In one of Robert F. Kennedy Jr.’s first moves as secretary of the US Department of Health and Human Services, the agency released guidance Wednesday for the US government, external partners and the public that offers a narrower definition of sex than the ones used by many scientists and that aligns with a January executive order signed by President Donald Trump.
The department also launched a website promoting these definitions and created a video defending a ban on transgender women participating in women’s sports.
HHS says the action was prompted by Trump’s January 20 executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which required the agency to provide “clear guidance expanding on the sex-based definitions set forth in the order” within 30 days.
Wednesday’s publication furthers the Trump administration’s efforts to deny the existence of people who identify as transgender, nonbinary or intersex, a sharp departure from the Biden administration’s attempts to create more inclusive health policy and research.
The executive order and the new HHS document provide similar narrow definitions of words like “sex,” “female,” “woman,” “girl,” male,” “man” and “boy.” HHS adds definitions like the term “father,” described as a male parent, and “mother,” a female parent.
There were slight variations in the definition of “male” and “female.” Trump’s executive order, for instance, said a male is a “person belonging, at conception, to the sex that produces the small reproductive cell.” HHS’s definition explains that a male “is a person of the sex characterized by a reproductive system with the biological function of producing sperm.”
The HHS news release defines sex using Trump’s language, saying it is “a person’s immutable biological classification as either male or female.” However, it skips a sentence in Trump’s executive order that read, “’Sex’ is not a synonym for and does not include the concept of ‘gender identity.’” Gender is not a focus of the HHS document.
Previously, the federal government has defined “sex” in much broader terms. The US Centers for Disease Control and Prevention, one of HHS’s agencies, defined it as “an individual’s biological status as male, female, or something else. Sex is assigned at birth and associated with physical attributes, such as anatomy and chromosomes.” Gender had been defined as something separate but inter-related to sex as “the cultural roles, behaviors, activities, and attributes expected of people based on their sex.”
Within days of his inauguration, the Trump administration removed the CDC website with the definitions along with hundreds of others that were more gender-inclusive. After organizations sued, a judge ordered the administration to restore them. The pages now carry a disclaimer that says “any information on this page promoting gender ideology is extremely inaccurate and disconnected from the immutable biological reality that there are two sexes, male and female.”
Kennedy said Wednesday that the narrower sex-based definitions restore “biological truth to the federal government.”
“The prior administration’s policy of trying to engineer gender ideology into every aspect of public life is over,” he said in a news release.
Some legal experts were sharply critical of the new definitions.
Michele Bratcher Goodwin, a health law professor at Georgetown and the co-faculty director of the O’Neill Institute for National and Global Health Law, said that the definitions ignore science and that the executive order that demanded them was deeply problematic.
“What we’ve seen coming from the Trump administration is to proffer matters that are unconstitutional, that are blatantly illegal, that have been shut down by an array of federal judges,” Bratcher Goodwin said.
The new definitions aren’t just rhetoric, she said; they will have real consequences for health and science, and for how doctors treat patients. Narrow definitions can limit research, for example, such as surveys that once captured information about children who identify as transgender.
HHS would typically rely on peer-reviewed science to offer such guidance, but Wednesday’s publication “completely ignores the complexity of human experience,” said health law expert Omar Gonzalez with Lambda Legal, an LGBTQ+ civil rights organization.
“This is just showmanship,” Gonzalez said. “It’s pure smoke and mirrors. It’s a website that links to the very executive orders that we’ve already challenged and even gotten some of them enjoined in court.”
On February 4, a judge granted a temporary restraining order related to the executive order as it pertained to where transgender prisoners should be housed.
Bratcher Goodwin points out that the new definitions fail to account for people such as those who identify as intersex.
People who are intersex, who are not acknowledged in either document, have sexual or reproductive anatomy that doesn’t fit the male/female binary. By some estimates, up to 2% of the US population is born intersex.
Intersex people “have been documented for millennia. It’s nothing new. It’s not as if the president could say, ‘oh, this is some new trend, some fad,’ “ Bratcher Goodwin said. “What the president’s executive order and also this guidance suggests is that they’re invisible. That these individuals don’t exist. It’s sophistry.”
Cait Smith, director of LGBTQI+ policy at the Center for American Progress, a public policy research and advocacy organization, called the new definitions “mean-spirited” and “unscientific.”
Smith said the language is “copy-paste” from anti-transgender bills that Smith’s organization has fought in state legislatures for years.
“The law today is no different than the law was yesterday. The law still protects trans folks from discrimination, so that is the reason that we’re seeing a lot of these PR stunts like this announcement,” Smith said. “I think it’s still unclear if they can do more than this at this point without courts intervening like they are.”
Smith and members of other civil rights organizations said they are working to help schools and medical groups interpret such announcements while suing to stop policies they consider discriminatory.
“Unfortunately, this will probably be a problem for a while,” Smith said. “Attempting to sow confusion, that’s easier than actually passing policy.”
