A new (well, actually old but renewed) piece of legislation introduced by Congressman Pete Olson (R) of Texas this week seeks to reestablish the power of Congress, and in some cases the states, when it comes to deciding definitions of gender and sex for legal and policy purposes. The Civil Rights Uniformity Act of 2017 lists its raison d’etre as, “To repeal executive overreach, to clarify that the proper constitutional authority for social transformation belongs to the legislative branch.”
The phrase “social transformation” is a scary one to see showing up in any sort of legislation and the more libertarian among us are probably put off by it for good reason. But what other choice is there? The crux of the bill is to roll back executive mandates from the Obama era where the well understood and scientifically sound concept of “sex” was morphed into suddenly bowing to concepts of “gender identity” as put forward by transgender advocates in the social justice community. Normally, “social transformation” belongs in the public square, but when the government dips a toe in those waters it has real world impacts on the privacy rights of citizens.
Here’s a short statement from the bill’s author.
Rep. Pete Olson said, “The Obama Administration strongly overreached by unilaterally redefining the definition of “sex” with respect to the Civil Rights Act outside of the lawmaking process. We must reject the notion of false power stolen from Congress by a White House seeking to impose social policy on America. The Founding Fathers never intended unelected bureaucrats in federal agencies to make sweeping changes to the definition of gender. While we have a new president in office, we must restore the voice of the people given to them by our Constitution and put an end to this dangerous precedent of removing Congress’ power to make laws.”
This isn’t the first time Olson has attempted this. When President Obama first issued his directives on the subject in 2016 Olson rolled out a similar proposal but it obviously wasn’t going to make it into law with the old administration in charge. Now, however, conditions have changed. Who knows how the dice will roll this time?
Heritage Action not only endorsed the bill, but said that while President Trump had taken positive steps on this matter, he needs to do more.
The Obama administration’s unilateral decision to redefine federal law for political purposes imposed a one-size-fits-all policy on every school in the country. It blatantly undermined the rule of law, separation of powers, and federalism while threatening the safety and privacy of young women.
The Trump administration took positive steps forward in addressing the problem by rescinding the Obama guidance on February 22, 2017, but unfortunately this decision was limited to Title IX and the education community. The Trump administration should extend this decision to every area where federal agencies have imposed new “gender identity” rules under the Obama administration, including employment, housing and shelters, business regulation, and health care.
The need to pass this bill serves (or very likely will serve) two different purposes. Getting the law on the books would be a good start, but it could also just as easily be modified or repealed by a later Congress. What would be far more valuable would be to finally get an expansive decision from the Supreme Court on the question of gender and the government’s role in these definitions. If this bill passes it will, without any doubt whatsoever, be immediately challenged in court. If we could get such a challenge pushed all the way up to the Supreme Court we might finally get some guidance and clarity as to whether or not science actually matters in questions like this where the personal privacy of citizens intersects with it or if we’ve basically just thrown in the towel and will allow the Social Justice Warriors to make up whatever rules they feel like.
Expect the media and Hollywood to have a field day with this one. As far as I’m concerned… bring it on.