The Trump administration issued a new response Monday to the New York Times’ report that it is considering a plan to erase transgender people from recognition under federal nondiscrimination laws. This attempt to blame the Obama administration for the current circumstances is not only false, but further undermined by conservative groups’ praise for the news.
In a statement calling the Times’ story “misleading,” Health and Human Services spokesperson Caitlin Oakley insisted that the department does “not comment on alleged, leaked documents that purport to indicate the status of deliberations or the focus of the department.”
“The Obama administration’s broad definition of ‘sex’ was enjoined by a federal court on a nationwide basis in December 2016 and the Obama administration did not appeal,” Oakley said. “That court found that the Obama administration regulation was overbroad and inconsistent with the text of the 1972 Title IX law prohibiting discrimination on the basis of sex. The court order remains in full force and effect today and HHS is bound by it as we continue to review the issue.”
It is Oakley’s explanation that is misleading, however, because it was the Trump administration’s choices to embrace discrimination that led to the current situation.
Back in 2016, conservatives launched two different challenges to guidance the Obama administration had issued. First, a group of states led by Texas filed a lawsuit challenging guidance the administration had issued interpreting Title IX to protect transgender people in education and the workforce.
Then, a group of states and religious health care providers led by Texas filed a separate suit challenging the Obama administration’s interpretation of Section 1557 of the Affordable Care Act, its nondiscrimination provision, to ensure transgender people had equal access to health care. This case also involved Title IX, because Congress drafted the law such that Section 1557 incorporates its protections on the basis of sex as they are laid out in Title IX.
That Texas was the lead on both suits is no coincidence. Texas Attorney General Ken Paxton (R) figured out he could rig a “forum shopping” system to make sure he got the same conservative judge in every suit he filed against the Obama administration. U.S. District Judge Reed O’Connor is the only judge who presides over the Wichita Falls division of the Northern District of Texas, which is uncoincidentally where both suits were filed. And O’Connor ruled against the Obama administration in both cases.
O’Connor first ruled against the Title IX interpretation in August of 2016. Just in time for the school year to start, he issued a sweeping nationwide injunction prohibiting the Obama administration from taking any steps to protect transgender kids from discrimination. The Obama administration did appeal that decision.
Then, on December 31, O’Connor issued an injunction in the Section 1557 case, relying on his previous interpretation from August that “sex” does not include gender identity and instead only refers to “the biological and anatomical differences between male and female students as determined at their birth.” With barely three weeks left in the Obama administration, it did not have the opportunity to file a lawsuit before President Trump took power.
As of January 20, 2017, it was up to the Trump administration to decide how to proceed in both cases. Shortly after President Trump took office in 2017, his Department of Education rescinded the trans-inclusive Title IX guidance that the first suit had challenged. As a result, the case was dismissed as moot, which also dissolved the court’s injunction. The Obama administration’s appeal disappeared.
In the Section 1557 case, the Trump administration chose not to appeal the decision, instead asking O’Connor to keep his injunction in place and just let HHS “reevaluate the regulation and address the issues” brought forth in the suit. He granted this stay in July of 2017, ordering HHS to provide updates about its progress reevaluating the rule. Since then, the administration has filed seven bimonthly status reports, all indicating that the proposed new rule — which is not open to be read by the public — is still under consideration.
In other words, Oakley’s comment that O’Connor’s injunction is still in place is only true because the Trump administration itself asked for it to remain in place. And the proposed new rule is likely the very same proposal to completely erase gender identity laid out in the memo leaked to the Times. The memo’s language narrowing the definition of sex by emphasizing biology and anatomy closely mirrors O’Connor’s own language in his decisions.
While O’Connor’s injunction continues to prevent HHS from enforcing Section 1557 on behalf of transgender people, several other federal courts have since ruled that Section 1557 does protect transgender people from discrimination on the basis of their gender identity.
Contradicting Oakley’s claim that HHS is somehow bound by the decision, conservative groups have only praised the administration for proactively pursuing anti-trans policies, giving it full credit for rolling back transgender protections. The Heritage Foundation’s Ryan T. Anderson, for example, said, “Thankfully, it appears that the Trump administration has rejected Obama’s transgender agenda and understands the word ‘sex’ correctly as a bodily reality.” Roger Severino, the director of HHS’s civil rights division who is pushing for the proposal, has a long history of anti-LGBTQ advocacy working at the Heritage Foundation.
The Family Research Council’s Tony Perkins likewise jested that “this ‘new’ definition of ‘sex’ is 54 years old,” describing the administration’s actions as simply “returning America to the status quo.” The fact Perkins prefers a status quo before transgender people were visible and protected in society is one of many reasons his organization has been designated a hate group. “What President Trump is doing is following the law — which, after eight years of Barack Obama’s overreach, is suddenly a shocking concept,” he said.
At The Federalist, an outlet that publishes almost daily screeds against transgender equality, David Marcus called the proposal a “common-sense move,” adding that using such a narrow definition of sex “is the only sensible path, and the administration is right to follow it.”
The administration may be trying to play itself off as just being coy on this issue, but every one of its actions clearly demonstrates an agenda driven by undermining transgender people. Nobody on either side appears to be convinced otherwise.