In one of the Donald Trump administration’s most flagrant acts of evil to date, a narrowed legal definition of gender that is currently under consideration could jeopardize the rights of 1.4 million transgender Americans.
A Sunday report from the New York Times makes public an effort spearheaded by the Department of Health and Human Services to more explicitly define gender under the federal civil rights law, Title IX.
A memo obtained by the Times stresses that enforcement of the law necessitates a more explicit definition of gender, one determined “on a biological basis that is clear, grounded in science, objective and administrable.”
The memo calls for the Departments of Education, Justice, Labor, and Health and Human Services — the four agencies that are most responsible for enforcing Title IX — to embrace the definition. The notion is that if these four agencies come together around a uniform definition, courts will be more likely to accept it.
Title IX, for anyone who needs a brief history lesson is actually just one piece of a larger law, the Education Amendments Act of 1972. It states, quite plainly:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The newly proposed narrower definition would view gender identity in binary terms, making it an unchangeable designation based on the genitalia a person is born with. In situations where there’s some dispute over gender, genetic testing would be employed.
This definition of gender would effectively invalidate the federal recognition of the estimated 1.4 million transgender Americans — rights that were significantly expanded by the courts during President Barack Obama’s time in the White House. Catherine E. Lhamon, an Obama administration vet who ran the Education Department’s Office for Civil Rights — which made great strides for trans equality — sums up the issue succinctly.
“This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees.”
In a statement provided to Mashable, the National Center for Transgender Equality decries the “heartless restraints” this redefinition would place on the lives of transgender citizens. It does provide some small reassurance, however, pointing to the legal battles that have already set precedents for trans rights in America.
In the name of preempting some misinformation, let’s talk about what this proposed rule would not do. It would not eliminate the precedents set by dozens of federal courts over the last two decades affirming the full rights and identities of transgender people. It would not undo the consensus of the medical providers and scientists across the globe who see transgender people, know transgender people, and urge everyone to accept us for who we are. And no rule—no administration—can erase the experiences of transgender people and our families. While foolish, this proposed rule deflates itself in the face of the facts, and the facts don’t care how the Trump administration feels.
This isn’t the first time the current administration has worked to curtail trans rights in America. Just a few months after taking office in 2017, Trump tweeted out his plan to bar trans individuals from serving in the U.S. military “in any capacity.”
That was a step too far on its own, a move that would have effectively stripped away the rights of trans individuals who already serve. It’s been challenged in court and hasn’t yet been enforced as an official policy.
This new Department of Health and Human Services memo represents an even graver threat to trans rights. It will directly impact ongoing battles over trans rights in everything from schools to public bathrooms, and will in general strip away many of the basic rights from some of America’s most vulnerable and discriminated against citizens.
The Human Rights Campaign, a prominent LGBTQ civil rights advocacy group, has already responded to the Times report.
“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,” HRC president Chad Griffin 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. 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.”
In case it’s not already clear, let me spell it out in more direct terms: The Trump administration is actively working to invalidate the legal existence of transgender citizens. The political calculus apparently holds that there are more people in Trump’s base than there are transgender citizens and their allies.
Prove that math wrong. Make sure you vote in November.
UPDATED Oct. 21, 2018, 12:30 p.m. ET with a clearer explanation of existing legal precedents supporting trans rights and a statement from the National Center for Transgender Equality.