Harvard University Medical School has postponed an online course on transgender health care after National Review contacted the university to inquire about the legality of offering course fee waivers to transgender-identifying doctors while charging other medical professionals $650 to attend.

The medical school's website previously advertised fee waivers to "transgender” and "gender diverse" individuals interested in attending the accredited virtual course, titled "Advancing Excellence in Transgender Health."

But when National Review asked Harvard to comment on the legality of offering free access to an accredited course based on transgender identity, the medical school responded that the course has been postponed. The university had removed the description of the fee waivers from its website.

"The continuing education course 'Advancing Excellence in Transgender Health: A Core Course for the Whole Care Team,' which is offered and developed by the Fenway Institute and accredited by Harvard Medical School, has been postponed and will be rescheduled for later this academic year," Harvard Medical School's media team wrote in an email. "HMS [Harvard Medical School] remains committed to ensuring that the courses we accredit comply with applicable laws."

Before National Review reached out, the conference web page also advertised ten full-tuition scholarships for "students pursuing a career in LGBTQIA+ health care." Any mention of these full-tuition scholarships has also been removed from the website.

The eleventh annual "Advancing Excellence in Transgender Health" course, which was originally scheduled to occur online from October 24 to 26, is a post-graduate continuing-education course for credit that is open to health-care professionals including physicians, nurses, psychologists, and social workers.

The Harvard Medical School website still states that the course is "designed to train the whole health care team in providing skilled and confident gender-affirming health care." The course was developed by the Fenway Institute, an institute within Fenway Health, which describes itself as "an interdisciplinary center for research, education, training and policy development" with the mission to "optimize health and well-being for sexual and gender minorities (SGM) and those affected by HIV."

According to a webpage listing the schedule that has since been scrubbed, sessions in the three-day online course included "Addressing Unconscious and Implicit Bias," "Gender Identity in Children and Adolescents," "Gender-Affirming Surgeries Panel," "Families of Transgender Youth Panel," "Healthcare Experiences of Transgender and Gender Diverse People of Color Panel," and "Addressing Disinformation about Transgender and Gender Diverse Health."

“Harvard's course, Advancing Excellence in Transgender Health, looks to be a one-sided approach to treating children with gender dysphoria, unfortunately rooted firmly in an 'affirming' model," Kurt Miceli, the medical director of the organization Do No Harm, said. "It gives no apparent recognition to the systematic reviews showing insufficient evidence to support so-called 'gender-affirming care' in minors and seems to overlook the potential long-term consequences in children from these interventions — particularly considering concerns about informed consent, social influence, and co-occurring conditions like autism and other mental health challenges. Though presented under the banner of academic rigor, the course lacks the level of scrutiny essential for clinicians to be fully informed about the harms and dangers of so-called 'gender-affirming care' in minors.”

The standard course fee is $650 for physicians, but advertising fee waivers to members of "transgender and gender-diverse communities" put Harvard University in murky legal waters. The offer of fee waivers based on transgender status presents an interesting test to explore the challenging questions surrounding the enforcement of anti-discrimination law.

The Supreme Court of the United States ruled in Bostock v. Clayton County (2020) that discrimination on the basis of homosexuality or transgender status presupposes an employer intentionally treat employees differently because of their sex, and thus violates Title VII of the Civil Rights Act, which bans discrimination "because of" a trait such as "sex."

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex," reads the Bostock opinion written by Justice Gorsuch. "Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

Under the court's reasoning, an employer who retains a female employee who wears makeup and a wig but terminates a male employee for wearing makeup and a wig has committed sex discrimination that violates Title VII.

“[Bostock] didn't make transgender identity a separate, defined class covered by Title VII, but it did say that if you accept a behavior from one sex that you wouldn't accept from the other sex, then you are treating someone differently because of sex, and therefore Title VII is implicated," Dan Morenoff, the executive director of the American Civil Rights Project organization, told National Review.

Since the medical school's fee waiver is not a matter of employment, the Bostock decision does not directly apply. But at present, it is unclear whether Bostock's interpretation of sex discrimination in Title VII similarly applies to Title IX, a provision of the Civil Rights Act which bars federally funded institutions from discriminating based on sex.

In his dissent, Justice Alito worried that the reasoning in Bostock could apply outside of Title VII. He warned that the Court's opinion "interpreting discrimination because of 'sex' to encompass discrimination because of sexual orientation or gender identity" will almost certainly "have far-reaching consequences," then proceeded to note that "over 100 federal statutes prohibit discrimination because of sex," including Title IX.

And even if Bostock‘s reasoning did directly apply to Harvard's fee waiver, legal professionals disagree on the fee waiver's legality because the Bostock decision itself lacks clarity.

Some lawyers and legal scholars argued that, since both a male who self-identifies as transgender and a female who self-identifies as transgender would be eligible for the fee waiver, Harvard University's Medical School would not be committing illegal discrimination, even if Bostock applies.

"Access to the fee waiver is based on how an individual identifies, regardless of the individual's sex. If you have a male who identifies as a man and a male who identifies as a woman, only the latter would have access to the fee waiver, so access is based on 'gender identity,' not sex" said Rachel Morrison, a fellow at the Ethics and Public Policy Center. "But the question is whether the medical education fee waiver based on 'gender identity' is prohibited under federal civil rights law. And I would say no."

Other legal professionals suggested otherwise. They argued that a male who self-identifies as a woman would be eligible for the fee waiver but a female who self-identifies as a woman would not qualify, and if applying the "but-for" causation test in Bostock, then Harvard is likely committing illegal discrimination.

One lawyer said in an interview that Bostock held discrimination on the basis of gender identity is discrimination on the basis of sex, and so Harvard's discrimination in favor of gender identity amounts to illegal discrimination on the basis of sex, if Bostock applies to Title IX.

Lawyers and legal scholars said that the case West Virginia versus B.P.J., which will likely be decided by the Supreme Court this term, might clarify the legality of Harvard's transgender-only fee waiver. The case centers on whether Title IX or the equal protection clause of the 14th Amendment prevents a state from organizing sports teams on the basis of sex.

"The Supreme Court will soon likely answer what 'sex' means in Title IX, and I anticipate that as in Skrmetti the Court will not extend Bostock's reasoning beyond Title VII," Morrison said of the West Virginia versus B.P.J case.

Morrison explained that the Biden administration's Title IX regulations expanded the definition of "sex" to prevent discrimination on the basis of gender identity, and if those regulations remained, Harvard's fee waivers would likely violate the law.

"Ironically, the fee waivers would be illegal under the Biden administration's view that Title IX prohibits gender identity discrimination, while the fee waivers do not violate Title IX under the Trump administration's view that gender identity is not a protected class," said Morrison.

Prior to the course being postponed, all of the fee waivers had been awarded and a waitlist was created for the overflow applicants, according to an email conversation between an individual and a Fenway Health employee obtained by National Review:

I am interested in having my tuition fees waived as a trans, disabled individual with headmates; excuse me for the tone of this email and the tagging, I am currently recovering from a PANIC ATTACK!

I hope everything finds you well on your end, also I am interested in knowing if there are allowances available for angelkin and twin spirit people; I am not an angelkin myself but my partner/friend Sitsky is (Orthodox Seraphim) + twin spirit. Is there an additional fee that could be waived on their behalf? I am sure they will get back to you zooner rather than later.

The Fenway Health employee — who seemingly did not detect that the email was a prank — responded to say that the individual could join the waitlist.

"I am so sorry, but unfortunately, we have dispensed all available waivers at this time; however, I am happy to add your name to our wait list in case we are able to offer any additional waivers," responded the Fenway Health employee.

Harvard Medical School, per its website, is accredited by the Accreditation Council for Continuing Medical Education and was awarded the council's highest level of accreditation, Accreditation with Commendation. Harvard Medical School is also accredited by the Accreditation Council for Pharmacy Education and the American Nurses Credentialing Center.