According to a memo obtained by The New York Times, the Department of Health and Human Services (HHS) is leading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans discrimination on the basis of sex.
Under it, a person's gender designation could not be changed once it was defined by the genitals a person is born with.
Under the Obama administration, the legal concept of gender was loosened through a series of decisions, recognizing gender as an individual choice and not one determined at birth.
The policy led to legal challenges concerning bathrooms, dormitories, single-sex programs and other areas where gender had previously been identified as either male or female.
The newspaper reported an HHS spokeswoman declined comment on what she called "allegedly leaked documents." But HHS officials said they were following a ruling by a Texas US district judge as a guide to transgender policy.
In 2016, Judge Reed O'Connor ruled on a challenge to a provision in the Affordable Care Act that forbade discrimination on the basis of race, color, sex, and other characteristics. He has written that "Congress did not understand 'sex' to include 'gender identity.'"
"The court order remains in full force and effect today and HHS is abiding by it as we continue to review the issue," Roger Severino, director of the HHS Office for Civil Rights, said in a statement.
But the paper points out that other court decisions have gone in favor of the Obama administration's position. That was one of the reasons for the move for a new, standard definition by HHS. The department's memo says the lack of a stand-alone definition allowed the Obama administration and courts to take "advantage of this circumstance to include gender identity and sexual orientation in a multitude of agencies, and under a multitude of laws," which in turn "led to confusion and negative policy consequences in health care, education and other federal contexts."
HHS also called on major federal agencies to adopt its definition of gender, so it will be the same in various government regulations, which would increase the likelihood that courts will accept it.
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