THE BIDEN ADMINISTRATION IS OBLITERATING WOMEN AND GIRLS
Disclaimer to what follows: I am not an expert in federal administrative procedural law. I really hope that I am wrong about all of this. If I am, I hope that someone who IS an expert will tell me what I have got wrong.
It is happening. It is exactly as bad as it seems, and no one should be confused. Everything that Janice Raymond predicted in 1979 has come to pass. Everything that the 11th Hour Blog posts about is reality. None of this is a conspiracy theory.
On his first day upon taking office, President Biden signed Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. Many of us, myself included, naively assumed that this would mean that within 100 days, federal agencies would put forth proposed rules for notice and public comment, as required by the Administrative Procedure Act. None of that has happened. Instead, the Administration has meticulously, and with no notice or opportunity for public comment, simply been obliterating sex as a meaningful category throughout federal administrative law.
In February, the Department of Housing and Urban Development (HUD) issued a memo announcing that it will interpret the word sex to include “gender identity” throughout U.S. housing law. That means the end of any women-only housing, including domestic violence shelters and college dormitories, because the reach of the memo, which governs HUD’s interpretation of the Fair Housing Act, covers “nearly all housing, including private housing, public housing, and housing that receives federal funding,” according to HUD’s website.
In March, the Department of Justice (DOJ) announced that Title IX’s prohibition of discrimination on the basis of sex will be interpreted to also prohibit discrimination on the basis of “gender identity.” That means the end of women’s and girls’ sports at all federally-funded institutions.
Yesterday, the Department of Health and Human Services (HHS) announced that it had submitted a final rule to the Federal Register explaining that it would interpret the word sex to include “gender identity” in evaluating complaints of discrimination regarding the provision of health care under the Affordable Care Act (ACA). That means that women will not be permitted to demand female health care providers for gynecological care in any health care facility that receives federal dollars.
All of this has been accomplished with no notice or opportunity for public comment.
But in the meantime, HHS is flat-out lying to the American people. Section 1557 of the ACA is codified (i.e., written into the official U.S. Code) at 42 U.S.C. 18116. On its website, HHS states: “Section 1557 prohibits discrimination on the basis of race, color, national origin, sex (including sexual orientation and gender identity), age, or disability in covered health programs or activities. 42 U.S.C. § 18116(a).” This is patently false. 42 U.S.C. 18116(a) makes no mention of “gender identity” whatsoever.
What all of these agencies are actually doing is using the Supreme Court’s ruling in Bostock v. Clayton County, which held that people cannot be discriminated against on the basis of “transgender status” in employment (Title VII), to justify the complete obliteration of sex as a meaningful category throughout all of U.S. law, despite the Supreme Court’s express insistence that its ruling was limited to the employment context. In its decision, the Court stated:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.”
Bostock was a bad decision for women and girls, and many U.S. feminists have been saying so since it was issued in June, 2020. One of the reasons that Bostock was bad for women and girls is that it granted that “transgender status” is legally protected as sex (without ever explaining what “transgender status” means). Another is that many of us (rightly, as it happens) predicted that it would be used to justify the obliteration of sex throughout federal law.
In April, the U.S. chapter of the Women’s Human Rights Campaign (WHRC USA) sent this letter, signed by nearly 1500 women all over the world, to the White House. In it, we stated:
We, the undersigned women from around the world, are appalled and disgusted by the savage assault on the rights, privacy, and safety of women and girls that was committed by the “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” and by subsequent developments, as outlined below. Your cruelty will be remembered globally.
Anyone, anywhere, is welcome to submit that letter to the White House using its contact page at any time (you don’t have to be a U.S. resident). The page will not accept links, so you have to copy and paste the URL. Please feel free to tell my President that you object to the obliteration of women and girls throughout U.S. law, and the impacts that his actions will have on women and girls, globally.
Previously, on March 8, WHRC USA submitted this letter to Senate Majority Leader Charles Schumer, also signed by approximately 1500 women globally, imploring him not to bring the so-called Equality Act to the Senate floor. On March 16 (just for fun, also my birthday), WHRC USA submitted this testimony before the Senate Judiciary Committee, explaining why we oppose the Equality Act as written. We received written confirmation that the testimony was provided to all members of the Committee. We are glad to see that the Senate has not acted on the Equality Act. But it is now clear that the Administration is doing by executive fiat what the Senate has not done legislatively. All without any input from the American people.
The Women’s Liberation Front has conducted polling demonstrating that a majority of the American people support protecting single-sex spaces. Our Administration knows this and does not care.
The thumbnail image* used on this post is a picture of me holding a sign and standing on the grounds of the U.S. Monument, behind the White House, on March 8 of this year (International Women’s Day). The sign was hand-made, using an image of a sign held by suffragists over 100 years ago in front of the White House. The words are from a speech I gave on that day.
Again, I will say that I really hope that I am wrong about all of this, and if I am, that someone will tell me. In the meantime, I will just reiterate: “Mr. President, how long must women wait for liberty?”
Still waiting.
*Image credit to Charlie Rae.