuances and differences between these terms.
Avery is genderfluid, meaning they do not have one single unchanging gender—how they identify may change day to day. They put a little pin on their shirt that says he/him, they/them, or she/her depending on how they feel to help others use their preferred pronouns. One day, Avery comes into work with the he/him pronoun pin on. Avery’s boss sees this but continues to refer to him as she. Even after Avery politely corrects his boss, his boss says, “I don’t care, and you shouldn’t bring that nonsense into work.” An employer actively refusing to respect someone’s pronouns and purposely putting them down for not fitting into the gender binary is gender identity discrimination.
Joshua is a cisgender gay man who uses he/him/his pronouns. He recently married his partner, Adam, who is bisexual and a cisgender man who uses he/him/his pronouns. Joshua put a wedding photo of him and his husband on his desk at work. Many at his job, mostly heterosexual couples, also have wedding photos of themselves and their partners on their desks.
One day, Joshua’s boss tells him he cannot have a wedding photo of him and his partner on his desk because their relationship is “offensive.” His boss doesn’t tell other heterosexual workers to take down their pictures. This situation is sexual orientation discrimination because Joshua cannot freely express who he loves and finds attractive like his coworkers.
At the Law Firm of Tamara N. Holder, we understand how difficult intent can be to prove, but don’t lose hope if you’ve faced discrimination because of your sexual orientation. Contact us today, and we’ll put you in touch with one of our sexual orientation discrimination lawyers, who will treat your case respectfully and work tirelessly to get you the compensation you deserve.
