Transgender people across the world awoke Sunday morning to deeply disturbing news that the Trump administration is attempting to narrowly define sex and gender in federal civil rights laws. The change, led by a memo from the Department of Health and Human Services, takes specific aim at Title IX, the federal civil rights law that bans gender discrimination in education programs that receive federal funding.
According to the New York Times, the memo proposes to “define sex as either male or female, unchangeable, and determined by the genitals that a person is born with.”
Perhaps even more troubling, the Times reported that the memo proposes that only originally issued birth certificates would constitute definitive proof of a person’s sex, correctible only by “reliable genetic testing.” Such a stark change could impact thousands of transgender people who have already updated their birth certificate, subjecting them to humiliating invasions of privacy when attempting to challenge discrimination in programs that receive federal funding.
Advocates acknowledged the memo could pose a very real threat if various government agencies incorporate it into their official regulations. Such a shift could halt the recent progress toward establishing federal civil rights for the 1.4 million transgender people living in the United States. While the Times article provides some basic information, it has also created fear and uncertainty, generating unanswered questions about the often confusing federal rulemaking process.
To address those concerns, let’s discuss how this memo may impact the lives of transgender people.
First, A Caveat
As the Times reported, the memo was drafted last spring but has been “dividing career and political appointees across the administration” since it began being circulated.
Thus far, the memo has not garnered the support that Roger Severino, director of the HHS Office of Civil Rights Director and a former Heritage Foundation lawyer, might have hoped. Severino and his supporters have an uphill battle ahead of them. Even if the memo’s proposed definition is approved by the Department of Justice (DOJ), HHS must still engage in the formal rulemaking process to give the definition force of law under Title IX. The DOJ simply approving this memo does not constitute an immediate government-wide change, as the Times article seems to imply.
And furthermore, the process is lengthy, requiring a notice of formal rulemaking be filed in the Federal Registrar, a substantive review by the White House’s Office of Management and Budgets, and a minimum 60-day notice and comment period where the public and advocates can weigh in about the proposed rule.
What many people don’t know is that the federal agency proposing the rulemaking must log and read every single unique comment it receives, which creates evidence that trans rights advocates can later use to argue that the rulemaking was “arbitrary and capricious.” This process can and often does take months, especially for deeply flawed and controversial proposals such as this one. And that’s the process just for one agency to formalize this definition. If other agencies want to pursue similar action, they will have to go through the same lengthy and arduous rulemaking process.
What Could Happen If the Memo Is Implemented
If the Departments of Health and Human Services, Education, Labor and Justice do engage in formal rulemaking to incorporate this definition, it could garner the attention of federal courts with many recently appointed Trump judicial nominees. The courts may then use the new definition in interpreting claims of discrimination under Title IX brought by transgender people, limiting their ability to successfully challenge discrimination in schools, healthcare settings, law enforcement settings, and employment programs.
But it’s important to note that while federal courts have overwhelmingly affirmed that transgender students are protected by Title IX, the Trump administration has undercut federal protections for trans youth since the inauguration.
In February 2017, the administration rescinded Obama-era guidance on transgender students’ access to restrooms and locker rooms in schools. The very next month, the Department of Justice withdrew its official opposition to North Carolina’s notorious anti-trans House Bill 2. In a highly unprecedented move in June, the Education Department’s Office of Civil Rights withdrew its 2016 legal findings that a young trans girl had suffered discrimination at her Sparta, Ohio elementary school and closed her long-running discrimination case.
And almost exactly a year after rescinding the guidance, the Department of Education confirmed it is no longer investigating civil rights complaints from transgender students barred from school bathrooms.
Similarly, the Trump administration, especially the Jeff Sessions-led Department of Justice, has long signaled its hostility to the right of transgender people to access health care free from discrimination. In May 2017, the DOJ asked the Department of Health and Human Services to revisit the rule enforcing Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, skin color, national origin, sex, age, or disability in health care programs and activities that receive federal funding. The rule, which was finalized under the Obama administration in 2016, clarified that “a person’s sex included discrimination based on gender identity and sex stereotyping.” It was the first explicit federal protection for transgender people of its kind.
In announcing the move, the DOJ explained the “new leadership at HHS has now had time to scrutinize the Section 1557 rule, and has concerns as to the need for, reasonableness, and burden imposed by [challenged] parts of the rule.” DOJ stated it wanted to “give HHS the opportunity to initiate rulemaking proceedings to reconsider the rule.”
This memo affirms that the Trump administration remains fully committed to foreclosing federal avenues for transgender people to challenge discrimination in health care access, an area where data shows they are very likely to experience prejudicial bias. This memo is quite simply the administration’s latest attempt to solidify their regulatory anti-trans game-plan, which they have been working at from the very first days of Trump’s presidency.
What the Draft Memo Does Not Mean for Trans Rights
There is a lot that this draft memo cannot do.
This memo cannot erase dozens of existing federal court rulings that protect trans people across the country in schools, healthcare settings, rehabilitation programs, and employment.
While the Trump administration was withdrawing from trans discrimination cases in schools, the Seventh Circuit Court of Appeals — governing Wisconsin, Illinois, and Indiana — announced its decision in Whitaker v. Kenosha Unified School District. Ash Whitaker’s school administrators refused to allow him to use the boys’ bathroom which put him in the impossible position of aggravating a serious medical condition by avoiding the restroom altogether; he feared the prospect of administrative discipline, which might hurt his chances for college. The court found that the harms Ash experienced were severe and well-documented and firmly established that discrimination against transgender students constitutes sex discrimination under Title IX.
Even despite the Department of Justice trying to gut protections for trans people settings, a federal district court in Minnesota handed down a decision last month in Tovar v. Essentia Health sidestepping such attempts.
When Brittany Tovar tried to access gender-affirming healthcare for her transgender son, Reid, through their family health insurance plan, coverage was denied. Tovar challenged the insurance plan’s exclusion of medically necessary care for her son and the court stated that the Health Care Rights Law itself (i.e., Section 1557 of the Affordable Care Act) clearly prohibits discrimination against transgender people in accessing health care.
The list of federal court decisions affirming that trans people are protected from discrimination in many settings is long and growing. Just this year courts have affirmed that trans students in schools are protected under Title IX (Adams v. School Board of St. Johns County), that trans employees cannot be fired for being transgender or transitioning (EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc.) that Medicaid exclusions of transition-related care violate the ACA (Flack v. Wisconsin Department of Health Services), and that the federal government cannot exclude transgender people from military service (Doe v. Trump, Stone v. Trump, Karnoski v. Trump).
These cases — along with dozens of others — affirm that transgender people are protected by federal civil rights laws.
What the Trump Administration Cannot Change
Like the fight for marriage equality, which began and gained momentum in cities and states across the nation, the fight for trans rights can thrive in spite of the federal government’s attempts to pretend it doesn’t exist. State and local governments can write and follow their own laws absent a controlling federal law. Even if the memo’s definition is written into regulations or rules, trans people will still be protected by the 262 cities and counties and the 20 states that prohibit gender identity discrimination in housing, employment, and public accommodations.
Even though this administration is trying to pretend that science doesn’t exist, the overwhelming consensus on trans youth and adults matters deeply. Nearly the entire medical community has issued statements regarding the proper medical treatment of transgender people, beginning with the American Medical Association in 2008. Since that time, the AMA has been joined by countless other U.S. medical groups, including the American Academy of Pediatrics, American Counseling Association, American Psychiatric Association, American Psychological Association, American Public Health Association, and the World Medical Association.
Significantly, corporate America has recognized that taking a public stand for equality in the form of protecting their trans employees with inclusive health care and anti-discrimination policies is good for business. HRC’s 2018 Corporate Equality Index (CEI) reports that a “full 82 percent of Fortune 500 companies have gender identity protections enumerated in their non-discrimination policies and 96 percent of the entire CEI universe of businesses offer explicit gender identity non-discrimination protections in the U.S.”
In addition, half of Fortune 500 companies offer inclusive health coverage for trans workers. Sixteen years ago, that number was zero.
And most importantly, this memo cannot and will not stop trans people from existing. Transgender and nonbinary people have fought for our very existence at every moment — for some of us, as long as we can remember. We have been disowned by our families, kicked out of our schools, sent to conversion therapy, been harassed by coworkers and supervisors, fired from jobs, refused life-saving medical care, and been profiled and jailed by police. We have survived more difficult circumstances than others could understand. So it’s hard not to pity these fearful and hateful government officials who think changing a definition is going to stop transgender people and those who love and support us from living long enough to make them regret it.
Even if the memo is used in the destructive ways it could be, this will be a costly decision for the GOP — one we will never let them forget.
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