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Published On: Fri, Nov 13th, 2015

HHS under attack over federal law changes to appease gender identity politics, discrimination

Alliance Defending Freedom filed an official comment this week with the U.S. Department of Health and Human Services regarding its proposed rule that reinterprets a federal ban on sex discrimination in Title IX of the Education Amendments of 1972 as a broader ban on “gender identity” discrimination in health programs. As the ADF comment explains, both Title IX itself and court precedent make clear that the law has nothing to do with gender identity, and only Congress has the authority to change it.

“No government agency can unilaterally redefine the meaning of a federal law to serve its own political ends,” said ADF Legal Counsel Jonathan Scruggs. “Once again, the administration is overreaching what it is legally and constitutionally allowed to do. HHS has no authority to reinterpret a clear, congressionally enacted law in a way that violates that law’s text, purpose, structure, legislative history, and 40-plus year history of judicial interpretation.”

photo Marcus Werthmann

photo Marcus Werthmann

Proposed rule 45 CFR 92 seeks to implement a section of Obamacare that incorporates the anti-discrimination language from other federal statutes, including Title IX. Although Title IX says, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” the proposed rule assumes a ban on gender-identity discrimination in that Title IX language.

“But Title IX never mentions gender identity, much less defines ‘sex’ to include gender identity…,” the ADF comment explains. “HHS cannot justifiably reinterpret sex to mean gender identity in the health care context based on the faulty interpretations from other agencies. So at most, HHS cites four cases to justify its misinterpretation, but these cases either do not interpret Title IX at all or do not support HHS’s interpretation or do not consider the enormous weight of contrary precedents. Even more telling, HHS never analyzes Title IX’s text, purpose, structure, or legislative history, each of which confirms that sex in Title IX means sex, not gender identity.”

The comment goes on to explain that Congress, not an agency of “unelected administrators,” has the power to make law:

“HHS provides no bases for changing Title IX’s long-standing and well-accepted meaning, especially when that change will violate people’s constitutional right to privacy and to religious freedom. The proposed rule, therefore, will lead to unnecessary lawsuits…and will waste taxpayer dollars in the process. This comment…proposes that HHS follow a better course for its proposed rule – actually follow what Title IX says.”

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