The Trump administration has proposed the idea of recognizing “sex” as “biological sex” for purposes of Title IX, according to a draft memo leaked to the New York Times.
This seemingly innocuous proposal has sparked a firestorm.
First, a brief background. Title IX prohibits discrimination “on the basis of sex” in federally funded programs. It was passed in 1972 as part of the Education Amendments Act to ensure that women have access to educational programs equivalent to men’s programs.
In 2016, the Obama administration issued a guidance letter reinterpreting “sex” to include sexual orientation and gender identity. The letter required schools to “‘treat a student’s gender identity as the student’s sex for purposes of Title IX.” This drastic reinterpretation was done without an act of Congress or even the normal rule-making process for regulations. It was clearly an act of bureaucratic overreach.
And it spurred a frenzy of disputes over trans students claiming access to spaces restricted to the opposite sex—bathrooms, locker rooms, showers, dormitories, sports teams, and so on.
Then, in 2017, the Trump administration rescinded the Obama guidelines. But it left unclear just what the law does require. Hence the administration’s current effort to provide a clear, uniform definition of the term “sex.”
The memo suggests that “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.” In this way, sex will be determined “on a biological basis that is clear, grounded in science, objective and administrable.”
Who could object to science and objectivity? Lots of people, apparently. The New York Times reported the story with the overheated headline “Trump Administration Eyes Defining Transgender Out of Existence.”
Actually, no. The administration is merely saying that Title IX does not apply to trans people. No one is being defined “out of existence.” There are lots of laws that do not apply to you or me, and that fact does not deny our existence.
Jonathan Weisman, deputy Washington editor of The NYT, likewise indulged in histrionic overstatement, tweeting, “The Trump Admin has a new definition of sex that would render 1.4 million transgendered people legally nonexistent.”
Not exactly. The administration is saying that discrimination “on the basis of sex” means biological sex, not gender identity. Trans people still enjoy all the ordinary protections of other citizens, including the Bill of Rights and all other constitutional rights.
George Takei, the “Star Trek” actor, tweeted, “The Trump administration is trying to make trans people disappear by defining gender as only male and female, determined by genitalia at birth.”
Come back to earth, Mr. Takei. The administration is not trying to make people “disappear.” The fact is that Title IX was originally intended to apply to biological sex — which, by the way, is established not at birth but long before birth. Most parents use ultrasound to discover their babies’ sex before they are born.
Planned Parenthood panicked, tweeting, “This is horrifying. These inhumane, cruel, and discriminatory policies are dangerous.” (Ironic, considering that words like “inhumane” and “cruel” describe what Planned Parenthood itself does — tearing apart tiny babies.)
In reality, the current administration is seeking to correct the Obama administration’s overreach. The lawmakers who passed Title IX in 1972 did not mean sexual orientation and gender identity. They wanted to protect women’s rights. Period.
Ironically, Obama’s reinterpretation had precisely the opposite outcome. It undercut women’s rights by reducing biological sex to a social construct.
Trans ideologues say what counts are not objective facts but subjective feelings. They insist that people with penises and prostate glands are “women” if they feel like women. Or that people with uteruses are “men” if they feel like men. That’s why we see misleading headlines like “Man Gives Birth to Healthy Baby” (in reality, a woman living as a man whose female biology is still intact).
The problem is that if we can no longer define women by objective, scientific criteria, then we can no longer legally protect women as a class. We cannot legally protect a category of people if we cannot identify that category.
Private feelings are important, but public law must be based on scientific facts.
Nancy Pearcey is professor and scholar in residence at Houston Baptist University and editor-at-large of the Pearcey Report. Her latest book is Love Thy Body: Answering Hard Questions about Life and Sexuality.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.
