Civil Rights Uniformity Act of 2017

Over the past half century, Congress has passed numerous civil rights laws prohibiting discrimination on the basis of “sex”, a designation long understood to be grounded in objective biology up to the present day. There is no evidence that Congress or the American people ever understood the word sex or gender in civil rights laws to include subjective self-identification.

For years, advocates have pressed Congress to include a person’s subjective self-declared “gender identity” in Federal civil rights laws that prohibit sex discrimination. Congress has declined to do so except for the Shepard-Byrd Act of 2009 and the Violence Against Women Reauthorization Act of 2013 where gender identity is defined as “actual or perceived gender-related characteristics” with “gender”, there referring to characteristics associated with biological males and females.

This demonstrates that when Congress wants to protect sex, it does so explicitly; when it wants to also elevate gender identity it does so explicitly; and when it does not want to elevate gender identity, it can do so either explicitly or by simply not disturbing the status quo.

Despite the complete clarity of this point, President Barack Obama’s administration has attempted to effectively replace the word “sex” with the phrase “gender identity” for purposes of Federal antidiscrimination law and policy through a series of unilateral executive actions.

For example, on December 15, 2014, Attorney General Eric Holder announced that the Department of Justice would reinterpret the ban on “sex” discrimination under title VII of the Civil Rights Act of 1964 to encompass “gender identity”. This was followed on March 27, 2015, by an Equal Employment Opportunity Commission decision holding that declining to use a female pronoun to address a male who identifies as female constituted “sex” discrimination under title VII.

On May 9, 2016, the Obama administration sued the State of North Carolina and threatened it with fines and loss of Federal funding if it did not adopt the administration’s incorrect readings of title VII of the Civil Rights Act of 1964 and title IX of the Education Amendments of 1972.

On May 13, 2016, the Departments of Justice and Education issued a “significant guidance” letter stating that under title IX of the Education Amendments of 1972 “when a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.” The guidance further states that schools “must treat a student’s gender identity as the student’s sex” including in the context of “sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes.” In other words, the Departments consider it a title IX violation if a person of the male sex who self-identifies as a female is not granted unfettered access to women’s or girls’ dorms, showers, locker rooms, and bathrooms. This, despite assurance that such a thing would never happen from the likes of Ruth Bader Ginsburg who wrote in 1975 that “separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.” This position was codified in Federal regulations, 34 CFR 106.33, which state that recipients of Federal funds “may provide separate toilet, locker room, and shower facilities on the basis of sex,” with sex obviously referring to biology.

Also on May 13, 2016, the Department of Health and Human Services finalized regulations that redefined the Affordable Care Act’s prohibition on “sex” discrimination in federally funded health programs and activities to cover “gender identity”, thereby opening health care professionals and insurers to extensive liability if they decline to participate in or pay for “gender transition” treatments or “sex change” operations.

The Obama administration’s actions are an affront to the rule of law, the separation of powers, the will of the people, language, history, safety, privacy, and biological realities.

to prevent the executive branch from unilaterally rewriting Federal civil rights laws by enacting or implementing any policy or undertaking any enforcement action that is based on construing the term “sex” or “gender” to mean “gender identity”; and

to ensure that gender identity is not treated as a protected class in Federal law or policy without the affirmative approval of the people’s representatives in Congress.