New 'Orwellian' HHS pronoun mandate forces employees to 'deny reality,' violate law: legal expert

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Mother sued and won against school district that refused to follow her request that they refer to her daughter by her given name and pronouns

Tammy Fournier said she and her husband did not go along with a school district’s 'affirmative care' model, so they removed their daughter from the district and she later desisted from her gender dysphoria.

The Department of Health and Human Services (HHS) has rolled out a new gender pronoun policy that one Heritage Foundation expert and former HHS official says violates employee rights and will result in firings for "misgendering."

"HHS and the federal government is requiring its employees to speak falsehoods," Roger Severino, the Heritage Foundation’s vice president for domestic policy and the former head of civil rights at HHS during the Trump administration, told Fox News Digital. 

Severino first broke the story on X, formerly Twitter, last week. He wrote that HHS "imposed a transgender pronoun mandate on its employees who will now be forced to deny biological realities with their own words or face firing" and he included a screenshot of an email sent to employees at the department. 

Severino told Fox News Digital that the First Amendment protects federal employees from being required to speak falsehoods, being compelled to adopt a state-approved ideology and requiring people to deny their own faith.

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Assistant HHS Secretary Rachel Levine. (HHS/Instagram)

"These policies would require all of those things," said Severino, a Harvard Law School graduate.

"All employees should be addressed [by] the names and pronouns they use to describe themselves," the email to HHS employees stated as part of its push for "Gender Identity and Non-Discrimination Guidance" that it says protects "employee rights and protections related to gender identity."

Severino says the push began with two White House executive orders, one in January 2021 and one in June 2022, that were framed as ways to combat "gender discrimination" on the basis of "gender identity."

"All applicants and employees should be addressed by the names and pronouns they use to describe themselves. Using correct names and pronouns helps foster workplaces free of discrimination and harassment," the U.S. Office of Personnel Management guidance states.

"This practice also creates an inclusive work environment where all applicants and employees are treated with dignity. The isolated and inadvertent use of an incorrect name or pronoun will generally not constitute unlawful harassment, but, as the Equal Employment Opportunity Commission (EEOC) has explained, continued intentional use of an incorrect name or pronoun (or both) could, in certain circumstances, contribute to an unlawful hostile work environment."

An unlisted YouTube video linked in the email to HHS employees last week which features Assistant HHS Secretary Rachel Levine, who identifies as transgender, says that "who you know yourself to be is valid."

Severino explained to Fox News Digital that the "Orwellian" policy means that "misgendering" someone would qualify as violating anti-discrimination law which "gets you fired." 

The video also states that employees "can wear clothing" and "use restrooms" based on what gender they identify as. 

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The U.S. Department of Health and Human Services building is pictured in Washington, D.C., on July 13, 2020. (Caroline Brehman/CQ-Roll Call, Inc via Getty Images)

"Men who identify as female have the right to get naked in front of female colleagues in the locker room," Severino said about how this rule relates to HHS locker rooms and bathrooms. 

"It used to be that if you allowed a man to get naked in front of a woman in the workplace that is instantly a violation of civil rights law," Severino said. "That's the quintessential hostile work environment, subjecting women to that. Now, the policy says to the women who may be uncomfortable with that situation, they're the ones who have to leave."

Severino, who said it was "breathtaking" the Biden administration would unveil this policy, said that there are "strong arguments" that employees have legal recourse against policies like this and can "exercise their rights."

"Governments cannot compel speech and certainly cannot compel false speech," Severino said, citing West Virginia vs. Barnette, in which even though children being told to say the pledge of allegiance during World War II was a good thing, the Supreme Court ruled that parents and students have a right to dissent from that view.

"We protect the right of political dissent and here it's a pledge of allegiance to the Rainbow flag that's been essentially required," Severino said.

Severino also said that employees have a "right to their faith" and "your boss cannot force you to deny your faith as a condition of working there."

He told Fox News Digital that policies that force employees to deny gender reality or go against their beliefs absolutely have a negative effect on morale and production and that current government employees have told him as much. 

"They are faced with a horrible dilemma," Severino said. "Do they hope that they can fly under the radar and try to avoid the issue and keep a low profile and perhaps hide their faith so they can keep their job, or do they stand up and say this policy is wrong and fight for their rights? And then see a gigantic target on their back after that."

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President Biden. (Kevin Dietsch/Getty Images)

Fox News Digital reached out to HHS and the White House for comment but did not receive a response.