October 21, 2018; Advocate
Yesterday, the New York Times revealed that Trump’s Department of Health and Human Services has been circulating a memo that proposes a uniform approach to gender to be used by key government agencies to redefine transgender rights or lack thereof under anti-discrimination statutes like Title IX. This approach would define one’s “sex” by the genitals one is born with “on a biological basis that is clear, grounded in science, objective, and administrable.” Gender would thus be defined as either male or female and would be immutable. Disputes would have to be resolved through genetic testing. HHS plans to present the new policy to the Justice department before year’s end.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo, which was drafted and has been circulating since last spring. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”
The proposed change would eliminate any federal recognition of the transgender population and would remove the civil rights protections they are now afforded. This is part of an ongoing effort to undo Obama-era reforms; the effort has, according to the New York Times, included an effort to bar transgender people from the military, to roll back transgender rights embedded in the nation’s health care law, and the rescinding of policies that recognized gender identity in schools, prisons, and homeless shelters. Questions about gender identity were also taken out of the 2020 census survey.
The ACLU has promised to sue, and Harper Jean Tobin, the policy director of the National Center for Transgender Equality, has called the push “an extremely aggressive legal position that is inconsistent with dozens of federal court decisions.” In fact, the NYT suggests that it is these court decisions that sparked this effort at a rollback of formal rights.—Ruth McCambridge