Last Friday, the headline of a breathless New York Times article read, “‘Transgender’ Could Be Defined Out of Existence By Trump Administration. Not true.
According to the New York Times, a memo from the Department of Health and Human Services would instruct government agencies to “define gender as a biological, immutable condition determined by genitalia at birth.” Thus, “an explicit and uniform definition of gender” would be used across government policy, and would be understood “on a biological basis that is clear, grounded in science, objective and administrable.”
Also in the memo, “sex” would be defined as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.”
The Times called this “the most drastic move yet in a government-wide effort to roll back recognition and protections of transgender people under federal civil rights law.”
Here are two important things to know.
First, at least at the time I’m recording this, no one outside of the Times and the Department of HHS has seen the memo, or even knows what it says. Still, the breathless hysteria quickly spread to other media outlets, the LGBT community, and its allies.
Second, even if the Times report accurately describes the memo, the alleged proposal simply restores the status quo from less than five years ago. In 2014, as David French explains, “the Obama administration quietly expanded the definition [of sex] — without an act of Congress or even a regulatory rulemaking process” – deciding that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity…”
What followed was a series of what French called “extraordinarily aggressive mandates” from the Obama administration. For example, that notorious “Dear Colleague” letter sent to school districts across the country, stating the word “sex” should be understood to include gender identity, which it defined as “an individual’s internal sense of gender.”
The mandate required schools to “use a transgender student’s chosen pronouns” and to “open bathrooms, locker rooms, overnight accommodations, and even some sports teams to students based…(on) their chosen gender identity.”
So, if Trump’s memo defines transgenders out of existence, wouldn’t that mean Obama’s memo defined them into existence? Of course not. Individuals with deep confusion about their sexual identity pre-existed both memos. Obama’s memo didn’t create them, but by mandating government-run agencies to redefine reality, it did create a lot of problems.
And so a biological male, complete with mustache, won Connecticut’s 100-meter girls’ high school track and field championship.
When Congress passed Title IX in 1972, it never anticipated that the word “sex” would be applied to include “gender preference.” But after numerous failed attempts to align federal anti-discrimination laws like Title IX with the new sexual orthodoxy, the Obama administration decided to amend the law via a memo.
Of course, that’s not how the constitutional system is supposed to work. Redefining “sex” for the purpose of federal law is the job of Congress, not the Executive Branch.
All that’s being proposed here, if the memo that no one has seen is even as “bad” as the Times reports, is a reversal of extra-constitutional lawlessness.
One Times’ columnist claimed that the administration regarded her as the equivalent of a mythical creature such as the hippogriff. Over at Slate, a columnist wrote about denying the humanity of transgender Americans. All of this is nonsense, of course, examples of the classic tactic of “you either fully affirm me on my terms, or you deny my humanity.”
Nothing of the sort is going on here. What’s going on is that the authority to change the law is being returned to its rightful place: Congress.