HHS restores legal meaning of ‘sex’ — what will US Supreme Court, Congress do?
In the very last year of Barack Obama’s presidency, the Department of Health and Human Services made a major change to his signature legislative achievement, the Affordable Care Act. Implemented six years after the ACA became law, the rule change redefined the department’s view of “sex” to include “gender identity,” defined as an internal sense of being “male, female, neither, or a combination of male and female.”
As you might imagine, the rule change—which also included an administrative double-down on a demand that medical professionals participate in abortion—was widely celebrated among many in the media and political class as President Obama rode a wave of accolades on his way out of Washington, D.C. But recently, the Trump administration announced it is reversing that decision, publishing a regulatory proposal that will go into effect after a 60-day waiting period.
Restoring the meaning of “sex” was the right thing to do. In medical settings, the decision to abandon “sex” as an objectively understood, biologically based reality hasn’t worked out very well. In fact, adopting a subjective, feelings-based ideology has created a variety of unpredictable situations for medical professionals to navigate, threatened the conscience rights of medical professionals who believe their oath to “do no harm” extends to divisive procedures like so-called sex-reassignment surgery, and placed many patients in harm’s way.
Recently, for example, the New England Journal of Medicine told the story of a pregnant woman whose labor signs were ignored at a hospital, costing her baby’s life. What caused the hospital staff to miss the tell-tale indications that she was in labor? It’s because the patient arrived at the hospital identifying as a man rather than a biological woman.
Tragically, by the time nurses and doctors realized they had been dealing with a woman in labor pains rather than a man with unexplained cramping, it was too late to save the baby’s life. And some in the mainstream media blamed the hospital for not anticipating that a man could be in labor!
While this may sound like an extreme example, it’s this very collision between gender ideology and biological reality that caused HHS under President Trump to reverse the previous administration’s attempt to redefine “sex” under federal law.
We can’t expect to change the meaning of “sex” without causing big problems—especially for women and children. When their interests and those of “gender identity” collide—whether in women’s homeless shelters, high school restrooms, or in women’s sports—it’s women and girls who lose. That’s incredibly ironic, because laws like Title VII and Title IX were enacted to help women have equal opportunities.
Amazingly, the self-styled “champions of women” in the U.S. House of Representatives recently passed the so-called Equality Act, which would actually hurt women—biological females—because of someone else’s beliefs about their gender. The act would allow men who identify as women to sleep in overnight shelters next to women who have been abused or raped. And it would allow males who say they are female to take women’s places on athletic teams and award podiums.
The idea that men can be women based on their subjective beliefs also sets the stage for confusion and harm in the business sphere. In a case my organization, Alliance Defending Freedom, is set to argue before the U.S. Supreme Court this fall, a small Detroit-area funeral home owned and operated by the same family for over a century could be the latest of many casualties of federally imposed gender ideology.
When a male employee informed Harris Funeral Home owner Tom Rost that he believed he was a woman and would start dressing as one at work, contrary to the funeral home’s sex-specific dress code, Tom immediately became a pawn in the larger campaign to replace biological “sex” with “gender ideology.” Now, Tom’s only recourse to save his family’s 100-year-old business has been to plead his case before the Supreme Court.
No business owner should be punished for following existing laws, yet this is exactly what has happened to Tom. And it’s typical of the unpredictable environment we create by redefining “sex” to include “gender identity.”
Kudos to the Trump administration for this much-needed change. Let’s hope the U.S. Supreme Court and Congress realize the many harms to women and girls before similarly trying to change the meaning of sex.
John Bursch is vice president for Appellate Advocacy and senior counsel for Alliance Defending Freedom. He served as Michigan’s solicitor general from 2011 to 2013.