Trump Administration May End Legal Recognition For Transgenders
NEW YORK – October 22, 2018
The Trump administration plans to create a legal definition of gender as a fixed status determined biologically by the genitalia a person is born with, according to a Sunday report from The New York Times.
The paper said the Department of Health and Human Services is leading the effort to establish a legal definition of sex. The HHS believes that gender should be defined “on a biological basis that is clear, grounded in science, objective and administrable.” A person’s gender would be strictly male or female and it would be unchanging.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth… 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 definition would be implemented under the Title IX law, which bans discrimination based on sex in federally funded education programs, the Times reports.
The move is seen as a rollback on the gains of transgender people, who have seen advances in education, sports, rest room access, dormitories, government programs, and other areas.
Opponents of such a change also argued that the impact of the announcement would be blunted by existing law. The administration, they argued, does not have the authority to revoke rights that have been recognized several times in federal courts.
“Rescinding the guidance does not change the rights of students under Title IX [the federal law prohibiting sex discrimination in education and activities],” Chase Strangio, a staff attorney for the American Civil Liberties Union, wrote on Tuesday. “Trans students are protected from discrimination by federal law and the administration can’t change that.”
Former President Barack Obama’s administration argued that the 1972 Title IX law bars discrimination based on gender and sexual orientation. When the Department of Education issued a guidance in 2016 requiring schools to allow transgender students to use the restroom or locker room of their chosen gender, it invoked Title IX. That means schools that do not comply could risk losing federal funds.
The guidance infuriated conservatives, who decried the move as a clear case of federal overreach. The directive was rescinded one month after President Donald Trump took office in 2017.
Trump’s HHS department has argued that the term “sex” was never legally meant to include homosexuality and gender identity, the Times reports.
Roger Severino, the current director of the Office for Civil Rights at HHS, wrote several articles critical of Obama’s efforts to extend civil rights protections to transgender Americans. In 2016, Severino called the Education Department’s guidance on school bathrooms the “culmination of a series of unilateral, and frequently lawless, administration attempts to impose a new definition of what it means to be a man or a woman on the entire nation.”
Trump has also sought to bar transgender troops from serving in the military.
According to the Times, HHS officials plan to present the proposed change to the Department of Justice by the end of the year to assess the legality of the new definition.
Gay rights advocates decried the reported move to rigidly define gender.
The Human Rights Campaign, an LGBTQ civil rights organization, condemned the plan as the administration’s latest effort “to undermine the rights and welfare of LGBTQ people.”