Source: Ted Eytan – Flickr
The Trump administration is considering preventing the government from recognizing transgender or gender-variant people’s identities.
The proposal to define gender as a biological, “immutable” condition, determined by one’s genitalia at birth, would effectively erase the transgender community from all government records, denying its members civil rights protections from discrimination and potentially making them ineligible to take advantage of certain federal programs.
The changes, which were proposed in a memo by the Department of Health and Human Services that has been circulating through the administration over the past few months, seek to define gender under Title IX and Title VII in a way that would ensure that neither statute can be used to argue against discrimination based on transgender status or sexual orientation, according to The New York Times.
Any dispute about a person’s sex — for example, someone who is born intersex — would be resolved based on genetic testing, according to the memo.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the memo reads. “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.”
The push for a stricter definition of gender is a backlash to efforts by the Obama administration, which granted recognition to the transgender community and sought to allow individuals to be treated according to their gender identity.
This led to a series of fights over whether transgender people have a right to access restrooms, locker rooms, changing facilities, college dormitories, and gender-specific programs — several of these legal battles are working their way through the nation’s courts.
“This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees,” Catherine Lhamon, the former head of the Office for Civil Rights, who helped write the Obama administration’s guidance on recognition for transgender individuals, said in a statement.
Many LGBTQ activists point to Roger Severino, the director of the Office for Civil Rights at the Department of Health and Human Services, as the key person behind the push for the policy change
Severino, the former head of the DeVos Center for Religion and Civil Society at the conservative Heritage Foundation, previously railed against recognition of transgender status, and specifically a section of the Affordable Care Act prohibiting discrimination against transgender people in federally-funded healthcare programs.
Severino is also seen as the person behind a proposed HHS rule that would grant a religious exemption to workers in the healthcare field allowing them to refuse to treat any patient if they personally disagree with that person’s medical decisions, lifestyle, sexual orientation, or transgender status.
Following the announcement of the proposed change, transgender people took to social media to blast the administration and to put a human face to the debate over transgender rights by sharing their pictures and stories using the hashtag #WontBeErased.
Jocelyn Samuels, who previously held the same position at HHS as Severino, issued a statement criticizing the proposed change.
“The Administration’s proposed definition of sex is not only contrary to precedent of the Supreme Court and numerous other courts, but a gratuitous effort to inflict harm on a vulnerable population and a threat to the privacy of all Americans,” she said.
Other LGBTQ groups added their voices to the growing chorus of opposition. Some even acknowledged that the administration’s stance on gender identity now provides more impetus for Congress to clearly define what rights or protections LGBTQ people can enjoy under the law.
“Setting a destructive precedent, the Trump-Pence administration intends to erase LGBTQ people from federal civil rights protections and eviscerate enforcement of non-discrimination laws,” Chad Griffin, the president of the Human Rights Campaign, said in a statement.
“Defining ‘sex’ in this narrow language tailored to the talking points of anti-equality extremists is part of a deliberate strategy to eliminate federal protections for LGBTQ people,” he added. “This is a direct attack on the fundamental equality of LGBTQ people and, if this administration refuses to reverse course, Congress must immediately take action by advancing the Equality Act to ensure that LGBTQ people are explicitly protected by our nation’s civil rights laws.”
“We’re seeing ongoing efforts to uproot existing protections for LGBTQ people — and in addition to harming people, these maneuvers are muddying the nondiscrimination landscape,” Masen Davis, the CEO of Freedom for All Americans, said in a statement. “It’s time for a national conversation about how we can protect all LGBTQ Americans, rather than allowing a handful of officials to pursue hurtful, destructive policies that don’t reflect our nation’s values and harm vulnerable Americans.”
The National Center for Lesbian Rights, which has been at the forefront of many court cases arguing on behalf of LGBTQ rights, vowed to fight the administration’s policy and expressed hope that the nation’s courts would take action to stop the policy from being enacted.
“This proposed policy is a heavy-handed attempt to strip federal legal protections from transgender people,” NCLR Legal Director Shannon Minter said in a statement. “It is part and parcel of this administration’s ongoing attempts to scapegoat vulnerable groups and to promote extremist policies rooted in stigma and stereotypes.
“The federal courts have interpreted sex discrimination laws broadly for decades in order to ensure that all forms of sex-based discrimination are prohibited, including discrimination against transgender people,” Minter added. “This proposal is out of step with longstanding legal precedent and would create havoc in federal agencies, which are charged with enforcing the law and cannot simply disregard binding legal decisions. And no matter what this administration orders federal agencies to do, the courts still have the authority to interpret these laws and will continue to protect transgender people.”