First your schools, now your healthcare: Obama sidesteps Congress to redefine "sex"

The following is a guest post by my Alliance Defending Freedom Colleague Samuel Green.


President Obama’s administration insists on forcing boys and girls in our nation’s public schools to share restrooms and locker rooms with each other. But instead of just targeting vulnerable children who must attend school, the administration seeks to expand its agenda to include vulnerable patients in dire need of healthcare.


How is the Obama administration doing this? As with much of its agenda, instead of going through Congress—where the people’s representatives would almost certainly reject its proposals—the administration is bypassing Congress by way of illegal executive agency action.

Congress writes laws. Executive agencies don’t; they merely implement the laws Congress passes. But the Obama administration has consistently ignored this essential division of governmental power and evaded voter accountability by rewriting the people’s laws through raw exercises of agency power.

Currently, the Department of Health and Human Services, one of the agencies under the Obama administration’s control, is trying to adopt a regulation that claims to “interpret” a provision of the Affordable Care Act. But instead of implementing Obamacare as written by Congress, which would be permissible, HHS seeks to rewrite it, which is impermissible.

Obamacare bans specific types of discrimination by certain healthcare providers. To ban sex discrimination, Obamacare incorporates Title IX’s prohibition on sex discrimination in the educational context and applies it in the healthcare world. Fine. But here’s where things get complicated: HHS asserts that Title IX’s ban on “sex” discrimination is also a ban on “gender identity” discrimination.


If you’ve seen a birth certificate, you probably understand the meaning of “sex.” You are either a male or a female, based on your biology. The doctors and nurses in the delivery room don’t ask the baby or the parents what sex to write in the charts.

Congress understood that when it banned “sex” discrimination in Title IX. Leading dictionaries of the time defined “sex” in biological terms. And despite the legislators’ desire to eliminate invidious “sex” discrimination, their statements demonstrate that they did not intend to eliminate legitimate sex-based differentiations based on biological realities.

For example, the Senate sponsor of the legislation did not view Title IX as requiring “integration of dormitories between the sexes,” “the desegregation of football fields,” or “that the men’s locker room be desegregated.” Similarly, he did not see Title IX as prohibiting sex-based separation “in classes for pregnant girls or emotionally disturbed students, in sports facilities or other instances where personal privacy must be preserved.”

HHS seeks to discard this elementary understanding of the meaning of “sex” and the legitimate reasons for distinctions based on physiological differences. It does this by arguing that the law’s ban on “sex” discrimination is also a ban on “gender identity” discrimination—where “gender identity” is “an individual’s internal sense of gender.” In other words, if your physical attributes all scream “male,” but the whisper in your heart says “female,” HHS thinks you must be treated as a female.


What does this mean? It means, for example, that when a loved one is waiting for care in a crowded emergency room, they may encounter someone of the opposite sex in the public restroom. Why? Because HHS will say that it is “gender identity discrimination” to prevent a man from using the ladies’ room if his “internal sense” says he is a woman.

How about the assisted living facility for your parents or grandparents? If they need to share a room due to financial reasons, will they be comfortable sharing a room with a stranger of the opposite sex who doesn’t “identify” with his or her biology?

The list of unfortunate possibilities could continue, and they are not imaginative. HHS’s proposed regulation uses the same incorrect interpretation of Title IX that Obama’s Department of Education is using to force schools to allow boys and girls to use locker rooms and restrooms consistent with their gender identity. This has resulted in tense struggles between schools, parents, and the Obama administration.

Having compassion for those struggling with gender dysphoria is proper. But with that noble aim as its cover, HHS seeks to ignore the constitutional framework for lawmaking and rewrite a statute in a way that disregards the privacy and health concerns of millions of Americans. This overreach is something all Americans should oppose.


Samuel Green is legal counsel with Alliance Defending Freedom.


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