A BRAVE NEW WORLD OF TRANSGENDER POLICY.

• Author: Anderson, Ryan T.

INTRODUCTION

On New Year's Eve 2016, a group of Roman Catholic nuns breathed a heavy sigh of relief just before the clock struck twelve. That night a federal judge placed a nation-wide injunction on a Department of Health and Human Services (HHS) mandate that would have forced all healthcare plans regulated under Obamacare to cover sex-reassignment procedures, and that would have forced all relevant healthcare workers to perform them. (1) Because of the judge's ruling, the hospital run by the nuns would be safe. So, too, would the health insurance plan they provide to their employees.

Think back to Hobby Lobby and the Little Sisters of the Poor, and their victories at the Supreme Court. (2) This Transgender Mandate was the HHS Contraception Mandate on steroids--or hormones, as the case may be. The federal judge enjoined the mandate not simply because it was likely to violate religious liberty--though it was--but also because it was likely to be contrary to the very words of the statute it purported to implement. (3) As this article explains, the healthcare transgender regulation was unlawful because HHS redefined the word "sex" to mean "gender identity" without legal authority to do so. In attempting to impose this "gender identity" policy, the HHS regulations would have penalized medical professionals and health care organizations that, as a matter of faith, moral conviction, or professional medical judgment, believe that maleness and femaleness are biological realities to be respected and affirmed, not altered or treated as diseases. (4)

On the same day that the HHS regulation was finalized, May 13, 2016, the Departments of Justice and Education sent a gender identity "Dear Colleague" letter to our nation's schools. This letter told schools that they must allow "students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity" because "both federal agencies treat a student's gender identity as the student's sex for purposes of enforcing Title IX." (5)

Title IX is a 1972 law banning discrimination on the basis of sex in federally funded education programs. (6) It was intended to protect women and girls from harassment and discrimination, to ensure that they receive equal opportunities in education. Forty-four years later, the Obama administration was unlawfully re-writing it to say that schools must allow boys unfettered access to the girls' bathrooms, locker rooms, dorm rooms, hotel rooms, and shower facilities. Anything less than full access to the sex-specific intimate facility of one's choice, apparently, is a transphobic denial of civil rights and equality.

The Obama administration explicitly rejected compromises such as single-occupancy facilities, stating, "A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so." (7) And when it came to campus housing or hotels for off-campus trips, the Obama administration said that "a school must allow transgender students to access housing consistent with their gender identity and may not require transgender students to stay in single-occupancy accommodations." (8)

The guidelines also stated that a "school may not require transgender students to have a medical diagnosis, undergo any medical treatment, or produce a birth certificate or other identification document before treating them consistent with their gender identity." (9) The administration went on to say, "Gender identity refers to an individual's internal sense of gender." (10) In other words, sheer say-so makes it so. The Obama administration, in essence, entirely gave into the demands of transgender activists.

Prior to the Obama administration's actions, parents, teachers, and local school districts could have conversations about how best to accommodate the dignity, privacy, and safety concerns of students who identify as transgender while also addressing the dignity, privacy, and safety concerns of other students. Schools could create balanced solutions that were age-appropriate and nuanced given the type of institution: kindergartens and grade schools, high schools and colleges, and graduate schools and law schools could all adopt well-tailored policies. No one assumed that a one-size-fits-all federal mandate would be appropriate for students of all ages in all types of educational institutions.

Parents, teachers, principals, and school administrators, in conjunction with students, tried to find win-win solutions for all of the parties involved and came up with appropriately tailored proposals. Schools facing this issue were sensitive to the feelings of embarrassment and discomfort that students who identify as transgender would face were they to be required to share bathrooms or locker rooms with persons of the same biological sex. At the same time, they recognized that students of the other biological sex also had dignity, privacy, and safety concerns of their own.

The solution that schools generally settled upon was to give the student who identified as transgender limited access to other facilities--such as faculty facilities, the teacher's lounge, or the faculty locker room--or to provide single-occupancy restrooms for any student that did not feel comfortable using a multiple-occupancy intimate facility. They found a way to accommodate both the student who identified as transgender and the rest of the students. These nuanced solutions addressed all involved and reflected their dignity, privacy, and safety concerns.

These proposed solutions existed long before the recent surge in high-profile media attention on transgender issues, and details were being worked out at the local level without generating much controversy. But activists attacked these commonsense compromise policies as "transphobic." And so, on May 13, 2016, the Departments of Justice, Education, and Health and Human Services all capitulated to the demands of trans activists.

A few months later, on September 20, 2016, the Department of Housing and Urban Development finalized a rule that required homeless shelters, battered-women shelters, and other emergency shelters to "provide all individuals, including transgender individuals and other individuals who do not identify with the sex they were assigned at birth, with access to programs, benefits, services, and accommodations in accordance with their gender identity." (11) This new rule overturned a 2012 rule that exempted single-sex emergency shelters with shared sleeping areas or bathrooms from President Obama's gender identity policy.

Previously, the administration was willing to admit that granting access to sex-specific shelters based on biology was not bigotry. Not so any longer. The new rule not only overturned that previous exemption for emergency shelters, it also contained no exemption for shelters run by religious organizations. And it paid no consideration at all to the particular vulnerabilities of people who need emergency shelters--women fleeing domestic and sexual abuse, or homeless people who themselves on average have higher rates of sexual abuse and mental health problems--and how gender identity policies might negatively impact these people. (12)

Examples of political overreach on "gender identity" can be multiplied. But these three examples are sufficient for now to help illustrate the problem. In healthcare, in education, and in housing, the government was attempting to impose a radical transgender agenda on citizens by redefining "sex" as "gender identity"--and then saying long-standing laws prohibiting discrimination on the basis of "sex" now require special privileges based on "gender identity."

This article explains why these new gender identity policies are unlawful and why they are bad policy. For example, when Congress passed Title IX of the Education Amendments in 1972, no one could have thought that "sex" meant "gender identity." "Sex" did not mean "gender identity" then, and "sex" does not mean "gender identity" now. Federal bureaucrats have unlawfully attempted to rewrite federal law. And in doing so they have attempted to impose a bad policy on the nation. The Obama administration turned the purpose of Title IX on its head and favored the concerns of students who identify as transgender while entirely ignoring the concerns of other students. As this article explains, valid safety, privacy, and equality concerns exist, and the Obama administration ignored them. States and local schools should take these concerns seriously and find solutions that respect all Americans.

Part of the problem in using long-standing antidiscrimination laws to now enforce "gender identity" policies is that there is no clear understanding of what counts as "discrimination" on the basis of "gender identity." This article explains that commonsense policies regarding bodily privacy and sound medicine are now simply being redefined as "discrimination"--just as "sex" is being redefined as "gender identity."

This article closes with a roadmap on what needs to be done. In February 2017, the Trump administration took the first steps to reject the unlawful redefinition of "sex" from the Obama era. (13) Congress should ratify this action and prevent a future administration from undoing it by specifying that the word "sex" in our civil rights laws does not mean "gender identity" unless the people, through their elected representatives, explicitly say so. And the people should not say so: neither Congress nor the states should elevate "gender identity" to a protected class in our civil rights laws. Instead, they should let private institutions make their own policies, and they should specify that access to sex-specific facilities in public institutions is to be generally based on biology, but any individual uncomfortable with this should be given a reasonable accommodation. Meanwhile...