Senator Patty Murray's office issued the following:
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 21st, 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,
[1] William Brangham Interview Transcript with Secretary Azar, HHS Secretary on Medicare Drug Pricing, Gender Definitions, PBS News Hour (Oct. 25, 2018), available at https://www.pbs.org/newshour/show/dhhs-secretary-on-medicare-drug-pricing-gender-definitions
[2] Erica L. Green, Katie Benner and Robert Pear, Transgender Could be Defined Out of Existence Under Trump Administration, The New York Times (Oct. 21, 2018), available at https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-administration-sex-definition.html
[3] Id.
[4]
Press Release, APA Decries Apparent Administration Attempt to Erase
Transgender Definition in Federal Programs (Oct. 22, 2018), available at https://www.apa.org/news/press/releases/2018/10/erase-transgender-definition.aspx.
[5] Ike Swetlitz, CDC’s Redfield on Trump’s transgender proposal: Stigma is ‘not in the interest of public health’, StatNews (Oct. 23, 2018), available at https://www.statnews.com/2018/10/23/cdc-director-on-trump-transgender-proposal/.
[6] 490 U.S. 228 (1989).
[7] 523 U.S. 75 (1998).
[8] Id., at 79-80.
[9] Sex-Based Discrimination, EEOC, (N.D.), available at https://www.eeoc.gov/laws/types/sex.cfm.
[10] See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Oncale v. Sundowner Offshore Servs. Inc., 523 U.S. 75, 79 (1998); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000); G.G. v. Gloucester Cnty. Sch. Bd., No. 15-2056, 2016 WL 1567467, at *8 (4th Cir. Apr. 19, 2016); EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Smith v. City of Salem, 378 F.3d 566, 572-75 (6th Cir. 2004); Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Dodds v. U.S. Dept. of Education, 845 F.3d 217 (6th Cir. 2016); Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017); Schwenk v. Hartford, 204 F.3d 1187, 1201–02 (9th Cir. 2000); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011); Schroer v. Billington, 577 F. Supp. 2d 293, 306-08 (D.D.C. 2008); Tovar v. Essentia Health, cv-16-100-DWF-LIB (D. Minn. Sept. 20, 2018) Smith v. Avanti, 249 F. Supp. 3d 1149, (D. Colo. 2017); Lopez v. River Oaks Imaging & Diagnostic Group, Inc., 542 F. Supp. 2d 653 (S.D. Tex. 2008); Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267 (W.D. Pa. Feb. 27, 2017); Tronetti v. Healthnet Lakeshore Hosp., No. 03–CV–0375E, 2003 WL 22757935 (W.D.N.Y. Sept. 26, 2003); Cruz v. Zucker, 195 F.Supp.3d 554 (S.D.N.Y. 2016); Fabian v. Hosp. of Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016); Finkle v. Howard Cty., 12 F. Supp. 3d 780 (D. Md. 2014); Adams v. School Board of St. Johns County, 318 F.Supp.3d 1293 (M.D. Fla. Jul. 26, 2018); M.A.B. v. Board of Education of Talbot County, 286 F. Supp. 3d 704 (D. Md. 2018); Prescott v. Rady Children’s Hospital-San Diego, 265 F. Supp. 3d 1090 (S.D. Cal. 2017); E.E.O.C. v. Rent-a-Center East, Inc., 264 F. Supp. 3d 952 (C.D. Ill. 2017).
[11] Flores, Herman, Gates & Brown, How Many Adults Identify as Transgender in the United States?, The Williams Institute (June 2016), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/How-Many-Adults-Identify-as-Transgender-in-the-United-States.pdf.
[12] Haas & Rodgers, Suicide Attempts among Transgender and Gender Non-Conforming Adults, The Williams Institute (Jan. 2014), available at https://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP-Williams-Suicide-Report-Final.pdf.
