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How the Trump administration could make trans people invisible under the law

The document encourages federal agencies to adopt a rigid, outdated definition of “gender,” dictated “on a biological basis that is clear, grounded in science, objective and administrable.”

by Tess Owen
Oct 22 2018, 8:21pm

America’s transgender community has withstood numerous blows as result of the Trump Administration’s efforts to dismantle their civil rights. Now, they’re facing what could be the most devastating move of all: erasure.

Over the weekend, the New York Times reported the existence of an internal Department of Health and Human Services memo that pushed for a measure that would essentially gut federal civil rights protections for transgender individuals. The document encourages federal agencies to adopt a rigid, outdated definition of “gender,” dictated “on a biological basis that is clear, grounded in science, objective and administrable,” according to the Times. The proposal also includes a provision to require individuals to undergo genetic testing to clear up lingering disputes or confusion about their gender.

If federal agencies implement the proposal, the government would no longer have to view the approximately 1.4 million transgender people in America as a protected class under civil rights law, experts told VICE News.

“The concern is that there are many areas of federal regulation that directly affect the lives of trans individuals,” said Suzanne Goldberg, who heads Columbia Law Schools’ Center for Gender and Sexuality Law, “from obtaining documents like passports to accessing healthcare via the Affordable Care Act.

Basing gender-identity solely on biological characteristics also runs contrary to the consensus shared by the medical community: The American Medical Association, for example, defines that gender “includes more than sex and serves as a cultural indicator of a person’s personal and social identity.”

The next steps

The Department of Health and Human Services is reportedly preparing to present the memo, which has circulated since the spring, to the Justice Department by the end of the year. If approved, the new definition of gender could be enforced across multiple agencies, including the Department of Justice, Department of Education, the Department of Health and Human Services, and the Department of Labor.

Those federal agencies all have Offices of Civil Rights, which enforce nondiscrimination laws as they relate to education, healthcare, housing, and employment. Right now, those offices receive and vet complaints regarding discrimination on the basis of gender identity. Without a more inclusive definition of gender, those agencies could essentially ignore discrimination against transgender individuals.

Activists and legal experts said the new definition of gender would undo years of hard-fought progress for trans civil rights, much of which was made under the Obama administration.

"If you want to claim otherwise, you are under obligation to present reliable genetic evidence to the contrary. That’s a phenomenal invasion of privacy."

"Not only does [the memo] say that gender identity is not covered by current civil rights laws, but that the definition of gender is based on your sex assigned on birth and what your genitals are at birth," said Jocelyn Samuels, executive director of the Williams Institute at UCLA law and former director of the Office for Civil Rights at HHS under Obama. "If you want to claim otherwise, you are under obligation to present reliable genetic evidence to the contrary. That’s a phenomenal invasion of privacy."

A number of landmark cases — most recently the case of Gavin Grimm, a transgender teen in Virginia — have specifically addressed whether federal civil rights law protects gender identity

Grimm’s school implemented a policy that all students had to use facilities that corresponded to their sex assigned at birth. Grimm, with the help of the ACLU, sued his school district, and a federal judge affirmed that federal law protected him from discrimination.

“Let us be clear: For years, courts across the country have recognized that discriminating against someone because they are transgender is a form of sex discrimination, full stop,” said Lambda Legal litigation director Diana Flynn in a statement.

READ: Trans students are winning legal battles across America

Samuels said that the Trump Administration has routinely pointed to The Department of Health and Human Services declined to comment on the leaked memo to the Times but said that the memo simply followed a decision out of a Texas district court in 2016 that took the position that civil rights law that governs healthcare discrimination doesn’t cover gender identity.

“But that’s outweighed by the breadth of authority on the other side,” Samuels said. “There has been an emerging consensus in the courts that gender identity is covered by existing laws.”

On a press call, lawyers with ACLU made similar comments. “We’ve already sued, and we’ve already won,” said Chase Strangio, a transgender lawyer who fought and won Grimm’s case.

The backlash

Under the hashtag #WontBeErased, activists and civil rights leaders have promised to push back against the Trump administration’s latest and most significant efforts to dismantle transgender rights.

Trans people also took to Twitter to post selfies, saying #ThisIsWhatTransLooksLike and #WeWontBeErased.


Hundreds of people attended a protest in Washington Square Park in New York City Sunday evening, organized last-minute by LGBTQ advocacy groups Lambda Legal and Voices4.

The next day, hundreds more marched to the White house, with baby blue, pink, and white flags, a symbol of transgender rights. Protesters chanted “We’re trans. We’re here. We’re fabulous. Don’t fuck with us.”

The memo signifies yet another blow for transgender Americans. Over the last two years,the Trump administration has attempted to ban transgender individuals from openly serving in the military, removed protections that barred federal contractors from discriminating against employees on the basis of gender or sexual orientation, and rescinded guidance that prisons house inmates according to their gender identities.

“This administration has made clear numerous times that it does not believe that current civil rights law bars discrimination based on gender identity,” Samuels said.

Cover image: Nick Rondoletto, left, and Doug Thorogood, a couple from San Francisco, wave a rainbow flag and hold a sign against a proposed ban of transgendered people in the military at a protest in the Castro District, Wednesday, July 26, 2017, in San Francisco. (AP Photo/Olga R. Rodriguez)

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