Today I learned something truly new. I’d lived my life on this earth almost 49 years before I understood that federal anti-discrimination law defines human existence. Changing that law can thus literally “negate the humanity of people.”
At least that’s what I’m learning in response to the news that the Trump administration is considering rolling back the Obama administration’s lawless expansion of Title IX, the federal civil-rights statute banning sex discrimination in federally funded education programs. At issue is the definition of the word “sex.”
In April 2014, the Obama administration quietly expanded the definition — without an act of Congress or even a regulatory rulemaking process. In a document called “Questions and Answers on Title IX and Sexual Violence” it stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”
Empowered by this new definition, the Obama administration issued extraordinarily aggressive mandates to schools across the nation, requiring that schools use a transgender student’s chosen pronouns and that they open bathrooms, locker rooms, overnight accommodations, and even some sports teams to students based not on their biological sex but their chosen gender identity.
Again, this was done without an act of Congress and without even a regulatory rulemaking process. Democratic members of Congress had tried — and failed — to amend federal nondiscrimination statutes many times. So the Obama administration did it without Congress. Obama’s legendary “pen and phone” purported to change the law.
When the Trump administration gained power, it rolled back Obama-era transgender directives, including the sweeping education mandates, but it has not formally responded to the previous administration’s expansion of the scope of the statute.
According to a story in Sunday’s New York Times, however, that might change. The administration may issue formal guidance establishing a biological definition of sex. Specifically, the administration may define sex to mean “a person’s status as male or female based on immutable biological traits identifiable by or before birth.”
This is the basic definition of sex that has existed for millennia. It’s the basic definition of sex as understood by the men and women who drafted and passed Title IX. In our constitutional republic, if one wishes to amend this definition, then the proper path is through legislation, not the Obama administration’s bureaucratic memo. Indeed, in multiple jurisdictions across the country, legislators have done exactly that — amended nondiscrimination law to explicitly protect “gender identity.”
This is Civics 101. But news that the Trump administration was merely considering returning the bureaucratic interpretation of the relevant statute to its original meaning brought a truly puzzling reaction. The administration wasn’t merely interpreting a statute, it was defining transgender people out of existence. It was dehumanizing them.
The New York Times story about the potential change was headlined, “Transgender Could Be Defined Out of Existence Under Trump Administration.” The actual text of the story was more tempered, but it contained this odd paragraph:
The new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves — surgically or otherwise — as a gender other than the one they were born into.
Writing in the Times opinion pages, Jennifer Finney Boylan went even farther, declaring, “I was surprised to learn on Sunday morning that I do not exist.” Boylan continued:
On Sunday, news broke that the Trump administration seeks to narrowly define gender as an immutable condition determined by genitalia at birth. About 1.4 million Americans who identify as transgender would find that identity eradicated by the federal government.
Not to be outdone, Evan Urquhart wrote in Slate that “the Republican campaign to deny the humanity of transgender Americans has now reached its logical endpoint.”
This makes no sense. Even if the Trump administration changes regulatory definitions to match the obvious statutory intent, it doesn’t deny any person’s humanity or existence. Every single American is still protected by every single provision of the Bill of Rights (and every other constitutional right). Every single American still enjoys the benefit of every other generally applicable statute.
In reality, the claim that you “dehumanize” a person if you hold contrary beliefs about sex and gender is a common, inflammatory rhetorical tactic that creates a false choice. Either you recognize a transgender person on their own terms, or you “deny their humanity.” You “deny their existence.”
Wrong. I believe that each and every single human being is created in the image of God. We are of equal worth and value in His eyes. I also recognize that some percentage of those human beings have gender dysphoria, but that condition does not transform a man into a woman or a woman into a man. To hold to the belief that men cannot get pregnant and women do not have penises is not to deny any person’s humanity. It’s to reject an argument about identity.
Transgender people did not flash into existence on April 29, 2014, when the Obama administration altered its interpretation of Title IX. They will not flash out of existence if the Trump administration returns to traditional and intended statutory definitions.
The rhetoric is out of control. Members of the Trump administration are considering applying conventional rules of statutory construction to correct an Obama-administration overreach. No one is being written out of the human race. Instead each and every objecting person possesses the unalienable right to raise his or her voice, and — if they persuade a sufficient number of legislators — to change the law.
But even if the law changes, the truth does not. The Trump administration’s proposed regulatory change conforms the law to the truth. Defending that truth isn’t dehumanizing. It’s not denying anyone’s existence. It’s standing athwart a lawless redefinition of biological reality and quite appropriately yelling stop.