Gregg Bloche

Should psychiatrists have the power to rewrite civil rights law by revising their diagnostic categories? By basing its push for transgender rights on a change in clinical taxonomy, the Obama Administration is giving them this authority.

From 1980 until 2013, American psychiatrists applied the term “gender identity disorder” to people whose sexual anatomy did not match their sexual identity. This diagnosis mobilised medical technology — and health insurance — to fulfil transgender people’s desire to bring their anatomy into line with their sense of self.

Hormonal and surgical transformation, counselling and more were offered on the basis of this diagnosis. Yet, as transgender Americans struggled for acceptance, they came to see this clinical category as demeaning, since it characterised their sense of self as an illness.

Transgender-rights advocates mounted a campaign to eliminate “gender identity disorder”. In 2013, they succeeded. The fifth edition of the American Psychiatric Association’s diagnostic manual replaced this category with a new clinical construct: “gender dysphoria”.

Gone was the notion that mismatch between anatomy and gender identity is a disease. In its place was the premise that identity, not anatomy, defines gender. Anatomy was beside the point, unless one experiences distress — “dysphoria” — from the disconnect between the two. This dysphoria, not the disconnect, was now the illness.

“Persons experiencing gender dysphoria,” the APA explained in a fact sheet accompanying the change, “need a diagnostic term that protects their access to care and won’t be used against them in social, occupational, or legal areas.”

The APA’s move was deft. Identity now trumped anatomy as the determinant of gender. Mismatch between the two was no longer an illness, yet distress arising from this mismatch merited treatment, the group said.

With one stroke, psychiatry thereby normalised transgender identity while preserving health insurance coverage for gender-reassignment treatment as therapy for “dysphoria”. The APA, moreover, expanded the scope of treatment to include “social and legal transition to the desired gender”.

For the Obama Administration, this offered an opening: a chance to expand civil rights protection for transgender Americans without seeming to change the law. In a 2015 case, G.G. v. Gloucester County School Board, the Justice Department intervened as an amicus, backing a transgender student’s claim that Title IX of the Education Amendments of 1972, which bars discrimination “on the basis of sex”, compelled the board to let him use the boys’ bathroom.

The department cited the APA’s gender dysphoria fact sheet as proof that “gender transition” is necessary “to alleviate ... psychological stress” and that “real-life experience”, including use of restrooms that fit one’s gender identity, is “critical” to this transition. Sex, the department said, is a matter of identity, not anatomy; thus, barring a transgender male from male restrooms constitutes sex discrimination under Title IX.

A United States district court judge rejected the boy’s claim, but the US Court of Appeals for the 4th Circuit reversed the decision, ruling in April that the Obama Administration’s interpretation was “reasonable” and should be deferred to. The psychiatric community’s revisions to its diagnostic manual thereby became civil rights law.

Building on this success, the Justice Department asked a judge last month to void North Carolina’s ban on transgender people’s access to bathrooms matching their gender identities. The department’s court filing restated the APA’s 2013 change in policy as a fact of nature: “For individuals who have aspects of their sex that are not in alignment, the person’s gender identity is the primary factor in terms of establishing that person’s sex.”

The administration took the same position four days later in its “guidance” letter to schools receiving federal funds, a letter now being challenged in federal court by 12 states. The letter claims disingenuously that it “does not add requirements to applicable law”. Credit the APA for being more candid: its 2013 “fact sheet” is open about the organisation’s intent to win greater social and legal acceptance for transgender people.

I celebrate such acceptance — count me among those who believe that all of us ought to be able to live our sexual identities without fear of discriminatory consequence. Our culture is moving in this direction. Gender flexibility has gone mainstream — from pop stars such as Prince to androgynous fashion to greater acceptance of transgender Americans among the young. Civil rights law should evolve in response. The administration has wide berth to bring this about, by issuing regulations reinterpreting Title IX to cover transgender people.

Federal law requires a “notice and comment” period before such regulations are finalised; this offers Americans a chance to air the values at stake. Had the administration gone this route, it could have openly made the case for transgender equality. And it almost surely would have prevailed, since courts give the executive branch broad deference to interpret federal statutes. Protection for transgender people should not be smuggled in quietly in medical disguise. Doing so isn’t just dishonest, it invites backlash — against transgendered Americans, against psychiatry and against public officials who refuse to own up to their pursuit of legal change.

Whether “sex” is a matter of anatomy or identity is a cultural and moral question, not a matter of medical fact. And whether Title IX should apply to the transgendered is a question of politics and law, not clinical diagnosis. By hiding a bitterly controversial expansion of sex-discrimination law behind psychiatrists’ change in their clinical language, the Obama Administration grossly overreached.

•Gregg Bloche is professor of law at Georgetown University and author of The Hippocratic Myth