The clash of definitions: how the binary institutional concept of sex obstructs equitable transgender healthcare

“ Ensuring that all women have equitable access to health care before, during, and after pregnancy is essential. The Biden-Harris Administration is committed to addressing these unacceptable disparities, and to building a health care system that delivers equity and dignity to Black, Indigenous, and other women and girls of color.
Health care is a right, not a privilege, and our country needs a health care system that works for all of us. ”

“ Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation. ”

“ Very few communities that have always faced health disparities — Black, Brown, and Asian, Native American communities — have borne the brunt of the COVID crisis.
And we’re also making it easy to — easier to sign up for Obamacare. We’ve opened Healthcare.gov for special enrollment on February the 15th. In the first two weeks alone, more than 200,000 Americans gained coverage. ”

“ When we invest in the economic development of countries, we create new markets for our products and reduce the likelihood of instability, violence, and mass migrations. When we strengthen health systems around the world, we reduce the risk of future pandemics that can threaten our people and our economy. When we defend equal rights of all people – of women and girls, LGBTQI individuals, indigenous communities, people with disabilities, and people of every ethnic background and religion — we help ensure that those rights are protected for our own children here in America. ”

“ The majority frames the issue incorrectly in at least two ways.
For one thing, the majority follows Adams in using the word “sex” as a synonym for “gender identity.” E.g., id. at 6 (“Mr. Adams amended his legal documents to reflect his male sex.”) . As Adams put it, “ [t] ransgender persons are people whose gender identity diverges from the sex they were assigned at birth,” and a “transgender boy’s sex is male (even though he was assigned the sex of female at birth) .” But the schools use “sex” in its ordinary, traditional sense, and they use “biological sex” as a synonym. ”

“ Before the medical profession gained its current understanding of gender identity, some practices involved attempts to force transgender people to live in accordance with the sex assigned to them at birth, but those attempts failed and caused significant harm. ”

“ Adams’s course of treatment—gender transition—also reflects the “accepted standard of care for transgender persons suffering from gender dysphoria.” Modern medical consensus establishes that “forc [ing] transgender people to live in accordance with the sex assigned to them at birth” is ineffective and “cause [s] significant harm.” In particular, the Pediatric Endocrine Society maintains that “not allowing [transgender] students to use the restroom matching their gender identity promotes further discrimination and segregation of a group that already faces discrimination and safety concerns.” ”

“ Their trailblazing work has given countless transgender individuals the bravery to live openly and authentically. This hard-fought progress is also shaping an increasingly accepting world in which peers at school, teammates and coaches on the playing field, colleagues at work, and allies in every corner of society are standing in support and solidarity with the transgender community.
In spite of our progress in advancing civil rights for LGBTQ+ Americans, too many transgender people—adults and youth alike—still face systemic barriers to freedom and equality. ”

“ Transgender Americans of all ages face high rates of violence, harassment, and discrimination. Nearly one in three transgender Americans have experienced homelessness at some point in life. Transgender Americans continue to face discrimination in employment, housing, health care, and public accommodations. The crisis of violence against transgender women, especially transgender women of color, is a stain on our Nation’s conscience. ”

“ Science has been advancing without interruption during the last three or four hundred years; every new discovery has led to new problems and new methods of solution, and opened up new fields for exploration. Hitherto men of science have not been compelled to halt, they have always found means to advance further. But what assurance have we that they will not one day come up against impassable barriers? ”

“ The Endocrine Society Clinical Practice Guideline considers the standard of care for some adults and adolescents with gender dysphoria or who seek gender affirmance to include hormone treatment which, for a transgender male, will alter the appearance of the genitals, suppress menstruation, and produce secondary sex characteristics such as increased muscle mass, increased body hair on the face, chest, and abdomen, and a deepening of the voice. ”

“ Body and soul constitute one inseparable entity." So they do, replies Ulrichs; but the way in which these factors of the person are combined in human beings differs extremely, as I can prove by indisputable facts. The body of a male is visible to the eyes, is mensurable and ponderable, is clearly marked in its specific organs. But what we call his soul—his passions, inclinations, sensibilities, emotional characteristics, sexual desires—eludes the observation of the senses. ”

“ Can the reader conjure up any worse fate for a girl than to be doomed to pass through life incarnated in a male body? How grief -provoking for a mademoiselle to be cursed with a slight growth of hair on lip or cheeks! Only a trifling male stigma! How much more heart-rending for a mademoiselle to possess the male physique to such an extent that even all physicians (except a handful of sexologists) with their present lack of knowledge—or rather their closing their eyes to all evidence—would declare her a male, and prescribe that she should in life fill the latter role. ”

“ Intermediate scrutiny is satisfied when a policy directly achieves the objective itself. See id.
This conclusion would stand even if the district court were correct that gender identity, not biology, determines a person’s sex—that is, if the school policy should have assigned the school district’s 16 transgender students to the bathroom that aligned with their gender identity. The policy would still assign the rest of the district’s 40,000 students to the right bathrooms, so it would still be 99.96 percent accurate in separating bathrooms by sex. ”

“ Moreover, the retired Director of Student Services acknowledged that for a transgender student who has made the social transition and whose appearance is consistent with his or her gender identity (for example, a transgender girl whose hair is long, whose breasts are enhanced, who is wearing lipstick) , there may be safety, security, and privacy concerns if that student used the restroom that is consistent with the sex the student was assigned at birth; thus, she thought it would be preferable if such a student used a gender-neutral single-stall bathroom. ”

“ The retired Director of Student Services also expressed concern for the safety of transgender students, worrying that they might be bullied or assaulted or ridiculed by other students if they are in the bathroom that matches their gender identity. ”

“ According to Glenn, “ [a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. The very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” 663 F.3d at 1316 (quotation and citations omitted) . Thus, “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.” ”

“ Our research agencies are working to reduce barriers in access to early diagnoses, interventions, and services for people with autism—including those from diverse racial, ethnic, and cultural backgrounds and rural communities—and to incorporate the perspectives of individuals with autism in scientific research. For too long, disparities in access to health care, education, and services have placed an undue burden on individuals with disabilities and their loved ones, particularly those from underserved communities. ”

“ Even more women have reduced their hours. Many others have managed precarious job conditions and additional caregiving responsibilities, threatening economic security for them and their families and unmasking the fragility of our caregiving infrastructure. Our economic recovery depends on addressing longstanding discrimination and barriers that have hampered women—particularly women of color—from fully participating in the labor force. ”

“ Caregivers – who are disproportionally women of color – have been underpaid and undervalued for far too long. President Biden’s plan ensures domestic workers – who are disproportionately women of color – receive the benefits and protections they deserve and tackles pay inequities based on gender. Address racial disparities in access to home- and community-based care. Native Americans and Black adults are overrepresented in the population of people with disabilities and older adults for whom home and community-based care is needed. ”

“ Accessibility includes the provision of accommodations and modifications to ensure equal access to employment and participation in activities for people with disabilities, the reduction or elimination of physical and attitudinal barriers to equitable opportunities, a commitment to ensuring that people with disabilities can independently access every outward-facing and internal activity or electronic space, and the pursuit of best practices such as universal design. ”

“ Because of the Affordable Care Act, over 100 million people no longer have to worry that an insurance company will deny coverage or charge higher premiums just because they have a pre-existing condition. ”