What is the relationship among sex, sexual orientation and gender identity?
In Squire v. FedEx, the Maryland federal court had to decide whether a claimant had sufficiently notified his employer of his claims based on sex, gender identity and sexual orientation. Otherwise, his lawsuit was subject to dismissal. As many know, there is a commonly held belief in the LGBT community that gender identity and sexual orientation are separate and distinct, and never the twain shall meet. A DC federal court so held in Underwood v. Archer Management (D.D.C. 1994).
However, courts have begun to understand that, though separate, the concepts are not that distinct, and are not unrelated. I agree with that analysis, as laid out in my 2007 law review article in the Temple Civil Rights Law Review. At the same time, of course, this is not license to conflate sexual orientation with gender identity.
But it should also be recognized that, among our younger generations, the line between the two is even less socially distinct than in the past, as I detailed in my 2007 article in the Journal of Lesbian Studies. Here, the court finds that the claimant sufficiently notified the employer of his sexual orientation discrimination claims by raising sex and gender identity claims.
Of course, one should be careful to raise all claims properly. But the court here properly recognized that the claimant’s case shouldn’t be thrown out of court just because of the formal separation between the concepts of sexual orientation and gender identity.
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