After Inaugural Rhetoric on Unity, Biden Signs Divisive Transgender Executive Order

KEY TAKEAWAYS

  1. In his inaugural address, President Joe Biden stressed he wants to be the president of all Americansโ€”left and rightโ€”and bring healing and unity to the nation.
  2. Actions speak louder than words. And on his very first day in office, Biden signed a radically divisive executive order mandating the transgender agenda.
  3. Theย outcomes donโ€™t look very good. Privacy and safety at a shelter, equality on an athletic field, and good medicine are at stake for everyone.

In his inaugural address, President Joe Biden stressed he wants to be the president of all Americansโ€”left and rightโ€”and bring healing and unity to the nation. Actions speak louder than words. And on his very first day in office, Biden signed a radically divisive executive order mandating the transgender agenda.

Hereโ€™s what it says:

โ€œChildren should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.โ€

โ€œPeople should be able to access health care and secure a roof over their heads without being subjected to sex discrimination.โ€

And hereโ€™s what it means:

Boys who identify as girls must be allowed to compete in the girlsโ€™ athletic competitions, men who identify as women must be allowed in women-only spaces, healthcare plans must pay for gender-transition procedures, and doctors and hospitals must perform them.

Sounds unifying, right?

In reality, it spells the end of girlsโ€™ and womenโ€™s sports as we know them. And, of course, no child should be told the lie that theyโ€™re โ€œtrapped in the wrong body,โ€ and adults should not pump them full of puberty-blocking drugs and cross-sex hormones.

With this executive order, the so-called โ€œtransgender momentโ€ has arrived at the White House. If you want to prepare yourself to effectively respond, youโ€™ll want to read my book, โ€œWhen Harry Became Sally: Responding to the Transgender Moment.โ€

The Biden executive order cites Justice Neil Gorsuchโ€™s majority opinion in Bostock v. Clayton County as justification for this radically divisive transgender policy. But although the simplistic logic of the Gorsuch opinion in Bostock suggests some pretty bad outcomes, we canโ€”and shouldโ€”resist Gorsuchโ€™s simplistic logic.

Hereโ€™s how Gorsuch summarizes his own test:

โ€œIf the employer intentionally relies in part on an individual employeeโ€™s sex when deciding to discharge the employeeโ€”put differently, if changing the emยญployeeโ€™s sex would have yielded a different choice by the emยญployerโ€”a statutory violation has occurred.โ€

Now change the word โ€œemployerโ€ to teacher, principal, coach, doctor, health care plan, or homeless shelter, and change the word โ€œemployeeโ€ to student, athlete, patient, or housing guest.

โ€œIf the coach relies on the athleteโ€™s sexโ€”if changing the athleteโ€™s sex would yield a different choiceโ€ฆโ€ โ€œIf the homeless shelter relies on the guestโ€™s sexโ€”if changing the guestโ€™s sex would yield a different choiceโ€ฆโ€

The outcomes donโ€™t look very good. Privacy and safety at a shelter, equality on an athletic field, and good medicine are at stake for everyone.

We canโ€”and shouldโ€”defend commonsense policies that take seriously the bodily differences that provide valid bases in some areas of life (locker and shower rooms, athletics, womenโ€™s shelters, health care) for treating males and females differently (yet still equally).

An unstated, frequently unexplored aspect of any โ€œdiscriminationโ€ claim is that two instances be โ€œcomparable,โ€ that the two employees, or athletes, or patients, or shelter guests be โ€œsimilarly situated.โ€ Perhaps in the employment context Gorsuch couldnโ€™t see this, but health, education, and housing provide starker instances.

Start with health. Consider a case where a patient accuses a doctor or hospital or health care plan of โ€œdiscriminationโ€ because they wonโ€™t perform or offer or pay for breast removal as part of a โ€œgender transitionโ€ procedure. 

The first thing to note is that Gorsuchโ€™s testโ€”โ€œif changing the patientโ€™s sex would have yielded a different choice by the doctorโ€โ€”doesnโ€™t apply. Change the patientโ€™s sex and there are no breasts to remove.

Indeed, as I point out in โ€œWhen Harry Became Sally,โ€ recognizing differences between the sexes is increasingly regarded as vitally important for good medical practice, because scientists have found that male and female bodies tend to be susceptible to certain diseases in different ways, to differing degrees, and that they respond to treatments differently.

These differences do not have to do with how people choose to โ€œidentify.โ€ They have to do with what men and women are: males or females of the human species.

The Institute of Medicine at the National Academy of Sciences published a report in 2001 titled โ€œExploring the Biological Contributions to Human Health: Does Sex Matter?โ€ The executive summary answered the question in the affirmative, saying that the explosive growth of biological information โ€œhas made it increasingly apparent that many normal physiological functionsโ€”and, in many cases, pathological functionsโ€”are influenced either directly or indirectly by sex-based differences in biology.โ€ 

Because genetics and physiology are among the influences on an individualโ€™s health, the โ€œincidence and severity of diseases vary between the sexes.โ€

Far from its being discrimination to โ€œrely on a patientโ€™s sex,โ€ it is a requirement of good medicine, which is sex-specific to the male or female body of the patient.

But thatโ€™s not all. Suppose the argument is that the doctor/hospital/insurer covers double mastectomies in the case of cancer, but not in the case of gender dysphoria. For a discrimination claim to be successful, youโ€™d have to argue that a patient with cancerous breast tissue is comparable, similarly situated to a patient with healthy breast tissue.

Perhaps some physicians will argue that the non-cancerous breasts are in fact unhealthy because they are the cause of the gender dysphoria. That will only further highlight that what we really have here is a disagreement about the diagnosis and treatment of gender dysphoria. And policiesโ€”like the Trump administrationโ€™s regulation on Section 1557 of the ACAโ€”are entirely defensible for refusing to treat a disagreement on medical care as if it were discrimination based on identity.

Something similar is true for the Trump policies on Title IX and school sports. For an argument about discrimination to succeed, youโ€™d have to say that an athlete with male muscle mass, bone structure, and lung capacity (to take just a few specifics) is comparable, similarly situated to an athlete with female muscle mass, bone structure, and lung capacity. 

If you can recognize that these are not in fact comparable, similarly situated individuals, then itโ€™s hard to make a claim that โ€œdiscriminationโ€ in the pejorative sense has occurred.

Yes, weโ€™ve treated males and females differentlyโ€”we have an NBA and a WNBAโ€”but that is precisely in order to treat them equally. Equalityโ€”fairnessโ€”in athletic competition frequently requires taking the bodily differences between males and females seriously.

By comparison, it never requires taking skin color into account. Thankfully, the days of racially segregated sports are over. Our skin color makes no difference to what we do on the athletic field. Nor does it make a difference in the bathroom, locker room, or shelter. Thatโ€™s why bans on racial discrimination did away with separate facilities for black and white.

But bans on sex discrimination did not do away with separate facilities for male and femaleโ€”a reality that Gorsuchโ€™s simplistic test for discrimination fails to account for. The reason? A person with male genitalia is not comparable, not similarly situated to a person with female genitalia when it comes to an emergency shelter or locker room. As a result, this aspect of the Trump administrationโ€™s Housing and Urban Development rule on sex-based housing is eminently defensible.

Biden is now in the process of undoing these Trump-era administrative actions. Thus, weโ€™ll need litigation and legislation not solely on religious liberty, but on the substantive issues at stake: privacy and safety in single-sex facilities, equality and fairness in single-sex sports, and good medicine based on the realities of our biological make up as male or female human beings.

Through litigation and legislation, we need to make it clear that itโ€™s lawful to act on the convictions that we are created male and female, and that male and female are created for each other, that no institution has to let males compete against females in sports, that no institution has to allow males into women-only locker-rooms and shelters, that no physician has to engage in so-called โ€œgender-affirmingโ€ care.

By Ryan T. Anderson, Ph.D.
Former Senior Research Fellow

Read Original Article on Heritage.org

The Thinking Conservative
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