A rule being considered by the Trump administration that threatens to severely limit the federally-recognized definition of gender is raising alarm bells among transgender people and nonbinary people who worry for a near future where they're denied basic legal protections and civil rights.
The rule, which is currently under review in the Department of Health and Human Services to be enshrined in Title IX policy, would, in essence, define members of these groups out of existence.
But several activists and legal experts Broadly spoke to said they know exactly what it takes to shut down the anticipated policy proposal, and—though outraged about the message it sends to members of the LGBTQ community—they remain confident they'll be able to thwart the administration's latest attack on trans protections.
First and foremost, they feel buoyed by legal precedent: Federal courts have repeatedly ruled in favor of trans students who have sought protections under Title IX, the federal law that makes sex-based discrimination illegal in educational settings. In May, a U.S. district court ruled that Title IX guaranteed Gavin Grimm, a trans teen, the right to use the boys' bathroom at his Virginia school. And a month later, a federal judge in Florida handed down a similar decision, ruling that Title IX protected 17-year-old Drew Adams' right to use the bathroom that corresponds to his gender identity as well.
These rulings put the Trump administration's policy proposal on shaky legal grounds, according to Omar Gonzalez-Pagan, a senior attorney at Lambda Legal. Trans people and their allies have a clear advantage, he says.
"This proposed policy doesn't change the law," Gonzalez-Pagan tells Broadly. "Several courts have sided with us on this question, even those with judges appointed by Republican presidents. Law, science, medicine and real-life experiences are on our side."
Gonzalez-Pagan also emphasized that the rule currently under review in the Department of Health and Human Services hasn't officially been proposed yet, leaving some time for activists and allies to bolster the trans community and educate people about how best to fight such a policy, should it be adopted.
"Let me be clear: This administration has yet to make this a proposed rule, and it has yet to implement the rule," he says. "Until that day we need to elevate trans voices, discuss the real-life consequences of the rule, and use political pressure to prevent it."
Advocates have a clear view of what that political pressure looks like. Jess Davidson, the executive director at End Rape on Campus, says one of the greatest tools available to resist the potentially impending rule is the public comment period, a window of time during which the government allows the public to provide feedback on policy proposals from different federal agencies.
"The great news is that if we all mobilize properly, we can stop it," Davidson says of the rule. "The government is legally required to read and consider comments entered during the public comment period, so getting as many people as possible to participate in that is a way to really just throw mud in the gears of this."
Defenders of trans rights may have an optimistic outlook on activists' and allies' ability to stave off a looming attack on the community, but it doesn't come without a clear-eyed understanding of what's at stake should it come to pass.
Transgender people are significantly more likely to be victims of sexual assault, harassment, and bullying, and 75 percent of transgender youth report feeling unsafe at school, often missing class out of concern for their safety.
"Trans students need more protections under Title IX right now—not to have their rights revoked," Sage Carson, an advocate at Know Your IX, says.
Carson also worries about the result of a protracted legal battle that could find its way to a Supreme Court made more conservative by the recent confirmation of Justice Brett Kavanaugh.
"I have no confidence in Kavanaugh or the very right-leaning court to protect those who are discriminated against and to affirm a definition and understanding of sex and gender that upholds the rights of trans individuals," she says. "I'm fearful this administration is trying to enshrine into law that trans people don't have these rights and protections—I think it's a strategic attack."
Still, Carson, Gonzalez-Pagan, and Davidson all see a path forward in the fight against the administration's proposed rule. In their view, sex isn't "immutable," as the administration is prepared to put forward—and neither is the federal government's power to define transgender existence.
"This is an incredibly harmful proposal," Gonzalez-Pagan says. "But we will defend trans rights in every venue to make sure that the law recognizes them, the government respects them, and society acknowledges we can all thrive when we have an equal opportunity,"