The Trump administration is poised to revoke the rights and protections guaranteed to some 1.4 million Americans who identify as transgender by redefining the legal definition of gender under Title IX, the federal civil rights law that bans discrimination in education on the basis of gender. This is according to the New York Times, which obtained a memo being circulated by the Department of Health and Human Services (HHS) that reportedly urges key government agencies, including the departments of Education, Justice and Labor, to follow their lead by seeking to define gender “on a biological basis that is clear, grounded in science, objective and administrable.”
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”
According to the Times, DHHS plans to present the new definition to the Justice Department before the end of the year. If adopted, the change would effectively roll back policies enacted by the Obama administration which updated the legal concept of sex in federal programs, including Title IX, to reflect an inclusive understanding of gender identity as determined by an individual’s choice, not biological attributes at birth. If enacted, the change wouldn’t impact state laws or services, like, for example, New York City’s recently approved third gender option on birth certificates for trans adults, a change which makes it easier to amend other official documents and forms of ID.
“Their little scheme as laid out in that memo seems to indicate that they really have a childlike, 1940s view of sex and gender,” Mara Keisling, the executive director for the National Center for Transgender Equality, tells Rolling Stone. “They really seem to think everybody has very typical genitalia, everybody has a very typical chromosomal markers. And that isn’t the case. There’s a whole range of people who don’t fit into that and they seem to just be disregarding them. They wanted to find a definition that was administrational and this is clearly not. Their whole thing about genetic testing? That stuff just isn’t possible.”
While HHS officials declined to explicitly comment on the memo to the Times, they did cite a 2016 federal court ruling on a civil rights statute in the Affordable Care Act as the basis for their position. In that case, Judge Reed O’Connor of the Federal District Court in Fort Worth, Texas, ruled that “Congress did not understand ‘sex’ to include ‘gender identity.’”
“The court order remains in full force and effect today and HHS is abiding by it as we continue to review the issue,” Roger Severino, the director of the Office for Civil Rights at the DHHS, said in a statement.
However, as a coalition of civil rights groups pointed out in a recent memo presented to the administration, the “overwhelming majority of courts” have validated the Obama administration’s understanding “that anti transgender bias constitutes sex discrimination under federal laws like Title IX.” Regardless of how “sex” is defined, transgender advocates say the federal law still offers them the same protections.
“They think they’ve figured out how to define sex without transgender people,” Keisling tells Rolling Stone. “The flaw in that comes because you cannot define transgender people without sex. If I’m fired from my job because I’m transgender, or if an eighth grader is thrown out of school because they are transgender, or somebody is denied health care because they’re transgender, it is because of their sex. It is because you think I’m the wrong kind of woman, or not a woman, or you think I’m a man, or too much of a man — whatever it is you think, it is still about ‘man and woman.’ They’re trying to define sex as just ‘man and woman,’ but we’re still included in the that.”
While advocates believe they have science, the medical community and as legal precedent on their side, they say the administration’s message is being heard loud and clear.
“We no longer have a federal government that will enforce federal civil rights laws,” Keisling continues. “People are genuinely very scared. They they see what the administration has done to other communities and they know that there are no limits to how low they will go. … What this is, is the administration saying, ‘We not only don’t care about trans people, we don’t like them and we are going to hurt them.’ It’s a way of trying to make [the definition] uniform throughout the federal government in what they hope their base will see as a reasonable, unified way. And it’s not, and we’re going to fight them every step of the way.”