On Sunday, The New York Times released the contents of a leaked memo reportedly circulating within the Trump Administration that aims to legally define gender "as a biological, immutable condition determined by genitalia at birth." Times reporting exposed a Department of Health and Human Services–led agenda to eliminate transgender protections that currently exist under Constitutional amendments that protect people against discrimination on the basis of sex. The memo reportedly suggests that any disputes about a person's sex should be clarified using genetic testing. If the memo's guidelines were to be adopted, it would strip legal gender recognition from around 1.4 million transgender Americans.
Under the Obama administration, loosened federal regulations allowed the interpretation of sex to include gender identity, and courts have since upheld that legal perspective in many cases. The Trump administration's memo reportedly outlines a coordinated effort on the part of four major government agencies—the Departments of Education, Justice, Health and Human Services, and Labor—to undo those Obama-era protections. According to the Times, if implemented, the Trump administration's definition would "establish uniformity in the government and increase the likelihood that courts will accept it."
Hours after the leaked memo was exposed, hundreds of LGBTQ New Yorkers and their allies gathered at Washington Square Park in Manhattan for a rally where prominent trans voices spoke out against the memo. "We must fight back, and most importantly, this November, we must vote," said Lambda Legal attorney Omar Gonzalez-Pagan. Standing in front of the Washington Square arch, he spelled out the issue: "If this rule comes to pass, we will see them in court […] This fight is about the right to exist. To live more and die less."
For young people like Mary, who came out in the cold on Sunday holding a sign that read "Eat My Trans Shorts," the federal attack is galvanizing. They recently come out as non-binary and said they felt a need to "show up" openly as a non-binary person and demonstrate that they're "not going anywhere." Mary wanted to be there for those who couldn't. "It's important to me," they said.
Another attendee, a writer named Somerset, held a sign that read "Butch Dykes for Trans Rights." She told Broadly that she came to Washington Square Park despite having homework to do because "this administration is endangering people." Though Somerset is exploring her own gender, she told Broadly she passes as cisgender and feels a need to utilize that privilege in order to ensure that people "know that they're loved."
The Trump administration has been chipping away at trans rights since its formation, and this is not the first time we have seen how top-level guidelines can severely impact daily life for transgender people. This was exemplified in the most high-profile Title IX case concerning trans students: G.G. v. Gloucester County School Board, filed by the ACLU on behalf of Gavin Grimm. Grimm, a transgender boy from Virginia, became a national icon when he sued his high school for not allowing him to use the bathroom that matched his gender identity. In 2016, the US Court of Appeals in the 4th circuit ruled in Grimm's favor, referencing "guidance from the Department of Education that supported Gavin’s legal argument." The Supreme Court agreed to review the decision—and, if they had ruled in Grimm's favor, it would have established the highest degree of legal precedent protecting trans students under Title IX. In the winter of 2017, however, the Trump administration rescinded an Obama-era Title IX guidance that had aided Grimm's lower-court win. As a consequence, the Supreme Court canceled its hearing, sending Grimm's case back down to a lower court.
The Times reports that DHHS officials "confirmed that their push to limit the definition of sex for the purpose of federal civil rights laws resulted from their own reading of the laws and from a court decision," though it remains unclear which decision that may be.
At the rally on Sunday night, many speakers pointed out that, although the fight today feels new because it is coming from top federal officials and so extremely and blatantly aims at disenfranchising transgender Americans, it is part of a long effort to eliminate trans rights. Many also said that, although the memo targets the trans community specifically, its implementation would set a frightening precedent for the federal government's ability to infringe on individual civil rights.
“It’s not just about transgender people, it’s about all of us," said Meredith Talusan, a prominent transgender journalist. "It's about the fundamental principles of justice that we as a nation—as a people—are trying to uphold."