Senate Democrats to Secretary Azar: End Efforts to Redefine Sex to Exclude Transgender Persons

Senators: “We are concerned that this effort to redefine ‘sex’ is putting politics ahead of science and access to health care”

Redefinition of sex under Title IX endangers health care protections for transgender and gender nonconforming persons

Senators to Azar: Speak out against any proposal that discriminates based on gender identity or gender nonconformity

Washington, D.C. – Today, U.S. Senators Patty Murray, ranking member of the Senate Health, Education, Labor and Pensions (HELP) Committee, Dianne Feinstein (D-CA), ranking member of the Senate Judiciary Committee, and Richard Blumenthal (D-CT) led their colleagues in a letter to Department of Health and Human Services (HHS) Secretary Alex Azar demanding the Department end any effort to redefine sex to exclude transgender and gender nonconforming people.

“The redefinition of sex reported in The New York Times would have devastating consequences for millions of people who do not recognize themselves as the sex assigned to them at birth or who are gender nonconforming,” wrote the senators.  “…Instead of dedicating HHS resources to increase discrimination in education and health care, you should be working to vigorously enforce the civil rights laws that Congress has enacted to protect the rights of transgender and gender nonconforming people, including under Title IX and Section 1557 of the ACA.”

On October 21^st, The New York Times reported that an internal memo drafted by HHS officials proposed a redefinition of sex under Title IX of the Education Amendments of 1972 (Title IX). In their letter, the senators urged Secretary Azar to disavow the memo and speak out against any proposal that would undo non-discrimination protections on the basis of one’s sex, including one’s sexual orientation, gender identity, or gender nonconformity. The senators also raised concerns that redefining sex under Title IX would have a broad and dangerous impact on transgender and gender nonconforming patients’ health care, as the Affordable Care Act (ACA) prohibits discrimination in health programs based on definitions established in Title IX.

In addition to Senators Murray, Feinstein, and Blumenthal, the letter was also signed by Senators Tammy Baldwin (D-WI), Chris Van Hollen (D-MD), Thomas R. Carper (D-DE), Jack Reed (D-RI), Robert P. Casey Jr. (D-PA), Mazie K. Hirono (D-HI), Edward J. Markey (D-MA), Christopher A. Coons (D-DE), Jeffrey A. Merkley (D-OR), Christopher S. Murphy (D-CT), Catherine Cortez Masto (D-NV), Amy Klobuchar (D-MN), Bernard Sanders (I-VT), Sheldon Whitehouse (D-RI), Kirsten Gillibrand (D-NY), Patrick J. Leahy (D-VT), Benjamin L. Cardin (D-MD), Tim Kaine (D-VA), Kamala D. Harris (D-CA), Cory A. Booker (D-NJ), Ron Wyden (D-OR), Richard J. Durbin (D-IL), Tammy Duckworth (D-IL), Robert Menendez (D-NJ), Brian Schatz (D-HI), Sherrod Brown (D-OH), and Michael F. Bennet (D-CO).

The text of the letter is below and a PDF is available HERE.

Dear Secretary Azar:

We write to express our strong concern about reports that the U.S. Department of Health and Human Services (HHS) is engaged in an effort to redefine “sex” to exclude transgender and gender nonconforming people from federal civil rights. This action would have grave consequences for millions of individuals and families—depriving transgender and gender nonconforming people of critical protections under federal law. When asked about this on PBS News Hour, you said, “I would caution, do not believe everything you read in The New York Times,” yet gave evasive, indirect responses when pressed.^[1] We ask that you immediately bring an end to this effort and unequivocally disavow the reported memo.

In an article dated October 21, 2018, The New York Times reported that an internal memo circulated by HHS proposes to redefine “sex” under Title IX of the Education Amendments of 1972 (Title IX), which prohibits discrimination on the basis of sex in education programs.   Section 1557 of the Affordable Care Act (ACA) prohibits discrimination in covered health programs “on the grounds prohibited under […] title IX,” so redefining “sex” for purposes of Title IX would also impact a broad array of health programs. 

The report states that HHS is considering redefining sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.”^[2]  Furthermore, the press report states that your Department argues “[t]he sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence”^[3] and that disputes about an individual’s sex would be clarified using genetic testing.   The redefinition of “sex” described by The New York Times embraces an outdated view of sex and gender, and ignores the overwhelming consensus within the medical and scientific community that gender identity may, or may not, align with the sex assigned at birth. 

Furthermore, the American Psychological Association has called this redefinition of sex “wrongheaded” and said it “ignores the complexity of the spectrum of sex, including natural variation in gender identity and the existence of people with differences in sex development.”^[4]  When asked about the report, even your own Director of the Centers for Disease Control and Prevention said, “stigmatizing individuals is not in the interest of public health.”^[5] We are concerned that this effort to redefine “sex” is putting politics ahead of science and access to health care.

Redefining “sex” to include only “a person’s status as male or female based on immutable biological traits identifiable by or before birth” is an absurd approach to the law and is inconsistent with precedent. Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination in employment on the basis of race, color, religion, national origin, or sex. In 1989, the Supreme Court recognized in Price Waterhouse v. Hopkins that employment discrimination based on sex stereotypes (e.g., assumptions or expectations about how persons of a certain sex should dress, behave, etc.) is unlawful sex discrimination under Title VII.^[6] Furthermore, in 1998, the Supreme Court held in Oncale v. Sundowner Offshore Services that same-sex harassment is sex discrimination under Title VII.^[7] Justice Scalia noted in the majority opinion that, while same-sex harassment was “assuredly not the principal evil Congress was concerned with when it enacted Title VII . . . statutory prohibitions often go beyond the principal evil [they were passed to combat] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”^[8]

Since 2012, the U.S. Equal Employment Opportunity Commission (EEOC), which enforces Title VII and other civil rights laws, has taken the position that discrimination on the basis of sex prohibits discrimination on the basis of sexual orientation and gender identity. The EEOC’s guidance states, “Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex.”^[9] We agree with this approach, and so do many federal Courts.^[10]

The redefinition of sex reported in The New York Times would have devastating consequences for millions of people who do not recognize themselves as the sex assigned to them at birth or who are gender nonconforming.^[11]  Transgender and gender nonconforming people already experience harassment and discrimination at high rates.^[12]  We are also concerned that this arbitrary definition of “sex” could invite unlawful intrusions into individual medical and genetic privacy. Instead of dedicating HHS resources to increase discrimination in education and health care, you should be working to vigorously enforce the civil rights laws that Congress has enacted to protect the rights of transgender and gender nonconforming people, including under Title IX and Section 1557 of the ACA. 

We also ask for the following information no later than [two weeks from send date]:

1.     Provide a copy of the reported HHS memo proposing to redefine sex referred to in The New York Times article published on October 21, 2018.

2.     Identify all HHS personnel who were involved in drafting the memo referred to in The New York Times article published on October 21, 2018. 

3.     Did HHS consult with any other federal agencies regarding the reported memo prior to October 21, 2018?  If so, please identify each agency and its personnel that HHS consulted.

4.     Did HHS consult with any other federal agencies regarding the reported memo after The New York Times article was published on October 21, 2018?  If so, please identify each agency and its personnel that HHS consulted.

5.     Did HHS consult with any medical experts in developing the reported redefinition of sex?  If so, please identify all such experts and provide all reports, memos, proposals, correspondence, and other information that any such experts provided to HHS in connection with HHS’ leaked redefinition of “sex.”

6.     Did HHS consult with any individuals or organizations outside of the federal government in developing the leaked redefinition of sex?  If so, please identify all individuals and all reports, memos, proposals, correspondence, and other information that any such individuals provided to HHS in connection with HHS’ leaked redefinition of “sex.”

7.     Identify all medical and scientific evidence HHS used to reach the conclusion that a person’s gender should be determined by “immutable biological traits identifiable by or before birth.”

Given the seriousness of these reports, we hope you will speak out against any proposal that will lessen nondiscrimination protections based on sex, including sexual orientation, gender identity, or gender nonconformity, and unequivocally disavow the reported memo. Should you have any questions about this request, please contact Jake Cornett with Senator Murray’s staff of the Committee on Health, Education, Labor, and Pensions at (202) 224-0767 or Aparna Patrie of Senator Blumenthal’s staff of the Committee on the Judiciary at (202) 224-9132. Thank you for your attention to this important matter.

Sincerely,