Privacy Officer's Roundtable

Gender Identity

  • 1.  Gender Identity

    Posted 08-06-2020 02:09 PM

    On June 15, 2020, the United States Supreme Court ruled that workplace discrimination on the basis of sexual orientation and gender identity is prohibited by Title VII of the Civil Rights Act of 1964 ("Title VII").  Does the Trump Rule contradict that? Do I take "gender identity" out of our non-discrimination policy or not?  What are your thoughts?


    Trump Finalizes Rule Defining Gender as a Person's Biological Sex

    August 6, 2020/by Washington Times

    The Trump administration on Friday finalized a regulation that defines gender as a person's biological sex, reversing an Obama-era rule aimed at protecting transgender people against sex discrimination in health care.

    The Health and Human Services Department regulation says essentially that "gender identity" is not protected under federal law prohibiting sex discrimination in health care.

    The policy shift was long sought by religious and social conservatives. The Obama administration's regulation defined gender as a person's internal sense of being male, female, neither or a combination.

    Dr. Grazie Pozo Christie, policy adviser for The Catholic Association, praised the move. She said preventing "discrimination on the basis of sex" was intended "to ensure that women are treated on a par with men."

    "Changing the definition of sex to mean 'gender identity' and to include unfettered access to abortion would not have protected the vulnerable," she said. "Instead, it would have made it impossible for doctors to decline to perform ethically problematic procedures (like late-term abortion) and experimental and dangerous ones (like the removal of healthy organs from young patients with gender dysphoria.) Getting the government out of the business of social engineering, and out of the way of sound medical ethics and patient care is a step forward."

    Thanks in advance for your insight!

    Compliance/Ethics & Privacy Director
    SCCE Membership

  • 2.  RE: Gender Identity

    Posted 08-07-2020 04:46 PM
    Hi, Cinda,

    The Supreme Court's decision affected only Title VII cases, which means it applies only to employment discrimination. From the viewpoint of strict legalities, the Administration's policy remains in effect. That policy probably will be changed soon, if not by administrative action, by a court challenge.

    Remember that state laws may give broader protection in this area than the federal law does.

    Randall Holbrook
    Managing Director, Governance, Risk & Compliance and General Counsel - Legal Research Center, Inc.

    SCCE Membership