This morning, the New York Times broke the story that the Department of Health and Human Services under the Trump administration is “[considering] defining transgender out of existence” — specifically, enshrining a definition of gender within the federal government that ties it immutably to sex as assigned at birth (as documented by a birth certificate “as originally issued”), with no recognition of an individual’s self-determined gender later in life.
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, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.
The NYT appears to have drawn this information from a memo circulating within the DHHS, which argues for these changes but does not make them official. It isn’t confirmed that the Department will go forward with this; even if they do, the Departments of Education, Justice, Health and Human Services, and Labor would also have to accept this definition for it to be uniformly applied in higher-up government policy. In terms of legal understandings of trans identity in the courts, the Department of Justice is the most important factor; although it is technically possible that the DOJ could part ways on the issue, the department’s history on trans issues under Jeff Sessions leaves little hope for that possibility. The issue is expected to be presented to the DOJ by the end of the year.
There’s little to draw on as far as legal precedent to understand the specifics of how this would work; it’s unusual to say the least for a government agency to “define” such a fundamental cultural concept out of nowhere. Although the Obama administration issued guidance on legal interpretations for courts regarding sex and gender, they generally functioned as guidance, not commandments. In recent legal memory, previous to the repeal of DOMA the federal government did have a definition of marriage as “between one man and one woman,” it was tied into a specific law, the Defense of Marriage Act, passed by conference. Like so much of what the Trump administration has done, this move appears to be an attempt to circumvent Congress and the courts and force through a bigoted agenda. Also like so much of what the Trump administration has done, it’s so unexpected and confusing that it’s hard to say how specifically it will play out.
If adopted, this definition is likely to kneecap legal battles concerning use of public accommodations for trans people — a trans child suing to be able to use the bathrooms appropriate to her gender would have her case shut down, because the federal government would refuse to see her as anything but a cis male child. CNBC says that “The move would essentially exclude the transgender population from civil rights protections, and rolls back Obama administration policies that relaxed the legal concept of sex in federal programs, recognizing it largely as a person’s choice.” It’s not clear exactly what would happen for trans people who have already changed their gender marker on official government documentation, or would like to in the future, but the odds are not good. Where previously trans people have often had to supply tedious and costly amounts of ‘evidence,’ including notes from doctors, surgeons and therapists, to testify to the reality of their gender, the Trump administration could now refute all of that with “genetic testing” — a limited medical concept that also presents frustrating challenges and erasure for intersex people.
In addition to the formidable legal hurdles this change would represent for trans people trying to live safely in the US, it’s indicative of a deeply troubling cultural campaign on the part of the Trump administration to try to simply wish trans identities out of existence. Almost a year ago, the Trump administration was reportedly prohibiting the CDC from even using a list of words associated with scientific issues they seemingly consider left-leaning — “transgender” was one. The administration also removed information for and about LGBTQ families from their website. The director of the Office for Civil Rights at the Department of Health and Human Services, Roger Severino, was previously the head of the DeVos Center for Religion and Civil Society at the Heritage Foundation, and has called Obama-era legal memos that supported inclusion of gender identity in Title IX “radical gender ideology.”
In the weeks and months to come it will be clearer what the future of this policy push will look like — and as with other attempts by this administration, lawyers, local politicians and community members will organize to figure out what can be done. In the meantime, we can continue standing up vulnerable community members and providing access to resources and safety, and looking for opportunities to materially support the people who need it most.