The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, the New York Times reported today, calling it the most drastic move yet in a government-wide effort to roll back recognition and protections of transgender people under federal civil rights law.
The Department of Health and Human Services is leading an effort to establish a legal definition of sex under Title IX, the federal law that bans gender discrimination in education programs that receive government financial assistance, the Times said, according to an unreleased Trump administration memo it had obtained.
The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with. Any dispute about one’s sex would have to be clarified using genetic testing.
The new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves — surgically or otherwise — as a gender other than the one they were born into.
“Won’t be erased”
Not surprisingly, reaction from the LGBTQ community to the news has been swift and angry. The community mobilized a fast and fierce campaign that included a protest outside of the White House on Monday to say transgender people cannot be expunged from society. The hashtag #WontBeErased has already become a rallying cry on social media.
“You saw such a massive response because this attack on the trans community is essentially trying to erase the trans community from the face of this country and we’re not going to stand for that,” Sarah Kate Ellis, the president and chief executive of GLAAD, a media advocacy group for LGBTQ people told the Times.
Out of sync with business
Business has also taken a strong stance in support of transgender rights that is out of sync with the Trump administration. The annual Corporate Equality Index shows a growing list of businesses with transgender-inclusive health insurance benefits. Businesses large and small have removed transgender exclusions from their health insurance contracts and modified clinical guidelines to provide health insurance coverage for mental health counseling, hormone therapy, medical visits, surgical procedures and other treatments related to gender transition or sex reassignment.
Some companies, like Procter & Gamble, have even featured transgender people prominently in their advertising campaigns, like an ad to focus on the importance of moms in the lives of children features a commercial based on the true story of a transgender woman who adopted a 6-year-old girl. Other companies, like Johnson & Johnson, have long embraced inclusive policies that made it clear they will recruit, embrace and welcome transgender employees.
Rollback of Obama administration policies
The Trump administration’s move continues its rollback of the Obama administration’s loosening of the legal concept of gender in federal programs, including in education and health care, recognizing gender largely as an individual’s choice and not determined by the sex assigned at birth. The policy led to intense controversy over bathrooms, dormitories, single-sex programs and other arenas where gender was once seen as a simple concept.
Conservatives were incensed. Roger Severino, now the director of the Office for Civil Rights at the Department of Health and Human Services, was among them, calling the Obama administration expansion of sex to include gender identity “radical gender ideology.”
“This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees,” Catherine E. Lhamon told the Times. She led the Education Department’s Office for Civil Rights in the Obama administration and helped write transgender guidance that is being undone.
Civil rights groups have been meeting with federal officials in recent weeks to argue against the proposed definition, the Times reported. Now that battle is likely to intensify. After more than a year of discussions, health and human services is preparing to formally present the new definition to the Justice Department before the end of the year, Trump administration officials say.
But Attorney General Jeff Sessions’ previous decisions on transgender protections give little hope to civil rights advocates. The new wording proposed regarding transgender people seems aligned with the position Session took in an October 2017 memo sent to agencies clarifying that the civil rights law that prohibits job discrimination does not cover “gender identity, per se.”
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