The Trump administration is reportedly weighing a federal definition of gender that would effectively erase the identities of 1.4 million transgender Americans.
A Sunday report from the New York Times claims the Department of Health and Human Services (HHS) is preparing to issue a memo defining gender as exclusive to the genitalia an individual is born with. Gender will be determined “on a biological basis that is clear, grounded in science, objective and administrable,” it states.
According to the administration, any questions about an individual’s gender can be cleared up with a DNA test.
HHS is reportedly set to issue its guidance to the Department of Justice before the end of the calendar year. Should the two government agencies agree on the language, it will also be rolled out to the Departments of Education and Labor.
The most direct impact of the memo will be on Title IX. Signed into law in 1972, it forbids discrimination “on the basis of sex” in “any education program or activity receiving federal financial assistance” by ensuring equal access in U.S. education. It has been used, for instance, to forbid universities from denying admission to women.
The Obama administration announced in 2014 it would expand its understanding of “sex” under Title IX to include “gender identity,” meaning anti-trans discrimination would also be prohibited.
The Trump White House has worked unilaterally to roll back that definition.
Just weeks after the president took office in January 2017, the Department of Education rolled back guidance from the Obama administration stating that trans students should be treated in accordance with their gender identity in schools. This included referring to transgender youth by the correct name and pronouns.
In August, the Education Department disbanded any investigation of anti-trans discrimination complaints in schools.
But LGBTQ advocates argued the alleged gender identity memo would go even further than the administration’s previous actions on trans equality. In a statement, Human Rights Campaign President Chad Griffin said the action would serve to “eviscerate enforcement of non-discrimination laws.”
“Defining ‘sex’ in this narrow language tailored to the talking points of anti-equality extremists is part of a deliberate strategy to eliminate federal protections for LGBTQ people,” Griffin claimed.
“This is a direct attack on the fundamental equality of LGBTQ people,” he added.
Mara Keisling, the executive director for the National Center for Trans Equality, also felt the memo’s impact stands to be sweeping. She claimed that its enforcement could jeopardize “equal access to health care, to housing, to education, [and] to fair treatment under the law.”
However, Keisling noted the guidance — while harmful — cannot eradicate the significant progress trans advocates have made in all areas of public life.
“It would not eliminate the precedents set by dozens of federal courts over the last two decades affirming the full rights and identities of transgender people,” she said in a press release. “It would not undo the consensus of the medical providers and scientists across the globe who see transgender people, know transgender people, and urge everyone to accept us for who we are.”
“And no rule — no administration — can erase the experiences of transgender people and our families,” Keisling continued. “While foolish, this proposed rule deflates itself in the face of the facts, and the facts don’t care how the Trump administration feels.”
The Trump administration has yet to comment on the veracity of the New York Times report.
The story was released just hours after a separate report, published by BuzzFeed, claimed the Labor Department is weighing policies that would give greater license to contractors who wish to discriminate on the basis of faith. It would allow the government to offer federal dollars to organizations that refuse to hire LGBTQ people.