The Biden administration has been known to stretch the law beyond a plain reading to support a desired policy outcome.
Take the longstanding federal law that criminalizes the shipment of abortion drugs, for example. The Justice Department argues that the law doesn’t mean what it says. Wrong.
Or how about Title IX of the Education Amendments of 1972—crafted to guarantee sex equality in education—which the Department of Education argues permits biological boys to compete on female athletic teams? Wrong again.
Now, the Department of Health and Human Services is arguing that gender dysphoria is a disability under federal law. And that disability, HHS argues, requires accommodation.
How does HHS reach that conclusion? By relying on one decision from the U.S. Court of Appeals for the 4th Circuit, a decision not followed by any other federal appellate court. It’s also a decision about which certain justices of the U.S. Supreme Court expressed significant concern.
On Sept. 14, the Department of Health and Human Services published a proposed rule to amend section 504 of the Rehabilitation Act, which is the federal law that prohibits disability discrimination in any program conducted by federal agencies or receiving federal funding.
There is much good in the proposed rule to be sure, including updates on obligations concerning web and mobile accessibility, service animals, facilities, and medical care. But the proposed rule also adopts the rationale of the 4th Circuit in Williams v. Kincaid to justify extending the definition of disability to include gender dysphoria.
In its proposed rule, HHS notes:
The Department agrees that 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.
There’s just one problem: Section 504 of the Rehabilitation Act excludes the exact disorder HHS is trying to shoehorn into its interpretation. That law reads:
For the purposes of sections 791, 793, and 794 of this title, the term ‘individual with a disability’ does not include an individual on the basis of—(i) transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.
Happily for the Biden administration, the appeals court in Williams held (inexplicably) that “gender dysphoria” and “gender identity disorder” were two different things.
In the case, inmate Kesha Williams, who was born a male but “identifies” as a transgender woman, sued Sheriff Stacey Kincaid of Fairfax County, Virginia, based on alleged mistreatment at the county jail.
Williams sued under both the Rehabilitation Act and the Americans With Disabilities Act (or ADA), a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, education, transportation, and places open to the general public.
The Rehabilitation Act and the Americans With Disabilities Act contain identical, exclusionary language on “gender identity disorders.” The two laws often appear together when a claimant alleges discrimination based on disability.
Williams’ contention was that as Fairfax County sheriff, Kincaid violated both laws by refusing to accommodate Williams’ “gender dysphoria.” Williams argued that the sheriff did so by assigning the inmate to men’s housing, failing to offer hormone therapy, and permitting “persistent and intentional misgendering and harassment.”
Because the ADA clearly doesn’t provide disability protections for “gender identity disorder,” Judge Diana Gribbon Motz, writing for the 2-1 majority, engaged in a contorted legal analysis before concluding that gender dysphoria wasn’t actually a gender identity disorder.
To reach that conclusion, Motz didn’t look to the statute’s plain language at the time of its enactment. Instead, she focused on a much more recent change by the American Psychiatric Association on gender-related psychiatric diagnoses—one not envisioned, anticipated, or incorporated by the original drafters of the Americans With Disabilities Act in 1990.
This change first appeared in 2013 in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). This manual is the standard classification of mental disorders used by mental health professionals in the United States.
At that time, the American Psychiatric Association replaced the term “gender identity disorder” with “gender dysphoria.” The change focused the diagnosis on the distress that some people who consider themselves transgender experience (and for which they may seek psychiatric, medical, and surgical treatments) instead of on an individual’s desire to be a gender other than the one he or she was born as. Motz determined that this change was good enough to stretch the Americans With Disabilities Act well beyond the limits of what Congress determined the law ought to bear originally.
Motz wrote:
In sum, the APA’s removal of the ‘gender identity disorder’ diagnosis and the addition of the ‘gender dysphoria’ diagnosis to the DSM-5 reflected a significant shift in medical understanding. The obsolete diagnosis focused solely on cross-gender identification; the modern one on clinically significant distress … Put simply, while the older DSM pathologized the very existence of transgender people, the recent DSM-5’s diagnosis of gender dysphoria takes as a given that being transgender is not a disability and affirms that a transgender person’s medical needs are just as deserving of treatment and protection as anyone else’s.
Motz and the other judge in the majority argued that the concept of “gender identity disorder” as used in the statute encompassed all “cross-gender identification,” but the current American Psychiatric Association-defined concept of “gender dysphoria” is defined by stress that goes beyond “being trans alone.”
So, Motz concluded in her opinion, “gender identity disorder” as a category “no longer exists,” thereby rendering the statutory exclusion without any effect.
In his dissent, Judge Marvin Quattlebaum argued that the majority’s focus on this linguistic change ignored the plain text of the Americans With Disabilities Act at the time of its enactment in 1990. And that plain text explicitly excluded “gender identity disorders.”
In Quattlebaum’s view, Motz was incorrect to focus on an apparent shift in medical understanding, something she argued had rendered the exclusion of “gender identity disorder” as obsolete.
The Supreme Court denied review in Williams on June 30, but Justice Samuel Alito was joined by Justice Clarence Thomas in strenuously dissenting from this denial.
Alito wrote that the case presented a question of “great national importance” that required prompt review. He added:
The Fourth Circuit’s decision makes an important provision of a federal law inoperative and, given the broad reach of the ADA and the Rehabilitation Act, will have far-reaching and important effects across much of civil society in that Circuit. Voters in the affected States and the legislators they elect will lose the authority to decide how best to address the needs of transgender persons in single-sex facilities, dormitory housing, college sports, and the like.
As seems typical for the Biden administration, the Department of Health and Human Services relied on a single, problematic ruling—one based on faulty reasoning and subject to withering criticism—for the purpose of advancing its preferred social policy interests. HHS intends that all entities covered by the Americans With Disabilities Act and the Rehabilitation Act now must make accommodations for any feelings of stress or discomfort that result from a person’s “assigned” (i.e., birth) sex.
If the proposed HHS rule is finalized, it would open the door for those who consider themselves transgender and feel clinically distressed to receive requested accommodations in bathrooms, locker rooms, sports, prisons, same-sex housing, preferred pronouns, and more.
The public comment period on the proposed HHS rule closed Nov. 13, and the Biden administration now must wade through over 5,200 comments received before drafting and issuing a final rule.
The administration shouldn’t rely on another faulty interpretation of federal law. Instead, it should rescind the proposed HHS rule immediately.
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