The Trump administration is reportedly preparing to issue a memo which would define gender identity meaning “male” and “female” – and therefore sex or gender discrimination – based upon a person’s anatomical characteristics, rather than upon feelings or gender preferences, thereby ending many protections and benefits for transgender people established by a small number of bureaucrats without specific authorization by Congress, reports public interest law professor John Banzhaf.
However, although the New York Times claims that this would amount to “Defining Transgender Out of Existence,” the administration contends that it would simply return the definition of sex and sex discrimination to what Congress intended when it passed Title IX (largely to provide more athletic opportunities for females) and other statutes employing the word, and before agencies unilaterally decided to expand it to include novel concepts such as ” gender identity ,” or even “gender fluidity,” says Banzhaf.
In the words of the New York Times, it would allegedly roll back a “series of decisions by the Obama administration [which] loosened the legal concept of sex in federal programs, including in education and health care, recognizing sex largely as an individual’s choice – and prompting fights over bathrooms, dormitories, single-sex programs and other arenas where gender was once seen as a simple concept.”
The concern underlying the proposed anatomy-based definition of sex is that when Congress passed Title IX, it used the word “sex” as it was generally understood and used at the time to mean, with rare exceptions, whether a person had a penis or a vagina.
Indeed, since Congress repeatedly refused to pass a federal statute which would prohibit discrimination against gay men and lesbian women based upon their sexual preferences, it seems unlikely that it would have created protections for the much small percentage of Americans who are transgender, and have much less political clout, suggests Banzhaf.
Only more recently, in an attempt to extend protection to groups that Congress probably did not mean to be included in the definition of the statute, have a small number of Washington bureaucrats sought to redefine the word to mean whatever gender a person thinks they are or would like to be, without even requiring any medical or other substantiation.
As the Times put it, “for the last year, health and human services has privately argued that the term ‘sex’ was never meant to include gender identity or even homosexuality, and that the lack of clarity allowed the Obama administration to wrongfully extend civil rights protections to people who should not have them.”
Roger Severino, the director of the Office for Civil Rights in the Department of Health and Human Services, termed the Obama policy a “radical gender ideology” and a “culmination of a series of unilateral, and frequently lawless, administration attempts to impose a new definition of what it means to be a man or a woman on the entire nation.”
The determination to use an anatomical definition of sex is based in part on a decision by federal judge Reed O’Connor who ruled – in a decision which temporarily halted enforcement of protections for transgender patients – that Congress prohibited discrimination based upon “the biological differences between males and females.” Congress did not understand “sex” to mean or include ” gender identity ,” he determined, saying Congress “adopted the binary definition of sex.”
Advocates of extending various benefits and protections for transgender people point to other court decisions which adopted a definition of “sex” to include “gender identity.”
But notes Prof. Banzhaf, who teaches Administrative Law, under well established administrative law rules, courts must give an enormous amount of deference in defining terms to what agencies say. Indeed, under the Chevron Doctrine, unless Congress has both clearly and precisely defined a word in a statute, a court must accept interpretation they agency has propounded, unless it is utterly unreasonable.
So, if the federal government, especially the four major agencies that enforce part of Title IX – the Departments of Education, Justice, Health and Human Services, and Labor – adopt a binary definition of “sex” based upon anatomy rather than feelings, courts will almost certainly be forced to accept it.
The problem is not only that agencies adopted novel definitions of “sex” to include sexual and gender identity and even sexual fluidity, but that they did so without going through the notice and comment process which is generally required before new binding federal rules are adopted.
This process would have permitted those with different views to at least propose them for agency consideration, says Banzhaf, something which was not done here. Thus the public, as well as Congress, was shut out of this rewriting of the scope of protection under various federal laws.
Returning the definition of “sex” to what Congress intended would not mean that transgender individuals would never have any protection, argues Banzhaf. What it would do is to allow Congress, not a handful of bureaucrats, to determine the appropriate scope of what that protection should be in a way which would balance their rights of all concerned.
The issue, argues Banzhaf, is who should decide, not the actual scope of protections.
For example, the Obama administration determined that schools had to permit any student who – without any proof or substantiation – claimed to be a M2F transgender person to use restrooms, showers, and locker rooms reserved for girls and females, even if it were a spur-of-the-moment claim and he had a beard or otherwise appeared to be male. This upset many people concerned about the invasion of privacy this caused to girls and women, and well founded concerns about sexual assaults and other inappropriate sexual conduct (e.g., peeping) by typical males who could claim to be transgender females.
Congress might well decide to take no action, thereby leaving the decision of who should be able to use which restroom to the states and their subdivisions, where it had been made for decides.
Another simple alternative which Banzhaf has advocated would be to abandon the concept that any student claiming to be transgender should be able to use any restroom he chooses, and instead use the legal standard applied in other similar situations, and require only that a school must make a reasonable accommodation to the interests of a transgender student.
As an example of the principle, religious beliefs are protected under Title VII by requiring that there be a “reasonable accommodation” to them. A similar scope of protection is provided by various Religious Freedom Protection Acts [RFPA] which are designed to protect religious interests.
Under them, deeply religious persons are not granted absolute freedom to practice their religious identity and beliefs no matter what the consequences; rather, they are entitled to no more than a reasonable accommodation to them.
As an even better example, a similar reasonable accommodation standard is applied to protecting the interests of those with disabilities under the Americans With Disabilities Act [ADA], says Banzhaf.
Thus, their fundamental right to enter and use a building is protected, but handicapped students do not have an absolute right to use each and every exit or entrance which may be available to others. Instead, the school need only make a reasonable number of entrances accessible to wheelchair users, notes Banzhaf.
Similarly, a school does not have to provide wheelchair access to all classrooms to adequately protect the rights of students in wheelchairs if there are a sufficient number of wheelchair-accessible classrooms to accommodate the small percentage of wheelchair-using students who do need them.
Using the same standard of gender identity, providing enough single-user restrooms to reasonably satisfy the requirements of the tiny percentage of students who are transgender might adequately protect their rights without opening up all female restrooms to anatomical males who might simply claim to feel female.
As between Congress and a few bureaucrats, most would agree that the former – who are elected and subject to the will of the people – should make important policy decisions, argues Banzhaf.