According to a Department of Health and Human Services (HHS) memo obtained by the New York Times, the Trump administration may move to narrowly define gender as biological and unchangeable, based on the genitals present at one’s birth. “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 memo reportedly states.
The legal definition of “sex” is essential for enforcement of Title IX, the federal civil rights law that protects people from gender discrimination in education programs receiving government funds. The definition also has implications for rulings related to health care, prisons and homeless shelters.
The HHS proposal represents the latest government effort to roll back Obama-era rules that provided more freedoms and federal protections for the 1.4 million transgender Americans. Before being elected, President Trump called himself a “real friend” to the LGBT community. Since taking office, however, his administration has tried to bar transgender people from serving in the military and has challenged civil rights protections related to health-care law.
Gender vs. Sex: Officials Say They’re Following Court Orders
HHS officials point to recent rulings that “sex” doesn’t include “gender identity.” Specifically, they point to decisions by Texas Judge Reed O’Connor regarding the use of school bathrooms and locker rooms.
The newly obtained HHS proposal claims that “courts and the previous administration took advantage of [the lack of a stand-alone definition of sex] to include gender identity and sexual orientation in a multitude of agencies, and under a multitude of laws.” That “led to confusion and negative policy consequences in health care, education and other federal contexts,” it adds.
Roger Severino, director of the HHS Office for Civil Rights, has objected to what he calls the “radical gender ideology” of the previous administration. Severino, who also directs the Heritage Foundation’s DeVos Center for Religion and Civil Society, called Obama’s policies “a series of unilateral, and frequently lawless, administration attempts to impose a new definition of what it means to be a man or a woman on the entire nation.”
Although the Justice Department hasn’t yet commented on the HHS memo, previous decisions by Attorney General Jeff Sessions indicate the proposed new definition of sex will be enforced. For example, in an October 2017 memo, Sessions said protection against workplace discrimination doesn’t extend to the issue of gender identity.
Transgender People Fear They’re Being Erased
As news of the memo spread Sunday, LGBT advocacy groups and transgender people quickly expressed opposition. Photos appeared on social media with the hashtag #WontBeErased, and protesters gathered in New York City Sunday night and at the White House Monday morning.
In a statement, the Human Rights Campaign calls the HHS proposal “the latest effort in a consistent, multi-pronged campaign by the Trump-Pence White House over the past two years to undermine the rights and welfare of LGBTQ people.”
Catherine Lhamon, who led the Education Department’s Office for Civil Rights under Obama, says the proposed change “quite simply negates the humanity of people.”
Mara Keisling, executive director of the National Center for Transgender Equality, calls the proposal “a really intrusive policy that doesn’t make any sense scientifically.” She adds, “What this feels like to transgender people is trying to make us invisible, trying to say that we don’t exist, trying to say that we are nothing.”
