Explainer: The Biden administration backs down from transgender mandate
By / Jun 26

On June 21, the Biden administration passed on its final opportunity to appeal the Eighth Circuit Court of Appeal’s ruling that struck down the “transgender mandate” in Sisters of Mercy v. Becerra. Counsel in the case, Luke Goodrich, said, “after multiple defeats in court, the federal government has thrown in the towel on its controversial, medically unsupported transgender mandate.”

The case was brought by the Sisters of Mercy, the University of Mary, and the SMP Health System in 2016 challenging the mandate that would require them to provide gender transition care against their religious convictions and medical expertise. The court struck down the mandate in December.

A similar case named Franciscan Alliance v. Becerra also succeeded in challenging the transgender mandate in August after the Fifth Circuit Court of Appeals ruled that it violated religious freedom. The group represented an association of over 19,000 healthcare professionals, eight states, and two religious hospitals. The Biden administration declined to appeal this decision, as well. 

In response to the decision, ERLC President Brent Leatherwood said,

The Biden administration’s decision to back down from the transgender mandate marks a significant victory in safeguarding the rights of medical professionals to operate in a manner consistent with their deepest held beliefs. This is an important development we should take note of because it not only represents a win for conscience rights but also furthers efforts to shield vulnerable individuals who should never become pawns in the sexual revolution.

What is the transgender mandate?

In 2016, as a part of the implementation of Section 1557 of the Patient Protection and Affordable Care Act (ACA), the Obama Administration’s Department of Health & Human Services (HHS) promulgated a rule requiring medical providers to perform and insure abortions and gender-transition procedures or face penalties. Section 1557 of the ACA is the nondiscrimination provision of the ACA, and the scope was broadened by redefining “sex” to include sexual orientation and gender identity.

The regulations came to be called the transgender mandate because they would require physicians to provide gender reassignment surgeries and administer hormones to facilitate gender reassignment, including to children, even if the doctor believed the procedure would be harmful.

In 2021, upon taking office, Biden reversed the Trump administration’s conscience protections by continuing to amend the language in the ACA to force doctors to perform gender-transition surgeries. The litigation was still in the courts pending a final decision, both of which came in 2022. The expiration of the appeal deadline terminates the Biden administration’s attempts to force the transgender mandate through the ACA. 

How has the ERLC been involved?

From the beginning, the ERLC has been an outspoken opponent of the transgender mandate because of its harmful implications for those undergoing these procedures as well as its flagrant violations of religious liberty and conscience protections for healthcare professionals.

Opposing the transgender mandate has been a top public policy priority for the ERLC, and in 2022, the ERLC filed public comments opposing the Department of Health and Human Services’ (HHS) most recent attempt to steamroll the consciences of these medical professionals. Today’s failure to appeal is a final victory after many years of dedicated advocacy from the ERLC and religious liberty allies.

Why does this matter to Southern Baptists?

As Southern Baptists, we believe that God, in his good design, has created us to be male and female to promote our flourishing. Despite how culture’s views of sexuality and gender may change over time, our commitment to this truth remains steadfast. 

Similarly, religious liberty and the protection of conscience is a bedrock principle for Baptists. As the Baptist Faith and Message describes, “God alone is Lord of the conscience.” Mandates from the government that force individuals to choose between their deeply held beliefs and their duties in the workplace must be opposed. The ERLC will always work to promote the dignity of all people and protect the religious liberty of all people of faith.

Following the decision, ERLC President Brent Leatherwood said, “Whether it is championing the preservation of individual consciences rooted in faith or defending the well-being of all image-bearers, the ERLC stands resolute, advocating tirelessly on behalf of our SBC churches. In doing so, we will not yield in our mission to protect and defend those who need it most.”

ERLC joins in supporting parental rights and opposing radical gender ideology in schools
By / Jun 2

Who should decide whether a child should be allowed to identify as transgender? 

In numerous locations across the country, school administrators are saying that they should be the ones to decide—and that they can keep such information from parents. That’s why over the past year, the ERLC has signed onto three different amicus briefs relating to issues of parental rights, transgenderism, and radical gender ideology in schools. 

Two of the cases are currently in federal appeals courts while one is being heard by the Wisconsin Supreme Court. In all three cases—

—the school districts violated parental rights by allowing students to use names and pronouns at school different from those they were assigned at birth, without providing parental notification absent a student’s consent.

Amicus briefs

The ERLC is joining with other groups in contending that such policies violate the rights of parents in two principal ways.

  1. First, their fundamental right to direct the care and education of their children includes the right to decide where the child will attend school, but the school policy improperly denied them critical information to inform that decision.  
  2. Second, by withholding such sensitive information when school officials, in their judgment, suspect parents might be insufficiently supportive, the school effectively labels those parents as abusive of their children, without affording them any due process protections as provided by both statutory and constitutional law.   

The amicus brief is a way to introduce concerns ensuring that the possibly broad legal effects of a court decision will not depend solely on the parties directly involved in the case. An amicus brief is a learned treatise submitted by an amicus curiae (Latin for “friend of the court”), that is, someone who is not a party to a case who offers information that bears on the case but that has not been solicited by any of the parties to assist a court. 

While it’s impossible to know how any particular amicus brief influences a justice or their decisions, such briefs are frequently cited in court rulings, showing that they can have an effect on legal outcomes. 

Joining with state conventions

In two of the cases, the ERLC is joining the amicus with, among other groups, the Minnesota-Wisconsin Baptist Convention.

In the third case, we are joining with the Baptist Convention of Iowa.

When appropriate, the ERLC wants to come alongside our state conventions and bolster their work promoting sound public policy and pushing back on policies that are harmful to our communities. What happens in these three cases can have national implications, so we want to advocate on an issue—transgenderism—where the SBC has clearly spoken.

How the SBC has spoken

In 2014, messengers of the SBC passed a resolution on transgenderism. That resolution

  • noted that “Some public schools are encouraging parents and teachers to affirm the feelings of children whose self-perception of their own gender is at variance with their biological sex”;
  • expressed the SBC’s opposition to efforts to alter one’s bodily identity (e.g., cross-sex hormone therapy, gender reassignment surgery) to refashion it to conform with one’s perceived gender identity;
  • and stated the SBC’s opposition to “all efforts by any governing official or body to validate transgender identity as morally praiseworthy (Isaiah 5:20).” 

The position was taken out of love of neighbor and a concern for human dignity. As the resolution states, “we love our transgender neighbors, seek their good always, welcome them to our churches and, as they repent and believe in Christ, receive them into church membership (2 Corinthians 5:18-20; Galatians 5:14)” and “we regard our transgender neighbors as image-bearers of Almighty God and therefore condemn acts of abuse or bullying committed against them.”

While all children, including those struggling with gender dysmorphia, should be treated compassionately, parents should be providing that counsel and care—not school administrators. Unfortunately, radical gender ideology is often being furthered in schools without the consent or in conflict with the wishes of parents. We believe that parents should have the right to know what is being taught to their children and any decisions that their child is making in regards to gender and sexuality.

Explainer: New Title IX rule expands transgender athlete participation in school sports
By / May 16

On April 6, the Department of Education (ED) released a proposed rule under Title IX anti-discrimination laws to “clarify” the participation of transgender students in school sports. This new rule establishes that federally-funded schools may violate Title IX if they categorically ban transgender students from participating on sports teams consistent with their claimed gender identity, but it also offers some vague and narrow circumstances where banning transgender athletes could be acceptable.

On April 15, the ERLC filed public comments in opposition to the change. ED is obligated to respond to each comment before finalizing the rule.

 What is Title IX?

Title IX of the Education Amendments of 1972 prohibits sex-based discrimination in education, stating: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 

Title IX law is intended to provide equal opportunities for both men and women seeking to participate in educational institutions and extracurricular activities that receive federal funding.

How would this proposed rule change Title IX policies?

The proposed changes from ED would bar schools from implementing categorical bans on the participation of transgender students in sports inconsistent with their biological sex. The rule would force schools to implement policies unfair to athletes competing on teams consistent with their biological sex, placing female athletes at high risk of losing their personal privacy, competitive balance, and scholarship and award opportunities.

The stated intention of this proposed rule is to provide “clarity” for federally-funded schools, coaches, and parents on the participation of transgender students in grade school and high school sports. Under the proposed reinterpretation of Title IX, 

  • “schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity.” 
  • Any scholastic efforts to restrict participation based on gender identity must establish criteria “substantially related to the achievement of an important educational objective.” 
  • The criteria must also “minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.” 

Little attention is given to any harms that could be placed onto biological female athletes through less fair and safe competition.

Contrary to ED’s statement, this rule fails to provide clarity on this issue and punishes schools who disapprove of Title IX’s ever-expanding definition of gender identity. To satisfy the department’s new criteria, local school districts may need to disregard policies that require disclosure of gender identity, as well as policies that require transgender students to participate on a sex-specific team matched with their biological sex. 

Why is this problematic?

ED’s proposed change would have sweeping effects that would significantly undermine the original intent and purpose of Title IX. By refusing to account for biological, sex-dependent differences, this regulation would legally enshrine inequality in sports, undermining the very law meant to secure gender equality in the first place.

Not only would this regulation work directly against decades of successful efforts to ensure equal athletic opportunity for men and women, but it would also completely blur the distinctions between men and women and their corresponding team sports. It is clearly unfair and demeaning to female athletes for our nation’s policies to proceed as if biological males are the standard by which they must evaluate their athletic performance.

Additionally, the proposed regulation constructs arbitrary criteria that only considers potential harms to transgender students, wrongly excluding deserving female athletes from the equation. The doctrine of the image of God must compel our leaders to protect dignity, rights, and opportunities for all people, including female athletes. This is not an either-or situation: schools can secure privacy and athletic opportunity for female athletes while still seeking to serve and love transgender students. Sadly, this proposed regulation fails to empower schools to achieve fully inclusive solutions that are right for their local community. 

The new interpretation of rules relevant to transgender athletic participation would penalize academic institutions that choose to protect female athletes. Schools under the jurisdiction of Title IX would no longer be able to define sex as a person’s biological sex from birth, but instead would be forced to adopt gender identity as the student’s sex for purposes of Title IX and its implementing regulations. Though the rule does provide some exceptions and circumstances where it could be deemed acceptable to ban transgender athletes, the exceptions are too vague and subjective to provide real guidance and protections to schools and administrators.

As we argued in our comments:

The exceptions articulated by the Department are as vague as they are hollow. The three factors enumerated are broad and highly subjective, open to vast interpretations from school to school. Yet, the Department’s subsequent commentary about the use of these factors renders the exception virtually useless. Any school or institution seeking to ensure that girls are physically protected as well as have equal access to fair athletic competition enshrined in Title IX, will undoubtedly face criticism and massive litigation costs for any exception they employ. It will be untenable for most schools to protect girls. Additionally, students themselves will be bounced around from team to team as school administrators, forced to comply with these untenable regulations and contend with impending lawsuits, do their best to navigate the subjective murkiness of this guidance.

How has the ERLC responded?

The ERLC has submitted public comments expressing these concerns about the proposed rule and urging ED to retract its policy. The ERLC will continue to monitor these changes and advocate for the recognition of God’s good design for biological sex and the flourishing of all our neighbors.

The ERLC upholds God’s design for sexuality in the public square
By / Dec 22

Marriage and the family unit were established by God at the very beginning of creation as the first institutions. Genesis 1 and 2 shows us how God fashioned man and woman in his image, brought them together as one flesh, and gave them the charge to be fruitful and multiply, or bear children. God works in many ways, but it’s through marriage and family that some of his greatest blessings abound to the world and bring about flourishing.

Because of the importance of these God-ordained institutions in preserving and prospering our society, the ERLC will continue to advocate for policies that maintain and protect these essential aspects of life together. God’s ways are for our good, whether or not our culture recognizes this to be true. While marriage and family will not be perfect in the midst of a fallen world, it’s our responsibility as Christians to continue to champion God’s design and see it upheld for the good of our neighbor. 

Sexual Ethics event

One of the ways the ERLC carried out this aspect of our mission this year was by devoting significant attention to sexual ethics. Specifically, we addressed this topic in the month of June because of its unavoidable cultural designation as “Pride Month.” 

Jason Thacker hosted an online event called, Discipling Your Church For a World in Sexual Crisis, which featured Andrew T. Walker, Dean Inserra, and Katie McCoy, and sought to equip churches and individuals to understand this current cultural moment and engage in these important discussions. In addition to this event, we featured much-needed resources on the topic of sexual ethics including:

House Passage of the Adoptee Citizenship Act

Another way we sought to promote the health of families was through legislation. Prior to the Child Citizenship Act of 2000, the administrative steps required of families adopting internationally were unnecessarily burdensome. The process included applying for and moving through a lengthy naturalization process for their children, in addition to the lengthy and costly adoption process. The Child Citizenship Act of 2000 granted automatic citizenship to all foreign-born children brought to the United States who had at least one parent who was a U.S. citizen. Unfortunately, that act only applied to adoptees under the age of 18 when the bill was enacted, leaving an entire population of adopted children without full U.S. citizenship. The Adoptee Citizenship Act closes the loophole to provide immediate citizenship to these children already adopted by U.S. citizens yet left out of the previous bill.

The ERLC has supported the Adoptee Citizenship Act for years. We have been engaged with a broad coalition invested in child welfare to urge members of Congress to swiftly pass this bill and secure permanent citizenship for the thousands of impacted adoptees. In March of 2021, the ERLC wrote a coalition letter to the House of Representatives urging them to swiftly pass this vital piece of legislation. 

In February of 2022, the House of Representatives passed H.R. 1953, the Adoptee Citizenship Act of 2021. An amended version of the bill passed the Senate, but the House disagreed with the Senate’s amendments and left the bill in limbo. The House’s bipartisan action on this bill is a promising first step, but we urge members of both houses of Congress to agree on legislative language and pass this crucial bill.

The Equality Act

One of the greatest legislative challenges the ERLC has engaged with is The Equality Act. In February 2021, the House passed The Equality Act (H.R. 5.)—a bill that would amend the 1964 Civil Rights Act to add sexual orientation and gender identity as protected classes under federal civil rights law. The bill would curtail religious freedom protections, hinder the work of healthcare professionals and faith-based hospitals, undermine civil rights protections for women and girls, and ultimately steamroll the consciences of millions of Americans.

The Equality Act would also gut the 1993 Religious Freedom Restoration Act (RFRA). The removal of this act would force faith-based child welfare organizations to abandon their deeply held religious beliefs or be shut down by the state. The Equality Act would also force healthcare workers and pro-life healthcare providers to participate in and provide abortions. 

The ERLC has worked tirelessly to defeat this bill. We have partnered with a broad coalition of more than 85 faith-based nonprofits, religious entities, and institutions of higher education to highlight the dangers of H.R. 5. We have raised these concerns with members of Congress and the administration through coalition letters and countless meetings with members, administration officials, and their staff. We have also engaged in public advocacy against the bill by producing a suite of resources available on our website to inform Christians and the broader public about the pernicious threat of H.R. 5. 

We will continue to lead efforts to oppose the Equality Act and any similar legislation introduced this Congress. As we do so, we will advocate for a public square solution that protects and upholds the dignity of all people and their rights, while ensuring that religiously motivated individuals and institutions are free to live and act according to their deeply held convictions.

Advocacy against SOGI provisions

The ERLC has also spoken out against the Department of Education’s proposed changes to Title IX, which would expand the definition of “sex” to include “sexual orientation” and “gender identity” (SOGI). These dangerous federal guidances would allow biological men to participate in collegiate women’s sports and would penalize institutions that fail to expand the definition of sex to include SOGI. The ERLC submitted public comments urging the department to alter this proposed rule. 

In addition, the ERLC has also spoken out against the Department of Health and Human Services’ addition of sexual orientation and gender identity language to multiple nondiscrimination provisions of the Affordable Care Act. This rule would mandate gender-affirming care and would impede the work of healthcare professionals and faith-based hospitals. The ERLC submitted public comments to the HHS urging them to alter this proposed rule. 

In all of these challenges, the ERLC will continue to advocate for the recognition of God’s good design for biological sex and for the protection of religious liberty.

Combatting confusion in society’s language about gender and sexuality
By / Oct 12

Although terms like “transgender” and “gender identity” are increasingly used in the public square, many Christians are still unaware of what they mean or how broad the scope is in which they are being used. To help provide some clarification and context, I’ve provided definitions for 31 terms commonly used by the gender identity movement. This glossary is designed to help you better understand the radical and ever-expanding language used to describe elements of the sexual (and gender) revolution. In order to effectively minister to those in our communities, it is helpful to grasp the terms used by the wider culture. Our goal is to understand so that we might proclaim God’s good design reflected in the biblical sexual ethic that brings flourishing and the gospel that brings hope and reconciliation.

This is not an exhaustive list by any means — Facebook alone allows you to choose from more than 70 gender options. Even though many in the LGBTQ+ community are united around certain terms and language, it is important to note that this is an incredibly diverse community that is not always in agreement with one another and their lifestyle choices.

Ally — A term for a person who supports members of the LGBTQ+ community and who advocates for them to others. 

Androphilia — A term used to refer to sexual attraction to men or masculinity that can be used as an alternative to a gender binary heterosexual or homosexual orientation. (See also: gynephilia.)

Bigender — A person who has two gender identities or expressions, either at the same time, at different times, or in different social situations. (See also: genderfluid.)

Bisexual — A person who is attracted to two sexes or two genders, but not necessarily simultaneously or equally. Although the term used to be defined as a person who is attracted to both genders or both sexes, that has been replaced by the number two (2) since the LGBT community believes there are not only two sexes or two genders but multiple gender identities. Within the LGBTQ+ community, a person who is sexually attracted to more than two biological sexes or gender identities is often referred to as pansexual or omnisexual.

Butch — A term used by the LGBTQ+ community to refer to masculine gender expression or gender identity. A nonbinary butch is a person who holds a nonbinary gender identity and a butch gender expression, or claiming butch as an identity outside of the gender binary. (See also: femme.)

Cisgender — A term used by many in the LGBTQ+ community and their allies to refer to people who have a match between the gender they were assigned at birth, their bodies, and their personal identity. Cisgender is often used within the LGBTQ+ community to refer to people who are not transgender. (In general, Christians should avoid using this term since it implies that cisgender and transgender are equally normative, i.e., the opposite of “heteronormative.”)

Femme — A term used by the LGBTQ+ community to refer to feminine gender expression or gender identity. A nonbinary femme is a person who holds a nonbinary gender identity and a femme gender expression, or claiming femme as an identity outside of the gender binary. (See also: butch.)

Gay — Until the mid-20th century, the term gay was originally used to refer to feelings of being “carefree,” “happy,” or “bright and showy,” though it also added, in the late 17th century, the meaning “addicted to pleasures and dissipations” implying a that a person was uninhibited by moral constraints. In the 1960s, the term began to be used in reference to people attracted to members of the same sex who often found the term “homosexual” to be too clinical or critical. Currently, the term “gay” is used to refer to men attracted to people who identify as men, though it is also used colloquially as an umbrella term to include all LGBTQ+ people. (The Gay & Lesbian Alliance Against Defamation considers the term “homosexual” to be offensive and recommends that journalists use the term “gay.”)

Gender dysphoria — A term that refers to the psychological condition of experiencing discomfort between one’s gender identity and biological sex. 

Gender expression — A term for the manner in which one chooses to express or show their gender identity. This can be through clothing choices, appearance, or mannerisms. The term assumes a spectrum of expression between more or less masculine/feminine activities and actions.

Gender identity — A term used to refer to an individual’s personal sense of identity as masculine or feminine, or some combination of each. The LGBTQ+ community and their allies (e.g., the Biden administration) consider gender to be a trait that exists along a continuum and is not inherently rooted in biology or physical expressions.

Genderfluid — A term used for people who prefer to be flexible about their gender identity. They may fluctuate between genders (a man one minute, a woman the next, a third sex later in the day) or express multiple gender identities at the same time.

Genderqueer — An umbrella term for gender identities that are not exclusively masculine or feminine‍. Sometimes referred to as non-binary, gender-expansive, pangender, polygender. (See also: Bigender, Trigender.)

Gynephilia — A term used to refer to sexual attraction to women or femininity that can be used as an alternative to a gender binary homosexual or heterosexual orientation.

Heteronormative — Popularized in the early 1990s in Queer Theory, the term refers to lifestyle norms that hold that people fall into distinct and complementary genders (man and woman) based on biology with natural roles in life that may or may not be socially constructed. Heternomativity presumes that heterosexual behavior is the norm for sexual practices and that sexual and marital relations are only fitting between a man and a woman. (The Christian worldview is “heteronormative.” The Bible clearly presents gender and heterosexual sex within the bounds of marriage as part of the goodness of God’s created order.)

Homophobia — A term to describe a range of negative actions (ranging from fear or discomfort to violence) toward LGBTQ individuals. There are similar terms for other groups within the LGBTQ community (i.e. biphobia and transphobia). The “phobia” language is key to the Sexual Revolution as it aids the psychological understanding of the self over that of biological realities since it attached moral stigma to those who do ascend to the tenets of expressive individualism.

Intergender — A term for people who have a gender identity in the middle between the binary genders of female and male, and may be a mix of both.

Intersectionality — A term from the work of Kimberle WIlliams Crenshaw which argues that various social identities (race, class, sexuality, gender, disability, etc.) overlap to create new intersecting identities of discrimination and disadvantage based largely on power dynamics (i.e. An African American woman is disadvantaged because she is a woman and because she is African American).

Intersex — Intersex is a general term for a variety of physical conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male. The variations in sex characteristics may include chromosomes, gonads, or genitals that do not allow an individual to be distinctly identified as male or female. Intersex is a rare physical condition while transgender is a psychological condition. The vast majority of people with intersex conditions identify as male or female rather than transgender or transsexual. (The term “hermaphrodite” is now considered outdated, inaccurate, and offensive as a reference to people who are intersex.)

Lesbian – The term most widely used in the English language to describe sexual and romantic attraction between people who identify as females. The word is derived from the name of the Greek island of Lesbos, home to Sappho (6th-century BC), a female poet that proclaimed her love for girls. The term “gay and lesbian” became more popular in 1970s as a way of acknowledging the two broad sexual-political communities that were part of the gay liberation movement.

LGBTQ+ — An initialism that collectively refers to the lesbian, gay, bisexual, transgender, and Queer communities (the “+” refers to all the other categories included below which may be added to the initialism and represent non-heterosexual behavior or identity). In use since the 1990s, the term is an adaptation of the initialism LGB, which itself started replacing the phrase gay community beginning in the mid-to-late 1980s. The initialism has become mainstream as a self-designation and has been adopted by the majority of sexuality and gender identity-based community centers and media in the United States. Along with LGBTQ, other letters are sometimes added. Other variants include: An extra Q for “questioning”; “U” for “unsure”; “C” for  “curious”; an “I” for “intersex” another  “T” for  “transsexual” or  “transvestite”; another  “T”, “TS”, or “2” for “Two‐Spirit” persons; an “A” or “SA” for “straight allies”; or an “A” for “asexual”; “P” for “pansexual” or “polyamorous”; “H” for “HIV-affected”; and “O” for “other.”

Man/Woman — In LGBTQ+ parlance, terms that refer to a person’s chosen gender identity, regardless of biological characteristics.

Non-binary — See “genderqueer.”

Polyamory — A term which describes the act of existing in multiple consenting relationships at one time. This may include relationships such as a “throuple” in which three individuals are in a relationship together, or “open relationships” in which individuals have ongoing relationships apart from their primary partner.

Preferred Pronouns — A term for the pronouns that someone desires others to use when interacting with them. These may not coincide with their biological sex, and may be more expansive than just one set (i.e. A person may prefer to use “she/her pronouns” as well as “they/them”). Preferred pronouns can also shift over time and depending on circumstances.

Queer — An umbrella term for sexual and gender minorities that are not heterosexual, heteronormative, or gender-binary. The term is still controversial, even within the LGBTQ community, because it was once used as a homosexual slur until it was re-appropriated in the 1990s. The range of what “queer” includes varies, though in addition to referring to LGBT-identifying people, it can also encompass: pansexual, pomosexual, intersexual, genderqueer, asexual, and autosexual people, and even gender normative heterosexuals whose sexual orientations or activities place them outside the heterosexual-defined mainstream, e.g., BDSM practitioners, or polyamorous persons. (In academia, the term “queer” and its verbal use, “queering,” indicate the study of literature, academic fields, and other social and cultural areas from a non-heteronormative perspective.)

Sex — The term refers to the biological characteristics and realties of an individual as revealed in chromosomes and physical traits such as reproductive/sexual anatomy (e.g., male or female).  (See also: Intersex). 

Sexual Orientation — A term for the emotional, romantic, or sexual feelings one has to another person, often defined by the gender of the person attracted and the gender of the person to whom they are attracted. Though gender plays a part in sexual orientation, it is not the same as gender identity. 

SOGI — An initialism that refers to “Sexual Orientation and Gender Identity.” It is commonly used to refer to laws which would protect those identities from certain forms of discrimination under the law. 

Third gender — A concept in which individuals are categorized, either by themselves or by society, as neither man nor woman (though not necessarily intersex). Sometimes also called “third sex” or othergender. (See also: Queer.)

Transition — A term for the process a transgender individual goes through to fully identify with their gender identity. There are various levels which can include social practices such as changing clothes or choosing new names/pronouns, hormonal therapies to prevent puberty or using hormone replacement therapy to replicate puberty of the opposite gender (i.e. a biological female who takes testosterone and sees a change in physical characteristics such as facial hair or a deepening of the voice). It may also include radical surgeries to change reproductive organs to align with gender identity (i.e. removal of breasts for trans men). 

Transgenderism — An umbrella term for the state or condition of identifying or expressing a gender identity that does not match a person’s physical/genetic sex. Transgender is independent of sexual orientation, and those who self-identify as transgender may consider themselves to be heterosexual, homosexual, bisexual, pansexual, polysexual, or asexual. Approximately 700,000 individuals in the United States identify as transgender.

Trans man — A transgender person who was born a female but claims the gender identity of a man (i.e., a biological female who identifies as a man).

Transsexual — A narrower (and outdated) term used to refer to individuals who have undergone some form of medical intervention to transition to another gender, whether that is through hormonal therapies or sex reassignment surgery. 

Trans woman — A transgender person who was born a male but who claims the gender identity of a woman (i.e., a biological male who identifies as a woman).

Transvestite — A person who cross-dresses, or dresses in clothes of the opposite sex, though they may not identify with or want to be the opposite gender. (All transexuals are transgender, but transvestites do not necessarily fall into either of the other categories.)

Trigender — A term for a non-binary (i.e., genderqueer) gender identity in which one shifts between or among the behaviors of three genders. These genders may include male, female, and third gender (e.g., genderless, non-gender, polygender, etc.).

Two-spirit – A term used by some Native American LGBT activists for people who possess qualities of both binary genders.

Ze – A gender-neutral pronoun used to replace he/she. (Sometimes spelled as Xe.)

A version of this article was originally published at The Gospel Coalition and has been updated to reflect current terminology used in the LGBTQ+ movement and wider culture.

Explainer: HHS reinterprets healthcare discrimination law to include sexual orientation and gender identity
By / Oct 5

On Aug. 4, the Department of Health and Human Services (HHS) issued a proposed rule that would significantly reinterpret the Affordable Care Act’s Section 1557 nondiscrimination provision by expanding the definition of “sex” to include sexual orientation, gender identity, and pregnancy-related conditions. Section 1557 of the Patient Protection and Affordable Care Act (ACA) is a nondiscrimination provision that prohibits discrimination on the basis of race, color, national origin, sex, age, or disability under any federally funded health program or activity, executive agency, or entity under Title I of the ACA.

Following the announcement, HHS allowed 60 days for organizations and individuals to comment with concerns. The ERLC submitted comments raising our concerns with the proposed rule. As that comment period closed Monday, HHS is obligated to respond to each of these comments before putting forward a finalized rule.

How has Section 1557 been interpreted historically?

During the Obama administration, new regulations expanded the scope of section 1557’s nondiscrimination policies by redefining “sex” to include sexual orientation, gender identity, and termination of pregnancy. The regulations raised a number of significant issues regarding religious liberty and freedom of conscience. For instance, physicians would be required to provide gender reassignment surgeries and administer hormones to facilitate gender reassignment, including to children. The regulations even required medical professionals to perform abortions in violation of their deeply held convictions.

In response to these new regulations, five states and three private healthcare providers filed suit to challenge the final rules. In Franciscan Alliance v. Burwell (2016), a federal district court held that HHS erroneously interpreted “sex” under Title IX and that the final rule was arbitrary and capricious, while Title IX “unambiguously refers to the biological and anatomical differences between male and female students as determined at their birth.” The court further ruled that the final rule’s failure to include religious exemptions likely violated the Religious Freedom and Restoration Act (RFRA) and the Administrative Procedure Act (APA).

In 2020, the Trump administration finalized a rule reversing the Obama administration’s regulations on Section 1557 and narrowing the definition of “sex.” Days after the final rule was issued, the Supreme Court handed down a 6-3 ruling in Bostock v. Clayton County that expanded the definition of “sex” to include “sexual orientation” and “gender identity” for the purposes of employment discrimination under Title VII of the Civil Rights Act of 1964. This year, the Biden administration reversed the 2020 rule, then reinstated and expanded the Obama administration’s 2016 rule using the Bostock decision as a justification for its redefinition of “sex.”

Why is this change problematic?

While HHS allegedly plans to comply with the Religious Freedom Restoration Act and all applicable court orders involving section 1557 regulations, it is unclear what this proposed rule means for religious healthcare professionals and insurance providers. Medical professionals and providers could be forced to administer or cover gender reassignment treatments if they provide the same underlying treatments for other conditions, regardless of their objections to the treatment for religious or moral reasons. That is, if a physician performs hysterectomies for cancer patients or hormone therapy for patients with hormone imbalances, HHS may force that doctor to administer those same treatments for patients seeking gender reassignments.

This rule also expands the legal definition of “sex” to include “pregnancy-related conditions”—a term that prohibits discrimination on the basis of “pregnancy, childbirth, termination of pregnancy, or lactation.” While the exact implications of this expansive terminology are still unclear, advocates are concerned that the administration could again weaponize the “termination of pregnancy” language to mandate healthcare providers and other organizations to include abortions and abortifacents in their plans. The government should never fund abortions nor force healthcare professionals to violate their dearly held pro-life convictions. Pro-life appropriations riders such as the Hyde, Weldon, and Church amendments should always be included in the annual budgetary process and strictly followed by executive agencies like HHS.

How has the ERLC responded?

The ERLC has submitted public comments laying out our concerns with the proposed rule and urging them to reconsider making these changes. This proposed rule would have deeply concerning ramifications for life, religious liberty, and the good of our neighbors if enacted. As ERLC’s Jason Thacker said when the proposed rule was introduced, “No matter how quickly our society shifts on the fundamental issues of life and human sexuality, people of faith should not be forced to participate in or promote the myth that we can create our own realities outside of God’s good design for human sexuality and flourishing,” The ERLC will continue to monitor these changes and look for additional opportunities to raise our concerns and advocate for the recognition of God’s good design for biological sex and for the protection of religious liberty.

Explainer: Title IX expanded to include sexual orientation and gender identity
By / Sep 19

On July 12, the Department of Education (DOE) issued a proposed rule under Title IX discrimination laws that would expand the definition of “sex” to include sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Following the announcement, the DOE allowed 60 days for organizations and individuals to comment with concerns. As that comment period closed Monday, the DOE is obligated to respond to each of these comments before putting forward a finalized rule.

What is Title IX?

Title IX of the Education Amendments of 1972 prohibits sex-based discrimination in education, stating: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX law is intended to provide equal opportunities for both men and women seeking to participate in educational institutions and extracurricular activities that receive federal funding.

How would this proposed rule change Title IX laws? 

This proposed rule would reinterpret Title IX’s prohibition against sex-based discrimination to include sexual orientation, gender identity, and pregnancy. Section 106.10 of Title IX will “articulate the Department’s understanding that sex discrimination includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” Under this new rule, preventing individuals from participating in school programs consistent with their self-identified “gender identity” would constitute discrimination. In order to receive federal funding, religious schools and organizations may be compelled to allow transgender students to live in opposite sex dorms, use restrooms reserved for the opposite sex, or participate on sports teams with their chosen gender identity. 

This proposed rule is another attempt by the executive branch to extend the bureaucratic application of the Supreme Court’s ruling in Bostock v. Clayton County (2020). In Bostock, the court held that Title VII of the Civil Rights Act of 1964 protects gay and transgender employees against unlawful discriminiation — logic that various executive agencies including the Equal Employment Opportunity Commission, the Department of Agriculture, and now the DOE have applied to Title IX.

 The DOE’s proposed rule explicitly relies on Bostock’s reasoning because of similarities in the text of Title VII and Title IX and other comparable applications by federal courts. But a federal judge temporarily blocked similar guidance previously issued by the DOE, aiming his sights at the “improper expansion” of Bostock‘s reasoning to Title IX. This new rule, then, is likely vulnerable to similar litigation that could severely limit its applicability and effectiveness.

Why is the rule problematic?

The DOE’s proposed change would have sweeping effects that would significantly undermine the original intent and purpose of Title IX. The new language that expands the definition of “sex” to include “sexual orientation” and “gender identity” (SOGI) would penalize institutions that did not expand the definition of sex to include SOGI. Organizations and schools under the jurisdiction of Title IX would no longer be able to define sex as a person’s biological sex from birth, but instead would be forced to adopt gender identity as the student’s sex for purposes of Title IX and its implementing regulations.

In athletics, a refusal to account for biological, sex-dependent differences will legally enshrine inequality in sports by changing the very law that sought to achieve the equality in the first place. In addition to being unfair, it is insulting and demeaning to females for our nation’s policies to proceed as if biological males are the standard by which they ought to evaluate themselves. If the proposed change is accepted, the law created to protect them from discrimination and provide them equality would discriminate against them and make them more unequal than ever before. Not only would this proposal completely blur the distinctions between men and women and the corresponding team sports they participate in and facilities they utilize, it will have the effect of rolling back all the good that has been done to ensure men and women have the same opportunity to participate in educational institutions and activities.

Additionally, though Title IX has a robust religious exemption, it does not include protections for people of faith at nonreligious institutions, and the DOE has indicated that they may take further action limiting the religious exemption in the future.

How has the ERLC responded? 

The ERLC has submitted public comments laying out our concerns with the proposed rule and urging them to reconsider making these changes. Title IX directly affects a host of other regulations across agencies making the effects of this change sweeping. The ERLC will continue to monitor these changes and look for additional opportunities to raise our concerns and advocate for the recognition of God’s good design for biological sex and for the protection of religious liberty.

Explainer: USDA allows religious schools to receive lunch funding without violating their beliefs
By / Aug 18

On May 5, the United States Department of Agriculture (USDA)’s Food and Nutrition Service (FNS) issued new guidance involving sexual orientation and gender identity language requirements. It stated that “it will interpret the prohibition on discrimination based on sex found in Title IX of the Education Amendments of 1972, and in the Food and Nutrition Act of 2008, as amended, Supplemental Nutrition Assistance Program (SNAP), formerly the Food Stamp Program (7 USC § 2011 et seq.), to include discrimination based on sexual orientation and gender identity.” FNS is responsible for administering the USDA food assistance programs, including those related to schools, such as the School Breakfast Program and the National School Lunch Program (NSLP). 

This interpretation comes as a result of President Biden’s Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation and is believed by FNS to be an outworking of the Supreme Court’s 2020 Bostock decision that found the prohibition of “sex” in Title VII of the Civil Rights Act to include sexual orientation and gender identity. Though the Bostock case dealt with Title VII, which involves employment discrimination, FNS believes that this same interpretation of “sex” also applies to Title IX, which deals with educational activities.

This means that these FNS school meal programs, which are subject to Title IX civil rights law preventing discrimination on the basis of sex, now also ban discrimination on the basis of sexual orientation and gender identity. In order to receive funding for meal programs operated by USDA’s FNS, state and local agencies, schools, lunch program operators, and sponsors now must update their non-discrimination policies and signage to explicitly prohibit discrimination based on sexual orientation and gender identity.

Why is this problematic?

While it is troubling to see continued efforts to push gender ideology in ways that contradict a biblical view of human sexuality, this new guidance was particularly problematic in that it did not provide a robust exemption for religious schools or other faith-based programs that participate in FNS-funded meal programs. Title IX’s religious exemption is automatically granted to religious schools without any type of action required from either the school or government. Recently, this interpretation of the exemption was affirmed in a case involving Fuller Theological Seminary.

Despite Title IX’s strong protection for religious schools and faith based organizations, the USDA insisted that religious schools that object to this guidance must submit a written declaration to the secretary of agriculture identifying the provisions within the rule that conflict with a specific tenet of the religious organization. Additionally, it was unclear whether these schools would face penalties if they did not comply while their exemption letter was being considered. 

In 2019, the NSLP provided free or reduced price lunches to 29.6 million children every day. A significant number of those children attend religious schools that maintain deeply-held religious beliefs in contradiction to this understanding of sex and gender. Many of these schools were beginning their academic years with great uncertainty as they faced difficult decisions: will they violate their deeply-held religious beliefs or risk the loss of funding for some of the most vulnerable children enrolled in their schools. Already, one religious school, represented by our partners at Alliance Defending Freedom, was forced to sue in order to be granted their exemption.

Additionally, more than 20 state attorneys general have filed a lawsuit against USDA, contending that the department’s interpretation of Title IX would cause the plaintiff states to lose federal funding for the National School Lunch Program and the Supplemental Nutrition Assistance Program (SNAP). The lawsuit accuses Biden of asking federal agencies to rewrite federal law, and the attorneys general allege that the USDA ignored procedural requirements and misconstrued federal code in issuing its directives.

What changed?

On Friday, Aug. 12, the USDA issued a clarification stating that it would reinstate the broad Title IX religious exemption that automatically applies to religious schools and faith-based institutions without the step of a written request. This clarification comes after months of work from religious liberty advocates and is a substantial victory for religious institutions and people of faith who do not want to compromise their most fundamental beliefs as they work to serve their neighbors in the public square.

Religious schools are on the front lines of caring for some of the most vulnerable children across the country, and the ERLC will continue to advocate for their ability to faithfully fulfill their mission without risking the welfare of the most vulnerable children enrolled in their schools or sacrificing their deeply-held beliefs on issues of gender and sexuality. 

Discipling Your Church for a World in Sexual Crisis
By / Jun 29

Every day, we’re faced with new challenges as our society bombards us with content, entertainment, and messages that challenge a faithful understanding of the biblical sexual ethic. It’s easy to feel overwhelmed as we walk through what seems like uncharted territory.

But no matter what we face in our ever-shifting culture, God’s design for human sexuality has never changed. Through it all, the redemptive message of the Gospel still calls us to a more beautiful picture of sexuality than the world could ever imagine, one rooted in how God made us uniquely as men and women in his very image. How do we communicate the biblical sexual ethic in our highly secularized context — an ethic rooted in the unchanging truth of God’s word and the unwavering grace which none of us deserve?

This recording of an ERLC event on June 7, 2022 will equip you to disciple your church for a world in sexual crisis.

The 50th anniversary of Title IX and the future of women’s sports
By / Jun 23

Fifty years ago, President Nixon signed into law Title IX Education Amendments of 1972, a landmark policy for women and girls. Title IX states that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

This important policy was intended to provide equal opportunities for men and women seeking to participate in activities and educational institutions receiving funding from the U.S. government. One of the most notable ways Title IX has benefited thousands of women is their ability to equally participate in sports. Catherine Parks writes, “many young girls now have the hope of competing at a collegiate level with all the benefits Title IX provides. The ability to earn a scholarship and compete at this level can be life changing. Women are more likely to attend college and graduate when offered an athletic scholarship.”

Women’s sports and the transgender movement

The 50th anniversary of Title IX is worth celebrating for all that it has meant for women and girls and their ability to fully and fairly participate in sports. However, in recent years, equal athletic opportunities for biological females have been repeatedly compromised by the participation of transgender athletes in women’s sports.

In 2020, three star female track athletes lodged a high-profile lawsuit targeting their Connecticut conference’s policy allowing transgender athletes to compete in women’s sports. The defendants alleged that two biological males won 15 state high school championships over three years, stripping biological women of crucial advancement and scholarship opportunities. In 2021, a federal judge dismissed the lawsuit, but the athletes are appealing the ruling to the U.S. Court of Appeals for the 2nd Circuit. 

Transgender atheletes are also challenging the integrity of women’s sports on the collegiate level. In March 2022, University of Pennsylvania swimmer Lia Thomas won the NCAA 500-meter freestyle championship. Thomas, a biological male, competed on the men’s swimming team for two years before joining the women’s team after undergoing a year of hormonal therapies. Thomas struggled to break out while swimming against men, but the swimmer quickly dominated national competition after switching to compete against biological women. Controversy swirled around Thomas’ status on the women’s team, as multiple female swimmers protested and team parents raised concerns over lost opportunities and championships for their children.  FINA, the international swimming governing body, responded by banning male-to-female transgender swimmers from competition unless the transition occurred before the onset of puberty.

At least 13 states have banned biological males who identify as women from competing in women’s sports. States are beginning to recognize the irony of forcing female athletes to compete against biological males: these policies are explicit reversals of the very Title IX antidiscrimination measures meant to secure equal opportunities for women. Biological males enjoy a natural advantage when competing against women, and proposed redefinitions of Title IX protections discriminate against young women by expecting them to overcome those disadvantages.

Department of Education’s proposed changes

Today, the U.S. Department of Education announced proposed changes to Title IX regulations that would have sweeping effects on the original intent and purpose of Title IX. The department stated that it intends to prohibit discrimination “based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” In short, the department wants to expand the definition of “sex” to include “sexual orientation” and “gender identity” (SOGI). This is significant because it would allow for biological men to participate in women’s sports, particularly at a collegiate level, and would penalize institutions that did not expand the definition of sex to include SOGI.

The department’s proposed Title IX regulations will be open for public comment for 60 days from the date of publication in the Federal Register. The ERLC will submit public comments on this proposed rule.

Why does this matter to Christians

It is becoming increasingly clear that issues of gender identity and sexual orientation will continue to be debated in our culture. Given that, Christians are, and will continue to be, confronted with difficult situations in their schools and universities that revolve around transgender athletes. As these challenges arise, Christians need to know how to respond. We uphold the design of our Creator, who chose to endow men and women with equal value, yet distinct physical attributes. In this context, our intentional physical make-up as men and women, boys and girls has implications for the way we perform in athletic competition, and those differences should be acknowledged and valued.

The important protections that Title IX offers girls and women are in jeopardy if additional steps are taken to allow biological men to compete in female athletics. The blurred line in the definition of sex is going to lead to the deterioration of women’s sports all together. Christians need to be firmly grounded in what the Bible  teaches about biological sex and be ready to give an answer to the neighbors, family members, and larger culture around us. As we watch our daughters and sons train and compete, we should rejoice at the beauty of God’s design for creation and seek to teach our children and those that God has put in our path to disciple that every one of us is loved and purposely created to point to the One in whose image we were made. 

How the ERLC is involved

The ERLC is supports the Protection of Women and Girls in Sports Act. This act would clarify that it is a Title IX violation for schools that receive federal education funds to permit biological males to participate in female sports. We call on Congress to protect women and girls by ensuring they are given a fair opportunity to compete in athletics. 

The ERLC is also strongly opposed to the Equality Act. In addition to being detrimental to the issue of women’s sports participation, “the bill would curtail religious freedom protections, hinder the work of healthcare professionals and faith-based hospitals, undermine civil rights protections for women and girls, and ultimately steamroll the consciences of millions of Americans.”

We will always affirm the biological differences between male and female reflected in God’s creation and uphold the Southern Baptist Convention’s position on gender identity stated in its summary of faith, the Baptist Faith and Message, which says, “Man is the special creation of God, made in His own image. He created them male and female as the crowning work of His creation. The gift of gender is thus part of the goodness of God’s creation.”

ERLC Interns Daniel Hostetter and Cooper Shull contributed to this article.