Spotify Wrapped, book lists, and resolutions — the new year marks a time to reflect on the past year and an opportunity to anticipate the upcoming one. One such reflection should be on the Biden administration’s agency actions in 2023 and preparation for what such moves will mean in 2024.
In 2023, the Biden administration doubled down on its commitment to radical gender ideology. Federal agencies proposed a slew of regulations pushing the Biden administration’s extreme pro-LGBT agenda in education, employment, and health care at the expense of children’s interests and women’s rights. If you can’t even define what a woman is, how can you protect women’s rights?
Below are the top — or should I say bottom? — five agency proposals (listed chronologically).
1. Ed Department’s Title IX Rule Would Decimate Women’s Sports
The Department of Education proposed a new Title IX rule in July 2022 that would radically expand the ban on sex discrimination in educational programs and activities to include discrimination based on sexual orientation and so-called gender identity. To supplement this proposal, the department issued a proposed rule on athletics in April 2023 to require most school sports teams to allow participation based on self-proclaimed identity, not biology. This rule would — surprise, surprise — functionally decimate girls and women’s sports, which is ironically the very thing Title IX is lauded for championing.
Good news, though. The Education Department received so many written public comments opposing its radical proposals that the Title IX rules’ anticipated finalization was pushed from May 2023 to October 2023 to March 2024. As a result, these harmful rules successfully did not go into effect for the 2023-2024 school year. And when the department does eventually finalize the rules, teams of litigators are waiting on the sidelines.
2. EEOC’s Pregnant Workers Fairness Act Regulations Erased Women
It’s hard to see how, other than a blind commitment to radical gender ideology, the Democrat-controlled Equal Employment Opportunity Commission could make regulations implementing the Pregnant Workers Fairness Act so anti-woman. Yet that is just what the commission did in its August 2023 proposal.
Setting aside the host of other issues with the proposed regulations, the EEOC went out of its way to avoid using the term “woman” when discussing workplace accommodation protections for “pregnancy, childbirth, or related medical conditions.” In its place, the EEOC used nonspecific terms such as “worker” or “employee,” and even went so far as to use the plural pronouns “they” and “their” multiple times to refer to a singular employee who was pregnant, had a cesarean section, or experienced childbirth.
It’s almost as if the EEOC believes the anti-scientific position espoused by radical Democrats that people other than women can get pregnant and give birth.
3. HHS Rule Would Unlawfully Prohibit Discrimination Based on Gender Dysphoria
In September 2023, the Department of Health and Human Services proposed a rule on discrimination against individuals with disabilities under Section 504 of the Rehabilitation Act and, by extension, the Americans with Disabilities Act. While much of the proposal was actually good policy, one aspect raised red flags.
Under Section 504, “gender identity disorders not resulting from physical impairments” are excluded from the definition of a qualifying disability. Yet, according to HHS, Section 504 prohibits discrimination based on gender dysphoria — which is a gender-identity disorder. (The 2013 Diagnostic and Statistical Manual of Mental Disorders swapped out the term “gender identity disorder” for the new term “gender dysphoria” to help remove the purported stigma of the term “disorder.”) According to HHS, however, gender dysphoria is not a gender-identity disorder. Make it make sense!
The goal is to impose incorrect pronouns, bathroom access, and so-called “gender transitions” via disability discrimination law. Section 504 applies to employers and organizations that receive federal dollars or are run by a government agency. As such, HHS’s proposed application to gender dysphoria discrimination would not be limited to the health care context.
4. HHS Rule Called ‘Non-Affirming’ Foster Parents Abusive
At the end of September, HHS’s Administration for Children and Families issued a proposed rule establishing what it considers as “safe and appropriate” foster care placements for children who identify as “LGBTQI+.” Such a placement must be free of mistreatment, hostility, and abuse, which I’m sure we can all agree with. But by “abuse,” ACF means not affirming a child’s sexual orientation or so-called gender identity or expression, including by using the child’s preferred name and pronouns and allowing the child to dress in a way that reflects his or her self-proclaimed identity.
Alarmingly, underlying the department’s proposal are two dangerous premises: (1) Not “affirming” a child’s self-proclaimed LGBT identity is unsafe and abusive, and (2) people who hold traditional beliefs (religious or otherwise) about marriage, sexuality, and the sexes are unable to provide safe and loving homes for LGBT-identifying children. If legally established, these premises could have massive ramifications not only for foster care, but also for adoption, custody disputes, and child care and education.
5. EEOC’s Harassment Guidance Would Impose Workplace Pronoun and Bathroom Mandates
The EEOC proposed updated harassment guidance in October 2023 that stated, “[S]ex-based harassment includes harassment on the basis of sexual orientation and gender identity, including how that identity is expressed.” Examples of harassment included “misgendering” and denying access to a bathroom or other sex-specific facility consistent with the individual’s so-called gender identity. These examples go far beyond the Supreme Court’s 2020 Bostock decision, but who could have seen that coming?
While technically not legally binding, the guidance will be highly persuasive and is meant to provide clarity and serve as a resource for EEOC staff, employees, employers, litigators, and courts. Other federal agencies, such as HHS and the State Department, have preemptively imposed similar pronoun and bathroom policies — your taxpayer dollars at work.
The slew of regulations proposed in 2023 are on track to be finalized in 2024, cementing Democrats’ radical LGBT agenda — absent, of course, any intervening litigation and a new administration not hell-bent on imposing these harmful ideologies via administrative fiat.
Rachel N. Morrison is a fellow at the Ethics and Public Policy Center, where she directs EPPC’s HHS Accountability Project. She is a former attorney adviser at the Equal Employment Opportunity Commission.
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