What you need to know about the forces reshaping our industry.


October 23, 2018

Trump reportedly seeks to redefine 'sex' as fixed at birth—but physicians are pushing back

Daily Briefing

    The Trump administration is considering a proposal that would narrow the federal government's definition of "sex," or gender, to mean a biological condition determined at birth—a move that scientists and medical experts say is at odds with science

    Access our health care cheat sheets on top-of-mind legal landmarks

    According to the New York Times, the move would reverse efforts by former President Barack Obama's administration to expand the definition of sex in federal programs to recognize one's gender as an individual's choice that is not determined by sex at birth.

    Trump admin could narrow how federal government defines gender

    The Times reports that it obtained and reviewed a Trump administration memo that was drafted and has been circulating since last spring that states HHS is leading an effort to establish a legal definition of sex under Title IX, which is the federal civil rights law that prohibits gender discrimination in education programs that receive funding from the federal government.

    According to the Times, HHS in the memo stated that government agencies should adopt a uniform definition of sex that is determined "on a biological basis that is clear, grounded in science, objective, and administrable." HHS proposed that "[s]ex means a person's status as male or female based on immutable biological traits identifiable by or before birth." It added, "The sex listed on a person's birth certificate, as originally issued, shall constitute definitive proof of a person's sex unless rebutted by reliable genetic evidence."

    HHS is expected to formally present the proposal to the Department of Justice (DOJ) before the end of this year, the Times reports. At that point, DOJ will determine whether the proposal is legal and can be used by federal agencies.

    DOJ declined to comment on the proposal, the Times reports. According to STAT News, a top HHS official called the Times' report "misleading," but declined to comment on the "alleged, leaked documents."

    When asked about the memo during a campaign stop on Monday, President Trump said, "I'm protecting everybody. I want to protect our country." He added, "We have a lot of different concepts right now. They have a lot of different things happening with respect to transgender right now."

    Potential implications

    If HHS' proposed definition is adopted across federal agencies, the federal government would no longer recognize the genders of the estimated 1.4 million U.S. residents who have opted to recognize themselves as a sex that conflicts with the one assigned to them at birth, the Times reports.

    According to the Times, changing the definition of sex could affect two proposed rules, which the Trump administration has not yet released, that deal with sex discrimination at schools, colleges, and health care programs that receive federal funding.

    Mara Keisling, executive director of the National Center for Transgender Equality, said, "This proposal is an attempt to put heartless restraints on the lives of two million people, effectively abandoning our right to equal access to health care, to housing, to education, or to fair treatment under the law."

    Scientists push back on defining gender at birth

    Following the Times' report, several medical experts and scientists who study sex and gender said the proposed definition is at odds with biology, STAT News reports.

    Jason Rafferty—a pediatrician and child psychiatrist at Hasbro Children's Hospital, who was lead author of the American Academy of Pediatrics' latest transgender policy—said a person's sex generally refers to anatomy, while "gender goes beyond biology."

    According to STAT News, every human embryo begins with a set of gonads that has the potential to develop into testes or ovaries. But Rachel Levin, a Pomona College neuroscientist who studies the development of sex, explained that there are several ways embryos can develop in utero that result in genetalia and bodies that would not fall into a strict male or female category at birth.

    Levin said the proposal is "highly inaccurate and just an insult to science. Basic science."

    The Union of Concerned Scientists—a nonprofit based in Cambridge, Massachusetts—said, "This proposed change pushes pseudoscience," adding, "It's baseless and wrong for HHS to distort science to try to rationalize this change. It's a charade, not a real argument."

    Sari Reisner, an epidemiologist and professor at Harvard Medical School and the Harvard T.H. Chan School of Public Health, said she is worried such a change could exacerbate health care disparities. "If you just go by sex, you're not going to accurately capture health disparities," he said, adding, "That has implications for interventions and for health care delivery" (Green et al., New York Times, 10/21; Rosenblatt, NBC News, 10/21; Armour/Hackman, Wall Street Journal, 10/21; Watkins, CNN, 10/22; AP/New York Times, 10/23; Borter/Goldberg, Reuters, 10/22; Thielking, STAT News, 10/22).

    Just updated: Your cheat sheets for understanding health care's legal landscape


    To help you keep up with the ever-changing regulatory environment, we recently updated our cheat sheets on some of the most important—and complicated—legal landmarks to include a brand new one-pager on the new tax law.

    Check out the cheat sheets now for everything you need to know about MACRA, the Affordable Care Act, antitrust laws, fraud and abuse prevention measures, HIPAA, and the two-midnight rule.

    Get the Cheat Sheets

    Have a Question?


    Ask our experts a question on any topic in health care by visiting our member portal, AskAdvisory.