The recent announcement by HHS that it will roll back protections for transgender individuals under the Affordable Care Act illustrates the confusion regarding how sex discrimination overlaps with gender identity discrimination.
In concluding that sexual orientation discrimination and gender identity discrimination constitute sex discrimination, advocates have not argued that the term "sex" encompasses sexual orientation and gender identity. Instead, they have argued that when someone discriminates against an individual for being gay or transgender, he treats the individual differently based on the individual's biological sex. Thus, in his oral argument (around 29:10) in a recent Fifth Circuit case, Lambda Legal attorney Greg Nevins clarified, "We're not arguing for a broader definition of 'sex' than man or woman." Rather, just as discrimination based on interracial associations discriminates based on race -- by treating a white woman married to a black man differently from a black woman married to a black man -- discrimination based on sexual orientation discriminates based on sex -- by treating a man who has sex with men differently from a woman who has sex with men. Similarly, transgender discrimination is sex discrimination because it means treating a biological man who presents as female differently from a biological woman who presents as female. Although this line of reasoning has frequently been represented as defining "sex" to include "sexual orientation" and "gender identity," it merely applies the existing definition of sex to show that sexual orientation and gender identity discrimination result in discrimination against someone for being male or female.
This argument, however, only gets you so far. When sexual orientation discrimination or gender identity discrimination does not result in discrimination against someone for being male or female, then it is not sex discrimination. Significantly, it doesn't appear that the exclusion of medical services related to gender transition discriminates based on biological sex. If a transgender woman is denied access to emergency room services that are granted to a non-transgender woman, that is arguably sex discrimination because a biological male who identifies as female is being treated differently from a biological woman who identifies as female. By contrast, if no one gets benefits for gender transition, that may discriminate against an individual based on gender identity, but it does not discriminate against someone for being male or female. Absent an expanded definition of "sex," only so much can be considered gender identity (or sexual orientation) discrimination.
The decision by HHS to propose the rescission of regulations protecting transgender individuals may be criticized by many, but arguments for coverage have rested on faulty logic. If medical benefits related to gender transition are to be covered, it would require more than arguments about interracial marriage and gender stereotypes. It would require an actual expansion of the term "sex" or the addition of "gender identity" as a protected basis.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.