Peter Sprigg is Senior Fellow for Family Policy Studies at Family Research Council. This article appeared in Washington Examiner on October 25, 2018.
“The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth,” the New York Times reported recently.
That means the Times only made it eight words into this sensationalized article before making its first factual error. The Times simply assumed precisely what the administration rejects — namely, that the word “gender” is synonymous with “sex.”
What they should have said is that the Trump administration is considering additional policy changes to standardize the meaning of the word “sex” in federal law and regulations. The policy reportedly under consideration would define the word “sex,” particularly as a protected category in various nondiscrimination laws and policies, exclusively on the basis of biological characteristics evident at birth.
This would be a reversal of policies adopted by the Obama administration, which interpreted the word “sex” to encompass “gender identity.” Under this view, laws and policies prohibiting discrimination on the basis of sex were interpreted as also protecting persons who identify as transgender against discrimination on the basis of their self-identified, psychological gender identity.
But 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 women or because they are men. The reported Trump administration policy is merely a recognition of this fact.
If transgender activists want gender identity to be a protected category in the law, they need to persuade Congress to pass such a law.
In the past, Congress has voted to prohibit hate crimes motivated by the victim’s gender identity. It has also included gender identity in the nondiscrimination provisions of the Violence Against Women Act to make clear that transgender people who are victims of domestic violence may access certain services. However, Congress has repeatedly rejected proposals to add gender identity as a protected category in laws barring discrimination in employment or public accommodations (such as the Civil Rights Act of 1964), or to add it to laws against discrimination in education (particularly Title IX of the Education Amendments of 1972).
It is within the power of Congress to adopt laws treating gender identity as a privileged or special category. The Family Research Council believes it would be unwise to do so, for it is a false compassion that would reaffirm someone's gender confusion. A biological definition of sex is also consistent with that used by the American Psychiatric Association: Biological indication of male and female (understood in the context of reproductive capacity), such as sex chromosomes, gonads, sex hormones, and nonambiguous internal and external genitalia.
But either way, 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.
A month after President Trump took office, in February 2017, the Department of Education and Department of Justice withdrew guidance that had been issued by the Obama administration nine months earlier. The previous administration had interpreted the Title IX provision against sex discrimination to include gender identity. The Obama edict sought to force schools to allow biological males into girls' showers, locker rooms, and restrooms, and vice versa.
On October 4, 2017, the Department of Justice withdrew the memo issued by the Obama administration in December 2014 that had interpreted sex discrimination in employment under Title VII of the 1964 Civil Rights Act to include gender identity. The DOJ memo stated that Title VII prohibits discrimination based on sex, but not based on gender identity, declaring this a “conclusion of law, not policy.”
Supporters of the rule of law should be encouraged that other federal departments such as Health and Human Services are working to protect people against sex discrimination as the laws were originally written, including as it relates to healthcare. This common-sense approach would do no more than correct the illegitimate overreach by the previous administration.