HHS Leading Charge to Narrowly Define Sex In Disregard of Transgender Identities

According to an internal administration memorandum obtained and reported on by the New York Times, the Department of Health and Human Service’s Office for Civil Rights is working on a proposed rule that would narrowly define sex for purposes of Title IX. Under the memo’s proposed definition, sex means “a person’s status as male or female based on immutable biological traits identifiable by or before birth.” And, “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.”

The apparent goal of such a definition is to limit the protection Title IX affords to transgender students, particularly in facilities like bathrooms and locker rooms. HHS’s effort is responsive to the recent wave of judicial decisions that have found in favor of transgender students asserting their civil rights in that context. However, I think it would still be possible to successfully challenge transgender discrimination in the courts, even if this proposed definition becomes part of HHS and other agencies’ Title IX regulations — for two reasons. First, many transgender students who have succeeded in the courts have won on equal protection grounds as well as Title IX, and the administration’s definitions under Title IX or other statutory law cannot alter the Constitution or the courts’ interpretation of it. Second, defining “sex” in a narrow and biological manner does not necessary foreclose a judicial interpretation of “sex discrimination” that covers discrimination against a student because they are trans. The way some courts view it, trans discrimination is sex discrimination because it is motivated by the fact that one’s biological or birth-assigned sex is not consistent with one’s gender identity and expression. A regulatory definition of sex that is limited to biological and birth assigned traits does not necessarily undermine this view.

One other point: if you are wondering what HHS has to do with Title IX, yes, it is unusual for that agency to step out ahead of the Department of Education on Title IX policy, given ED’s primary responsibility for administering Title IX. While every agency that administers a program that provides federal funding to education institutions is responsible for ensuring that it is not subsidizing sex discrimination with taxpayer dollars, they typically do so by taking the lead from the Department of Education and adopting its regulations as their own. ED currently does not have rule or policy that defines sex, having withdrawn the previous administration’s pro-transgender policy earlier in this president’s administration. ED seems to have its hands full dealing with the sexual misconduct rules, and/or lacks the political motivation to put transgender rights on the top of its agenda. HHS on the other hand, whose Office for Civil Rights is lead by a known opponent of LGBT rights, has been consistently targeting transgender rights for the duration of this administration — such as by scaling back nondiscrimination protections under 1557, and by promulgating rules that would let health care providers opt out of providing care to transgender patients when they have a religious objection to doing so. In conclusion, the big questions in light of this news are: to what extent will HHS’s anti-trans agenda be permitted to infect the entire administration, and will the administration’s efforts undermine the effort to secure transgender rights through the federal courts?