“Transgender” Is Not A Federal Civil Rights Category

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As for the agenda of the Obama administration to invent the civil rights category of “transgender identity” and insert it into federal laws without the involvement of Congress, it is well to review where it stands right now, at the beginning of the Trump administration. The holdings of the three recent cases described below show that the legislative usurpations by the Obama administration on this subject can be cured and eliminated by new executive action by President Trump.

In Franciscan Alliance v. Burwell, a case originating in Texas, Christian medical associations, citing religious liberty, and eight states, citing the Tenth Amendment, sued to stop the Obama administration from forcing them to provide “gender transition surgery” and abortion. The Franciscan Alliance identified itself as providing “faith-based, integrated healthcare,” and the Christian Medical and Dental Society stated its purpose as “integrating faith with professional practice.” The Affordable Care Act (ACA) of 2010 had explicitly incorporated Title IX of the Education Amendments of 1972, the civil rights statute prohibiting sex discrimination in education. In 2016, the Department of Health and Human Services (HHS) promulgated a new ACA rule likewise incorporating the sex-discrimination prohibition but deliberately omitting that part of Title IX that allows exemptions based on religion and abortion. Substituting gender for sex, HHS’s new rule defined “gender identity” as “an array of possible gender identities beyond male and female.”

The federal district court ruled on the last day of 2016 that “the text, structure, and purpose” of Title IX showed that Congress unambiguously “intended to prohibit sex discrimination on the basis of the biological differences between males and females.” Since the passage of Title IX in 1972. Congress had had several legislative opportunities, the court observed, to expand or replace “sex” with “gender.” — “If Congress had intended to enact a new, different, or expansive definition of sex discrimination” in the Affordable Care Act, “it knew how to do so.” In ruling that the words “sex” and “gender” had different legal meanings, the court also referred to outside sources, including from the gay and transgender community, as in this statement from a transvestite journal, “I, at least, know the difference between sex and gender.”

In GG v. Gloucester County School Board, the notorious “bathroom” case, a transgender student sued a Virginia school district in 2015 demanding to be allowed to use the bathroom facilities of his choice. Whereupon the United States Department of Justice joined the suit to support GG. The civil rights law at issue was Title IX again which includes a statutory provision allowing “separate living facilities for the different sexes” and which the United States Department of Education (DOE) had always interpreted as permitting “separate toilet, locker room, and shower facilities on the basis of sex.”

Undeterred by the law and its own longstanding regulations, the Department of Education in 2015 issued an “opinion letter” requiring schools “to treat transgender students consistent with their gender identity.” The district court ruled that the regulatory record “at most” allows school districts to take gender into account concerning bathroom facilities, but it does not “require that sex-segregated bathrooms be separated on the basis of gender, rather than on the basis of birth or biological sex.” The Department of Education, the court ruled, had violated the laws governing the actions of executive agencies through the use of “a mere letter and guidance document,” instead of by the necessary formal rulemaking process. Allowing DOE to do so “would be dangerous” and “could open the door to allow further attempts to circumvent the rule of law – further degrading our well-designed system of checks and balances.”

GG appealed to the Fourth Circuit Court of Appeals which overturned the decision of the district court in 2016. The school board then appealed to the Supreme Court, which has issued an order staying the case for the time being. The appeals court actually agreed with the district court as to “the only reasonable reading” of the law and DOE’s longstanding regulation, which refers “unambiguously to males and females.” Schools are permitted “to provide separate toilet, locker room, and show facilities for its male and female students,” the court concluded.

However, the appeals court went on to contradict what it stated was this “straightforward conclusion” by unaccountably going on to say that there was “more than one plausible reading” of the law. The court said, for example, that other federal agencies were contemporaneously advancing the same gender-identity agenda. In addition to this invocation of the bandwagon effect, the court went on to speculate about extreme situations like the loss of genitalia in an accident, sex-reassignment surgery, and the case of an “intersex individual.” How to adapt these situations to Title IX, the court wondered.

In EEOC v. G.R. Funeral Homes, the Equal Employment Opportunity Commission filed a suit under Title VII, the federal civil rights statute that prohibits sex discrimination in employment, on behalf of a male employee who had been fired for stating that he was about to start dressing as a woman. The Michigan funeral home where the employee worked had separate male and female dress codes. Like the holdings in the other two cases where the Obama administration attempted to add gender identity to Title IX, the district court in 2015 ruled that “like sexual orientation, transgender status or gender identity is currently not a protected class under Title VII.

In 2016, the same district court followed up that conclusion by also ruling that the agency had invaded the religious liberty of the funeral home, the owner of which believed that he “would be violating God’s commands if he were to permit an employee who was born a biological male to dress in a traditionally female skirt-suit at the funeral home.” The court ruled under the Hobby Lobby decision that the EEOC was attempting to “to impose a substantial burden on the ability of the Funeral Home to conduct business in accordance with its sincerely-held religious beliefs.”

Considered together, the holdings of these cases should not be surprising. For, the first and most basic rule of statutory interpretation is to consult the “plain meaning” of the words of a statute. Changing the “plain” and what the Fourth Circuit called the “straightforward” meaning of the words of a federal statute is constitutionally assigned to Congress. And if simple words like “sex,” a concept that everyone understands, no longer have a “straightforward” meaning, then there is nothing to stop the executive and judicial amendment of laws with words like “intersex,” a term that, it is probably safe to say, 99 percent of American do not know the meaning of. As a result, the very notion of a public law becomes impossible. The Trump administration can end the Texas and Michigan cases simply by withdrawing, and that will likely end the Virginia case as well.

Thomas Ascik recently retired as an assistant United States attorney.