On May 13th, the Obama administration issued “guidance” to school districts across the nation purporting to require them to allow biological boys unfettered access to girls’ lockers, showers, and bathrooms or risk losing federal education funds.
On the same day it issued a new Obamacare regulation requiring federally-funded physicians, hospitals, and insurers to assist or pay for gender identity transitioning treatments or surgeries with no religious exemption.
Just a few days earlier, the administration sued the state of North Carolina for alleged employment discrimination for not allowing biological men into the women’s restrooms in government offices.
The administration’s moves have prompted a massive backlash from people who are justifiably concerned about their safety, privacy and religious freedom, and who refuse to accept a federal government driven by such a radical gender ideology.
These latest actions are the culmination of a series of unilateral, and frequently lawless, administration attempts to impose a new definition of what it means to be a man or a woman on the entire nation.
The administration claims that when Congress banned “sex” discrimination in the 1960s, 70s, and more recently, what it actually banned was “gender identity” discrimination.
Congress banned no such thing.
The Constitution does not allow the Obama administration to go around the Congress and unilaterally rewrite laws it feels are lacking in order to impose its preferred policies on the nation, especially on such sensitive and controversial issues.
Obama’s policies insert the federal government into matters that are properly the domain of state and local authorities, they impose a one-size-fits-all policy on the nation, they endanger people’s privacy and safety, and they ignore the equality of all.
Parents, teachers, principals, hospitals, employers, professionals, businesses, and local officials have been working out nuanced solutions that are respectful to all affected parties in this sensitive area. They should be allowed to continue to reach reasonable solutions without threats of lawsuits and funding cuts by the federal government.
The Obama administration should not force Americans to conform or be taken to court, fined, or stripped of funding.
Neither the federal government nor courts should have the power to redefine what it is to be a man or a woman for all Americans. Congress should rein in the Obama administration’s attacks on Congress’s authority by making clear that when it passed laws using the word “sex,” it meant “sex”—not “gender identity.”
Congress can and should pass legislation to undo the confusion and harm unleashed by an overreaching executive branch and activist courts (stacked with liberal Obama appointees) in order to restore respect for the rule of law, federalism, and state, local, and private decision-making.
Three Options for Congress
Congress has at least three different ways of reasserting its authority.
1) Congress could make clear that all federal laws that refer to a person’s “sex” cannot be understood or interpreted by any court or federal agency to mean “gender identity” without explicit Congressional authorization. This would have the benefit of undoing the administration’s past and current abuses, as well as preventing future ones.
2) Congress could pass a statute offering the same clarification but targeted to just the specific federal laws the administration has abused, such as Title IX of the Education Amendments of 1972, Title VII of the Civil Rights Act of 1964, and Section 1557 of the Affordable Care Act, among others.
This would reiterate that when Congress referred to a person’s “sex” in these laws, the word referred then to what it continues to refer to now—a biological reality, not “gender identity.”
3) Congress could pass statutes based on its power of the purse. It could specify that the Departments of Education, Justice, and HHS (Health and Human Services), as well as the Equal Employment Opportunity Commission may not use any funds to implement or enforce its new administrative transgender directives or regulations against persons, institutions, schools, businesses, and governments that allegedly do not comply.
Additionally, Congress could specify that these agencies may not revoke federal funding for any purported non-compliance with the administration’s gender identity directives.
Congress Must Act
Most Americans are encountering questions related to transgender students for the first time. Important conversations are underway among citizens, but the Obama administration is trying to shut them down. The Obama administration is rushing to impose a top-down solution on the entire country. In response, Congress should act to preserve the right of the American people to have these conversations, consider all the relevant concerns and make policies that will best serve all members of their community.
Across America, people are considering how best to accommodate the privacy and safety concerns of transgender persons while also addressing the privacy and safety concerns of others, especially children and students.
They’ve been able to reach solutions, such as opening new single-occupancy restrooms and changing facilities for transgender students while keeping girls’ and boys’ rooms for biological girls and boys. But activists attacked these commonsense compromises as “transphobic.”
The Obama administration is attempting to force a one-size-fits-all policy on the entire nation rather than allow parents and teachers and local schools the time, space, and flexibility to find solutions that work best for everyone.
Congress must prevent the Obama administration from redefining what it is to be a man or a woman for all Americans. Congress must prevent the Obama administration from forcing Americans and their institutions to fall in line or be sued, stripped of funding, or forced out of business.
Ryan T. Anderson, Ph.D., researches and writes about marriage and religious liberty as the William E. Simon senior research fellow in American Principles and Public Policy at The Heritage Foundation. He also focuses on justice and moral principles in economic thought, health care and education, and has expertise in bioethics and natural law theory. He's the author of the just-released book, Truth Overruled: The Future of Marriage and Religious Liberty."
Roger Severino is the director of the DeVos Center for Religion and Civil Society at The Heritage Foundation.
Editor's Note: This piece was originally published by The Daily Signal.