October 22, 2018 - Monday
Old News: Gender Isn't Neutral
This isn't exactly the age of responsible journalism -- so this weekend's New York Times probably doesn't surprise anyone. But for every American sick of fake news (and according to polls, that's everyone), Sunday's headline was one for the record books. "'Transgender' Could Be Defined out of Existence under Trump Administration," the banner read, triggering mass hysteria in liberal quarters across the country. There's just one problem: not one bit of it is true.
No one is "defining transgenders out of existence." What President Trump is doing is following the law -- which, after eight years of Barack Obama's overreach, is suddenly a shocking concept. Under the last administration, liberals were so used to the president twisting the rules to suit the Left's agenda that it's news when Donald Trump decides to operate within the plain text of law. As far as the New York Times is concerned, the most "drastic" thing any president could do is bring America back in line with legal statutes. And this non-story that's setting the far-Left's hair on fire is nothing more than that.
In Sunday's piece, a trio of reporters argues that the Trump administration is disenfranchising people by defining gender as it always has been: a "biological, immutable condition determined by genitalia at birth." No one is quite sure how that's radical, since it's how the law has been understood both before and since 1964. Not a single president questioned it until Obama, who decided that he didn't care what the Civil Rights Act said. He was going to "reinterpret" the 54-year-old law on "sex" discrimination to mean "sexual orientation" and gender identity too.
That's how the Obama administration justified its gender-confused school bathroom and shower mandate. They argued that people who identify as transgender were somehow part of the broad umbrella of "sex" outlined in the law in 1964. But, as FRC and others argued, sexual orientation wasn't on the minds of legislators 54 years ago when it was trying to weed out prejudice -- and more importantly, it wasn't in the text of the law it passed! Even the courts, where liberals turn when the public isn't on board with its extremism, called it a bridge too far. A half-century ago, Judge Reed O'Connor ruled, "Congress did not understand 'sex' to include 'gender identity.'"
The Obama White House's agenda was so unpopular by 2016 that some experts even blamed Hillary Clinton's loss on her defense of it. Through it all, Donald Trump's position was clear: "I believe it should be states' rights, and I think the states should make the decision, they're more capable of making the decision." More than that, he understood what his predecessor did not: the White House never had the authority to rewrite the law in the first place! After his election, Trump set to work rolling back the lawless gender policies of the Obama administration -- first in schools, then in homeless shelters, prisons, and now in Health and Human Services contracts.
Now, almost two years later, the New York Times still thinks it's breaking news that this administration is systematically returning America to the status quo. Insisting it found some sort of smoking gun in a leaked HHS memo, the Times implies that President Trump is doing something nefarious by rolling back his predecessor's orders. "For the last year," its reporters write, "the Department of Health and Human Services has privately argued that the term 'sex' was never meant to include gender identity or even homosexuality, and that the lack of clarity allowed the Obama administration to wrongfully extend civil rights protections to people who should not have them."
This "new" definition of sex, the Times insists, "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." First of all, this "new" definition of "sex" is 54 years old. Secondly, who are these 1.4 million Americans? The Times didn't bother citing the statistic, and it certainly seems higher than most credible national surveys. Lastly -- and perhaps most instructively -- people who identify as transgender don't enjoy special federal recognition under the law, because the American people have never passed any legislation granting it. Liberal activists have had to rely on a handful of courts or lawless administrations like Obama's to short-circuit the democratic process and force their agenda on America.
The Times' agenda is obvious -- painting Trump as the extremist, when the real radicalism was ignoring the law in the first place. Well, reporters may be out of practice with the truth these days, but it's time they came to grips with one important reality. The president is not a legislator, no matter how much Obama acted like one. If they want America to change the way it defines discrimination, they need to start by asking the right branch of government.
For more on the "sex" vs. "gender identity" debate, check out our paper on Title IX. For a more general overview of the transgender issue, try our other publication: "The Transgender Movement and 'Gender Identity' in the Law."
Tony Perkins' Washington Update is written with the aid of FRC Action senior writers.