A Brave New World of Transgender Policy

46 Pages Posted: 8 Feb 2018

Date Written: January 1, 2018

Abstract

This article explains why these new gender identity policies are unlawful and why they are bad policy. For example, when Congress passed Title IX of the Education Amendments in 1972, no one could have thought that “sex” meant “gender identity.” “Sex” did not mean “gender identity” then, and “sex” does not mean “gender identity” now. Federal bureaucrats have unlawfully attempted to rewrite federal law. And in doing so they have attempted to impose a bad policy on the nation. The Obama administration turned the purpose of Title IX on its head and favored the concerns of students who identify as transgender while entirely ignoring the concerns of other students. As this article explains, valid safety, privacy, and equality concerns exist, and the Obama administration ignored them. States and local schools should take these concerns seriously and find solutions that respect all Americans.

Part of the problem in using long-standing antidiscrimination laws to now enforce “gender identity” policies is that there is no clear understanding of what counts as “discrimination” on the basis of “gender identity.” This article explains that commonsense policies regarding bodily privacy and sound medicine are now simply being redefined as “discrimination”—just as “sex” is being redefined as “gender identity.”

This article closes with a roadmap on what needs to be done. In February 2017, the Trump administration took the first steps to reject the unlawful redefinition of “sex” from the Obama era. Congress should ratify this action and prevent a future administration from undoing it by specifying that the word “sex” in our civil rights laws does not mean “gender identity” unless the people, through their elected representatives, explicitly say so. And the people should not say so: neither Congress nor the states should elevate “gender identity” to a protected class in our civil rights laws. Instead, they should let private institutions make their own policies, and they should specify that access to sex-specific facilities in public institutions is to be generally based on biology, but any individual uncomfortable with this should be given a reasonable accommodation. Meanwhile, the courts should respect the democratic process by refraining from imposing new meanings on existing antidiscrimination statutes.

Keywords: Sex, Gender, Gender Identity, Transgender, Title IX, Privacy, Safety, Equality, Liberty, Discrimination, Antidiscrimination

Suggested Citation

Anderson, Ryan T., A Brave New World of Transgender Policy (January 1, 2018). Harvard Journal of Law and Public Policy, Vol. 41, No. 1, 2018. Available at SSRN: https://ssrn.com/abstract=3113625

Ryan T. Anderson (Contact Author)

The Heritage Foundation ( email )

214 Massachusetts Ave NE
Washington, DC 20002-4999
United States

HOME PAGE: http://www.heritage.org/staff/ryan-anderson

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