On October 5, 2017, the Washington Post published an excellent article on the intersex rights movement. The term "intersex" refers to individuals with physical characteristics that do not fit the traditional binary distinction between male and female. Although EEO cases involving allegations of intersex discrimination are extremely rare, I think a strong case can be made for coverage under Title VII, which is generally understood to prohibit discrimination against someone for being male or for being female. In some respects, there is a stronger argument that Title VII covers intersex discrimination than that it covers sexual orientation or gender identity discrimination. Coverage of the latter is primarily based on the theory that sex discrimination includes not only discrimination against men and women generally but also discrimination more narrowly against men and women who do not conform to sex stereotypes. Coverage of intersex discrimination, by contrast, is a straightforward case of discrimination based on an individual's maleness and/or femaleness.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
