Josef Pieper once warned that “[p]ublic discourse, the moment it becomes basically neutralized with regard to a strict standard of truth, stands by its nature ready to serve as an instrument in the hands of any ruler to pursue all kinds of power schemes.” The words and definitions that make up the law are often the first victims of any ideological project, and the word “sex” never seems to catch a break. Until recently, that is.
Moving boldly to restore a standard of truth, the Department of Health and Human Services (HHS) just issued a proposed rule that would remove “gender identity” from the definition of sex in the nondiscrimination provisions of the Affordable Care Act (ACA). The point of antidiscrimination law is to prevent unfair treatment of individuals based on publicly verifiable, unchangeable characteristics, like skin color or age. Without any objective evidence to prove the existence of a “gender identity,” there is no room for this novel legal theory within the definition of “sex.”
When the ACA became law in 2010, its Section 1557 referenced longstanding civil rights laws prohibiting discrimination on the basis of race, color, national origin, sex, age, or disability. Civil rights protections exist as an acknowledgement of the limitations that flow from immutable characteristics, the things we cannot change about ourselves that may put us at a disadvantage. In 2016, the HHS reinterpreted discrimination “on the basis of sex” to include “gender identity,” which the department defined as one’s “internal sense of self as a man, woman, both, or neither.” In other words, your gender identity is anything but your sex. The concept of “gender identity” requires us to act as if our sexed body does not tell us—or anyone else—who we are. This definition gives men free access to women’s locker rooms based on nothing but his say-so, and grants mediocre male athletes the right to break women’s weightlifting records. Legal gender identity is not like the protected characteristics of sex or race or age. It is more like an ace up one’s sleeve, guaranteeing a win whenever interests clash.
Moreover, laws are not just rules; they are also pedagogical tools. Before the transgender tipping point in 2014, when state and municipal governments started tripping over each other to pass gender identity laws, most people had never heard of a transgender-identifying child. Fast-forward just five years and the phenomenon is at epidemic proportions. One pediatric gender clinic alone—of the nearly fifty clinics in the U.S.—has helped to alter the physical sex characteristics of almost seven hundred young patients.
In the U.K., where the government is considering a liberalization of gender identity law, there has been a 2,000 percent increase in the number of children seeking medical treatment due to gender identity over the last seven years. YouTube videos featuring kids transitioning via hormone injections get millions of views. And public schools with “gender inclusion” policies have become trans greenhouses, with one mother noting that 5 percent of the student body at her child’s school identified as trans, including her own daughter. When law and policy prop up the concept of gender identity, transgender identification follows.
Just downstream from law is the medical establishment, where gender identity can make things particularly ugly. Nearly every professional medical association in the U.S. now condones social and medical transition for anyone, no matter how young, should they exhibit behaviors outside the 1950s-era stereotypical norm for their sex. All this despite the fact that there is no scientific justification for the “born in the wrong body” theory. It is just not possible for a girl brain to direct the development of a boy body, or vice versa. But for some unscrupulous doctors who relish quasi-priestly status in a world without God, gender identity is the self-creation gospel. Dr. Norman Spack, the endocrinologist who founded the first pediatric gender identity clinic in the U.S., sees himself as a “midwife,” helping his patients “give birth to themselves.” Diane Ehrensaft, a psychologist and founding member of the UCSF Benioff Children's Hospital Child and Adolescent Gender Center Clinic, claims children “know” they are transgender before age two and communicate this status via pre-verbal “gender messages”—like when toddler girls pull barrettes out of their hair.
Thankfully, before the 2016 revisions of Section 1557 could come into effect, the HHS was sued by a number of states and health insurers concerned that the redefinition of sex would lead to violations of medical practitioners’ conscience rights. The litigants knew that if sex was redefined as gender identity, then “gender confirming” procedures to reshape or remove healthy organs would have to be redefined as medically necessary. Those lawsuits resulted in a nationwide preliminary injunction with respect to the inclusion of the gender identity provision in Section 1557, and helped to instigate the recent proposed rule change.
We don’t need “gender identity.” Not in our law, not in our language, and not as an aid to self-understanding. We are embodied human persons. We are men and women, boys and girls, and the ways we choose to act, dress, and relate to others cannot change that fact. The word that best communicates our wholeness and psychosomatic unity is “sex.”
Like the HHS, we would do well to scrap “gender identity” altogether. When it comes to human beings, sex is better than gender.
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