Published May 13, 2022
The Department of Justice recently sent a letter to state attorneys general to “remind” them of several federal constitutional and statutory obligations that allegedly prohibit discrimination on the basis of gender identity.
This letter follows the DOJ’s politicization of the department to support the Biden administration’s preferred policy positions. Notable examples include investigating parents for protesting critical race theory and transgender ideology at school-board meetings; suing Texas over its heartbeat law that protects life in the womb; and inserting itself into court cases challenging state laws in Arkansas and Alabama that prohibit providing minor children with puberty blockers, cross-sex hormones, and “gender transition” surgeries.
Rather than being medically authoritative and legally sound, the DOJ’s claims in the letter are based on gender ideology and are in lockstep with the Biden administration’s prioritization of and push for expansive gender-identity policies “simply everywhere” in the federal government (which I document in depth here).
In its letter, the DOJ falsely claims that “gender-affirming care” (which ranges from puberty blockers and hormones to breast removal, genital reconstruction, and facial feminization surgeries) is “medically necessary” and “well established within the medical community” despite growing evidence to the contrary and the lack of medical consensus both domestically and internationally. For instance, earlier this year, Texas’s attorney general determined that the sterilizing treatments and procedures used for gender transitioning could constitute child abuse when performed on minor children. The determination was vehemently opposed by the Biden administration, even though the Food and Drug Administration has never approved as safe or effective the use of puberty blockers or cross-sex hormones for children (or adults) who wish to transition, and the Centers for Medicare & Medicaid Services rejected a nationwide coverage mandate for adult gender-transition surgeries due to insufficient scientific evidence of medical necessity.
In short, the very treatments pushed by the Biden administration as harmless and routine are, in fact, experimental and progressively sterilizing and irreversible.
Along with the letter’s medical shortcomings, it also falls short in the legal department. The DOJ claims that gender-transition treatments, including for minors, are protected by the 14th Amendment’s Equal Protection and the Due Process Clauses. In support of this point, the letter relies on several DOJ amicus briefs and Fourth and Seventh Circuit cases involving access to school bathrooms for students who identify as transgender brought under Title IX and the Equal Protection Clause. The DOJ continues to push the unsettled Equal Protection Clause claim in its complaint challenging the Alabama Vulnerable Child Compassion and Protection Act that protects minors from medical gender-transition drugs and procedures.
The letter also claims that Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, which prohibit discrimination on the basis of sex in federally funded health care and education activities, respectively, also prohibit discrimination on the basis of gender identity. The letter cites extra-regulatory “notifications of interpretation” by the Department of Health and Human Services and Department of Education, where the departments unilaterally determined, in contradiction to duly enacted regulations (see here and here), that the sex-discrimination prohibitions in federally funded health care and education include discrimination based on gender identity.
Draft regulations supporting this position are currently under review at the White House and are expected to be formally revealed soon. But apparently the administration does not think it must wait for the legally required regulatory process before issuing statements of law that contradict existing regulations.
Taking a strange turn, the letter implies that those who identify as transgender, or at least those who experience gender dysphoria, could have a disability. Gender dysphoria is the clinical diagnosis of psychological distress people feel when they do not subjectively identify with their biological sex.
The Left had long ago rejected the idea that homosexuality was in any way a disability, but simply a variant of normal. Is the Biden administration really conceding that gender dysphoria makes people so different that it counts as a disability? Or is it simply claiming disability nondiscrimination protections for those with gender dysphoria because it is politically expedient?
The DOJ writes that, “Section 504 of the Rehabilitation Act of 1973 protects people with disabilities, which can include individuals who experience gender dysphoria. Restrictions that prevent, limit, or interfere with otherwise qualified individuals’ access to care due to their gender dysphoria, gender dysphoria diagnosis, or perception of gender dysphoria may violate Section 504.” Section 504 is the federal law that prohibits discrimination based on a person’s disability in federally funded programs and activities, including of state or local governments, colleges or other institutions of higher education, and corporations or private organizations.
Based on the DOJ’s statements, an uninformed reader would assume that Section 504 covers gender-dysphoria discrimination. But Section 7 of the same act explicitly states that for purposes of Section 504 (and other sections), “The term ‘individual with a disability’ does not include an individual on the basis of homosexuality or bisexuality[,] . . . transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” (emphasis added). Thus, Section 504 does not consider gender dysphoria a disability unless it is the result of a physical impairment, which is generally not the case. Yet no statements in the DOJ’s letter reflect this prohibition and qualification.
At best, the DOJ was sloppy with the letter’s medical claims and legal analysis in the administration’s rush to push gender ideology. At worst, the letter was a deliberate attempt to obfuscate the limits of gender medicine and the law in an attempt to “encourage” state attorneys general to push the Biden administration’s preferred policies over legal obligations.
Rachel N. Morrison is a fellow at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. She is a former attorney adviser at the Equal Employment Opportunity Commission.