The New York Times reported that the Trump Administration via the U.S. Department of Health and Human Services is looking to affirm the biological definition of sex in federal law.
Erica L. Green, Katie Benner, and Robert Pear write:
The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.
A series of decisions by the Obama administration loosened the legal concept of gender in federal programs, including in education and
health care, recognizing gender largely as an individual’s choice and not determined by the sex assigned at birth. The policy prompted fights over bathrooms, dormitories, single-sex programs and other arenaswhere gender was once seen as a simple concept. Conservatives, especially evangelical Christians, were incensed.
Now the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times.
First, a couple problems in the very first paragraph of the article which gives away the reporters’ worldview, political leanings, and, lack of understanding of both the law and, frankly, the definition of “sex” as it relates to one’s identity.
1. Federal law does not mention gender, but sex.
The Civil Rights Act of 1964 states that is unlawful to discriminate against any individual because of “race, color, religion, sex, or national origin.”
Then Title IX of The Education Amendments of 1972 states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Congress’ intent of the word “sex” was biological sex.
Sex is “a biological, immutable characteristic determined by genitalia at birth.” That is what the word means.
2. There is no transgender protection under federal law.
Referring to point one that one’s sex is a protected class, not a person’s gender identity. The Times wrote that this effort is “the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.”
That is nonsense. There is no recognition and protection under federal civil rights law. Words mean something. Definitions matter. Congress’ intent in passing a law matters. “Dear colleague” letters issued as federal guidance are not law. What the Obama administration did was blatantly unconstitutional they attempted to usurp the authority of both Congress who passes the law and the Supreme Court who interprets it in light of the Constitution. Congress has failed to include “gender identity” in federal law, so the Obama Administration decided it would just redefine the word “sex.”
That is not a change in federal law. This sentence by the New York Times is nonsense.
This is a step in the right direction, and frankly, Congress needs to act as well. There is a bill in Congress sponsored by Congressman Pete Olson (R-TX) entitled “Civil Rights Uniformity Act of 2017” (H.R. 2796) that Congress should pass to settle this nonsense.
American Principles Project‘s executive director Terry Schilling stated in response to the Trump Administration’s move, “Sex is a biological reality, and maintaining distinctions between men and women will ensure the dignity, equality, and safety of both.”
“The Department of Health and Human Services is blazing a clear trail for the other agencies and, ultimately, Congress to follow. The idea that one’s sex is a choice, completely unrelated to biology, is ideology masquerading as science,” Schilling added.
He is absolutely right.
Disclaimer: I work for American Principles Project.