October 23, 2018

Leaked HHS Memo

On Sunday, the New York Times reported that “the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs... by defining [sex] as a biological, immutable condition determined by genitalia at birth."

New York Times

See past issues

From the Left

The left is concerned that this change will harm transgender individuals by reversing progress made during the Obama administration.

“Researchers say gender identity comes from the brain, not the body. Some put it more bluntly: It originates between your ears, not between your legs. But the forces that [act] on the brain to shape that identity are not [yet] understood...No one knows for sure why body and mind sometimes do not match. But being transgender is not a matter of choice... For transgender people, it is generally an overwhelming sense that their gender is not the one on their birth certificate."

New York Times

The exclusion of LGBTQ people is a big hole in civil rights laws...

"It’s not explicitly illegal for someone to be fired from a job, evicted from a home, or kicked out of a business just because an employer, landlord, or business owner doesn’t approve of the person’s sexual orientation or gender identity. But civil rights advocates have long argued that federal law should already shield LGBTQ people from discrimination because, they say, bans on discrimination on the basis of sex should also bar discrimination based on sexual orientation and gender identity.”


According to the former director of the Office for Civil Rights at HHS, "Not only does [the memo] say that gender identity is not covered by current civil rights laws, but that the definition of gender is based on your sex assigned on birth and what your genitals are at birth... If you want to claim otherwise, you are under obligation to present reliable genetic evidence to the contrary. That’s a phenomenal invasion of privacy."


“This is a proposal by the government imposing an expectation that everyone look and act in one of two ways, and that everything in between is somehow not right—an aberration, an anomaly, a flaw, a problem, a disease—rather than a marvel of the natural world, a way that humans survive and thrive not despite but because of our complexity as a species."

The Atlantic

Some note that “the path from memo to concrete policy is long and winding... In some cases, the memos likely become public because an insider (or insiders) want to encourage the public to advocate against the recommendation. In other cases, the leak could be a trial balloon from the administration, a way to check the reaction before implementing a policy change. Leaked memos are, in essence, a projection of what could happen if no one bothers to stop it... There is often still room for the courts and advocates to stop them.”


From the Right

The right believes the move is necessary and aligned with common sense.

The right believes the move is necessary and aligned with common sense.

“This policy would not prevent any person from identifying as any gender they please; despite the outrage-filled headline put forth by the New York Times, this policy would not write transgenderism out of existence. This potential law would cement protections for biological sex under the law; gender identity would not be protected under the law, as it never has been."


“If approved, the new proposed Title IX rules wouldn’t mandate discrimination, but would only establish in law that schools receiving federal funds have no Title IX obligation to [accomodate gender identity]. For example, there will be no federal mandate to open female locker rooms and bathrooms to boys who identify as girls."

The American Conservative

“[This] will allow the government to have an objective standard when implementing federal programs. Without such a standard, a haphazard set of rules exists as to who qualifies for legal protections under Title IX... College athletics, where men who identify as women have unfair advantages, is one example; another is set-aside or quota programs... It makes no sense at all that a 40- or 50-year-old man, who has enjoyed the benefits of his sex for his entire career, can decide he is a woman and receive the benefit of the set-aside."

The Federalist

This is simply returning to “the definition of sex that’s been in use for all of recorded history... Can you name another instance – just one, single instance – where provable, established science has been overruled by both the government and even politically charged members of the scientific community based on nothing beyond what a person tells you they sincerely believe?"

Hot Air

“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... [especially because] Democratic members of Congress had tried — and failed — to amend federal nondiscrimination statutes many times...  

“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 anargument about identity... [This is] not denying anyone’s existence. It’s standing athwart a lawless redefinition of biological reality and quite appropriately yelling stop.”

National Review

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