Over the weekend, news broke that the Trump administration was considering imposing a new legislative definition of gender that would effectively erase the legal existence of transgender people. As reported by the New York Times, the federal Department of Health and Human Services (HHS) is attempting to impose a universal definition of gender that is based in biology and “grounded in science, [that is] objective and administrable.” Of course the use of the word science here is rhetorical, as the biology around sex and gender is far more complicated than a simple gender binary defined by sex organs. Under the proposed legislation, the only way to contest the government’s assertion of your legal gender identity will be through genetic testing.
The push for this legislation is being led by Roger Severino, the head of the HHS Civil Rights Office under the Trump administration, who circulated a memo on the subject around his department. Severino was a controversial appointment to the Civil Rights Office as he’s been notorious for being an advocate for anti-LGBTQ policies that actively seek to make life difficult for queer folks. He once penned an opinion piece where he eschewed legislation that adds “gender identity” to human rights protections, warning that “the radical left is using government power to coerce everyone, including children, into pledging allegiance to a radical new gender ideology over and above their right to privacy, safety, and religious freedom.”
From this view, the extension of human rights to transgender citizens comes at the expense of the rights of “normal” folks and jeopardizes public safety because it allows “men in dresses” to use the woman’s washroom. Such views are a gross distortion of the truth, as research demonstrates that transgender citizens face increased risk of violence and discrimination and are grossly in need of free speech protections.
For many, there are few times where you have to be concerned about your legal identity. Save for the occasional disruption of renewing a driver’s licence or passport, most people can fluidly navigate public spaces and have access to services. At most, you might present proof of your identification several times a day, from using a bank card to pay for your groceries, to getting carded when buying alcohol.
However, for transgender folks, the experience of navigating the public is rife with precarity. There is an abundance of trans citizens who, for various reasons, may not have the opportunity to change their legal identity—and appearing differently than what appears on your photo ID can lead to countless unpleasant and vulnerable experiences.
Every time we present our legal identities in a transphobic and cisgender supremacist society, we risk outing ourselves to someone who might actively discriminate against us.
What’s more, the process of legally transitioning is complex and messy. It costs a fair amount of money in administrative feeds, requires an abundance of letters from doctors and psychologists, and takes a whole lot of time to process. One mistake on a document might set you back for months. And while you wait for one document, you might need to use another that carries a completely different legal identity. At some points, none of your documents match up and this can entail some intense consequences.
For instance, I recently had to confirm my university enrollment to prevent my student loans from losing their interest-free status and going into repayment. However, when I went to apply for interest-free status, it turned out that my name and gender on my provincial identity didn’t align with my social insurance number on the federal end.
Not being able to apply for interest-free status put me on a frantic adventure where I had to first get my birth certificate changed in another province before being able to even address the identity conflict in my social insurance number. If the process took too long, I would have to start monthly payments which almost cost as much as my rent.
Transgender folks are often lost in gender purgatory where we are in-between identities and essentially rendered invisible to state agencies.
I can’t emphasize enough how dangerous the Trump administration has become for transgender folks. To erase us from legally existing is to deny us access to travel, public spaces, health care, insurance, and to make legal remedies for human rights offences and hate crimes nearly impossible. I can’t even imagine a life more precarious than being literally told I don’t exist. These structural disadvantages render us as always inferior in the eyes of the law.
If this push to change the legal definition of gender succeeds, it will set a dangerous precedent for conservative politics that could spill over into the Canadian mainstream. Transgender human rights have become a hot button issue with conservative politicians after the ascension of C-16 into federal law. The Act to Amend the Canadian Human Rights Code and the Criminal Code added gender expression and gender identity to the protected groups under the Charter of Rights and Freedoms—a monumental shift that finally recognized transgender folks as real humans deserving of dignity.
However, conservative ideologues and politicians kicked up controversy claiming that the legislation would dismantle freedom of speech and expression by forcing people to use a person’s correct pronouns under pain of prison. This damaging myth was especially popularized by life coach guru Jordan Peterson who claimed that such legislation would lead to compelled speech and the criminalization of anti-trans viewpoints.
The conservative logic at play here is subtle. For transphobic folks, transgender people are not the gender they claim. They might use a person’s correct pronouns, but they also tend to believe that a trans person’s actual gender is delusional. No matter what a trans person might claim, they are the gender they were assigned at birth. Under this logic, to force a person to use the correct pronouns of a trans person is to humour the delusion. Hence, the favourite anti-trans slogan, gender is biological.
Meanwhile, there is a general scientific and medical consensus that we are the gender we say we are.
The 2019 Canadian federal election is looming just around the corner, and we could very well see a return to a Conservative government. Conservative politics have already been bolstered by wins by provincial conservatives like Doug Ford, who has been known to hold anti-LGBTQ sentiments and is willing to throw around the “notwithstanding” clause to suspend the Charter of Rights and Freedoms. His bias against the queer community shone brightly during his crusade against the progressive sex-ed crusade in Ontario primary and secondary schools where he called trans related education a liberal ideology that preached “six different genders and all the nonsense.”
Scheer himself, the leader of the Conservative Party of Canada, has held anti-queer sentiment in the past—he has voted against legislation that legalized gay marriage and enshrining Charter protections for transgender citizens. And though Scheer probably wouldn’t carry forward Trump-like anti-trans legislation, he could put C-16 on the cutting block. Last February he rather dramatically asserted that the next election will be about “being free or unfree.”
Human rights have always been built on shaky ground, but in the era of Trump-style politics, even the shaky ground seems to have fallen away. Once we achieve basic human rights, we are still at the mercy of populist opinion and that means as soon as a Trump-like figure bumbles his way into power, we risk losing everything.
If there was ever a need for transgender allies, now is the time.
Follow Abigail Curlew on Twitter.
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