The Department of Health and Human Services is reportedly considering scrapping Obama-era executive actions tying federal school funding to recognizing gender as a choice.
The report Sunday in the New York Times on the proposed change referenced a leaked memo. Nothing has been finalized, however.
Here’s what to know about the potential new policy.
1. New Policy Same as the Old?
The new policy, if adopted, would likely put into writing the presumption in place before President Barack Obama’s administration’s executive actions.
The Obama administration in 2016 mandated that public schools open their restrooms, locker rooms, and showers to transgender students based on their gender identity, rather than on their biological sex.
The Times reported on the leaked memo that said HHS would define gender “on a biological basis that is clear, grounded in science, objective and administrable.”
The Times’ headline on its report asserted: “‘Transgender’ Could Be Defined Out of Existence Under Trump Administration.”
However, the substance of the article explained the definition would be applied for the purposes of Title IX, which is the law that bans gender discrimination in education programs that receive federal financial assistance.
“In the last months of the Obama administration, federal bureaucrats unlawfully redefined the word ‘sex’ to mean ‘gender identity,’ and then imposed a radical bathroom and locker room policy on all our public schools, and said that doctors who declined to perform sex ‘reassignment’ procedures would be guilty of discrimination,” Ryan T. Anderson, a senior research fellow at The Heritage Foundation and author of “When Harry Became Sally: Responding to the Transgender Moment,” told The Daily Signal.
“Thankfully, it appears that the Trump administration has rejected Obama’s transgender agenda and understands the word ‘sex’ correctly as a bodily reality,” Anderson said.
The memo reportedly says: “Sex means a person’s status as male or female, based on immutable biological traits identifiable by or before birth. The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”
2. What’s the Current Legal Precedent?
A lower federal court ruling in Texas halted the Obama administration’s regulation.
Twenty-four states challenged the Obama administration’s Education Department and Justice Department for the gander-identity mandate in three different lawsuits.
The Obama administration asserted Title IX provides protections for transgender students, thereby requiring schools to allow transgender students into restrooms and locker rooms based on their gender identity.
Federal Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas in Fort Worth ruled in 2016 that the Obama administration had overstepped its bounds in bypassing the regulatory process in imposing the rule.
“It cannot be disputed,” O’Connor, an appointee of President George W. Bush, wrote that in passing Title IX, Congress “meant the biological and anatomical differences between male and female students as determined by their birth” in reference to “sex” in the Title IX law.
3. What is the Trump Administration Saying?
HHS spokeswoman Caitlin Oakley declined to offer specifics on the policy based on information the Times reported had been leaked.
“We do not comment on alleged, leaked documents that purport to indicate the status of deliberations or the focus of the department,” Oakley said in a statement. “The Obama administration’s broad definition of ‘sex’ was enjoined by a federal court on a nationwide basis in December 2016, and the Obama administration did not appeal.”
Oakley’s statement continued:
That court found that the Obama administration regulation was overbroad and inconsistent with the text of the 1972 Title IX law prohibiting discrimination on the basis of sex.
The court order remains in full force and effect today, and HHS is bound by it as we continue to review the issue.
Everyone deserves to be treated with respect, and HHS’s Office for Civil Rights will continue to vigorously enforce all laws as written and passed by Congress, prohibiting discrimination in health care on the basis of race, color, religion, national origin, sex, age, and disability.
Oakley also referenced a statement from Roger Severino, director of HHS’ Office of Civil Rights.
Severino said that, as of now, the department is abiding by the federal court ruling.
“A federal court has blocked HHS’s rule on gender identity and termination of pregnancy as contrary to law and infringing the rights of health care providers across the country,” he said in a statement. “The court order remains in full force and effect today, and HHS is abiding by it as we continue to review the issue.”
4. LGBT Activist Group Says It’s a ‘Destructive Precedent’
Even though no policy is in place, the top LGBT lobbying organization went on offense after the Times’ initial report.
“Setting a destructive precedent, the Trump-Pence administration intends to erase LGBTQ people from federal civil rights protections and eviscerate enforcement of non-discrimination laws,” Chad Griffin, president of the Human Rights Campaign, an LGBT advocacy group, said in a statement.
Defining “sex” in this narrow language, tailored to the talking points of anti-equality extremists, is part of a deliberate strategy to eliminate federal protections for LGBTQ people.
This is a direct attack on the fundamental equality of LGBTQ people and, if this administration refuses to reverse course, Congress must immediately take action by advancing the Equality Act to ensure that LGBTQ people are explicitly protected by our nation’s civil rights laws.
The Human Rights Campaign’s press release claimed that standing by a biological definition of sex could mean that same-sex couples could be turned away from emergency shelters and that insurance could deny coverage of gender-transition surgery.
Family Research Council’s Senior Fellow Peter Sprigg issued the following statement about the report in the New York Times:
“Members of Congress who prohibited discrimination ‘on the basis of sex’ in employment and public accommodations in 1964, and in education in 1972, did not have transgender identities in mind when they did so. It should be perfectly clear that the original legislative intent, based on the plain meaning of the word ‘sex’ as understood at the time, was to protect people against discrimination because they are biologically female or biologically male,” Peter Sprigg, senior fellow at the Family Research Council, said in a statement.
It is within the power of Congress to adopt laws treating ‘gender identity’ as a privileged or special category (although FRC believes it is unwise to do so). However, it is not within the legitimate power of either the executive or judicial branch of government to change the plain meaning of ordinary English words, merely to achieve a policy outcome they have not won through the democratic process. Yet this is what the Obama administration and a handful of federal courts (but not the Supreme Court) have attempted to do.
Last year, the Trump administration withdrew the Obama administration’s edict to force schools to allow biological males to use girls’ showers, locker rooms, and restrooms, and vice versa. It also restored the original meaning of civil rights protections to bar discrimination on the basis of sex. Adopting a formal definition of ‘sex’ in biological terms would be consistent with this move.
This story was updated to include a comment from Peter Sprigg of the Family Research Council.