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.
I cannot believe this is real.
i’ve been waiting for this and it’s still fucking me up. so. bad. thank you for laying out some of the facts, now i can go back to trying to block the news out of my poor li’l fragile trans head
I stumbled across this headline when I unsuspectingly opened up the nyt website today and I am FURIOUS.
To whom it may concern:
You are loved.
Feel the warmest most cushiony embrace (just imagine I’m wearing micro fleece) and the sturdiest bear hug.
And know that you’re loved.
I am furious and I know I’m not the only one.
I know there are dykes and queers and nonbis and baby tomboys and whatever the kids call themselves these days, who love you deeply,too.
We are of one blood, ye and I.
And look, I really, really don’t want to tell you Americans what to do, but I am going to right now anyway:
You have elections coming up in two fucking weeks so get the fuck on it. I don’t care if you rent a fricking school bus and drive it yourself same self into an old people’s home to drag everyone and their incontinence diaper to the polls, if you chat up random strangers at the cash register, but this is the only damn chance you have to protect your brethren, the most vulnerable amongst us, so get on it.
Every one of you who reads this. Do something, whatever it is.
One of the many sad things is that people are trying to do just that but voters are still blocked from making it to the polls:
https://www.huffingtonpost.com/entry/black-voters-matter-bus-georgia_us_5bc76a27e4b055bc947ce32b
Each headline brings me closer and closer to a big trans pride neck tattoo, just to rub it in.
-An enby who’s not going anywhere
I’m a transwoman. I’m not out yet. Haven’t started HRT therapy yet. Have been wanting to come out.
But stuff like this just makes me what to crawl in a hole and hide away. It’s just so awful. It makes me angry, sad, and scared. I’m still going to come out. I can think of more powerful thing to be myself in this country that says I shouldn’t.
love and support and community and hope and fighting and on and on and on. as my trans sibling i love and hear and believe in you, and no matter how much they bring us down we’ll keep raising each other up. you are so brave and beautiful and i can’t wait for you to get to show that to the world.
Thank you for kind words. We are powerful for living.
I was journaling out all my thoughts & feelings on this news earlier, and I decided that even before I start my transition I want to help fight and stand up.
I’m in a similar situation: trans, not out, haven’t started HRT (though my hormones are literally on the desk in front of me right now, I want to bank sperm before starting them). But this horrible news makes me feel the opposite. Every second we spend hiding is a second that the evil people in the world win. I’m lucky enough to be a student at a university that forbids discrimination on the basis of gender identity or expression, so I might just wear a dress to class on Tuesday and see what shakes out.
Best wishes on going to bank some gametes! My wife did before transitioning. She’s happy she did, though wishes she had banked more.
If you do wear a dress, you’re going to rock it!
Ps Is your name a Doctor Who reference?
Aw, thanks! It’s getting a little cool this time of year for any of the feminine clothing I own, but I’m planning on going to some thrift stores tomorrow, so hopefully I’ll find some nice warmer clothes then.
As for your question about my name, [TW: strong religious statement] heck no, Moffat’s a hack! If I had wanted a Doctor Who reference for a name, I would’ve definitely gone for Donna. [/TW] I mostly just like the name Clara; plus it sounds kinda like my given name, which I was always fond of.
Well Clara is a lovely name. I sort agree with you that Moffat is a hack. I have soured on his work a lot. But there are a few DW episodes he wrote that I love.
Hope you find something fun and comfy at the thrift store!
Sarah, and to any other trans sister reading this,
I admire your strength and determination. Know that you are not alone. Remember to take care of yourself. Even if this change takes effect there will be hopefully be legal challenges, and the fact that der Führer has been blocked in his efforts to ban us from the military is a sign of hope. This kind of thing has been done by oppressive regimes before with different minorities. Hate never sleeps, but it is love that gives life strength and meaning. And I wish you much love sister, overflowing in abundance, wrapping you and all of us in its healing power and filling us with the strength to stand against this storm.
Your sister,
Emily
Thank you Emily. ❤️
This is bad. Like pack up and leave everything you’ve ever known and start over in a new country level bad. And that’s for those of us lucky enough to have the resources to leave. As a trans person I appreciate the emotional support out on social media, but the reality is that knowing that you are loved is a cold comfort when your government turns against you, and you will never be safe at home again.
I’ve been completely exhausted for like three years now.
Maybe it’s the combination of a lot of rough things in my life right now, but this news broke me. I’ve been crying about it since I first read about it.
I’m a cis woman, and this makes me so afraid for every trans person in this country. And every other group who is marginalized by this horrible presidency.
To echo what amidola said, to any trans person reading this: You are valid and you are loved. Nothing about this news is okay and you are backed up by people who fight for you.
Well, fuck. Not giving up without a fight.
I’m so sorry. I’m so angry. I’m here.
I read it this morning and it completely broke me.
I am thankful I see my therapist tomorrow, but….
I know that merely by existing and being alive is an act of resistance but on days like this………I feel defeated. I have no fight left in me.
Not that it would have changed anything but before I came out as a trans woman I wish somebody would have told me that just existing is draining as hell every day and I’m not emotionally equipped to handle it.
I’m so angry I feel literally sick. Fuck these people. Fuck them SO VERY MUCH.
These people always say lgbt folks shouldn’t force their “lifestyle” on others. Yet they have no problem forcing their own lifestyle and beliefs on others too. It’s just the height of being brainwashed.
How have trans people affected or harmed anybody? What is their business with how people choose to identify or what people choose to do with their own bodies? This is just so sad to read and i am just so scared that it’s not going to get any better at all. Trump has really empowered the country to be evil and backward.
Sending love to everyone affected by this. You matter so much to the world.
I wrote an angry rather accusatory little poem I hope I’ll not have to scratch in to the wall of some dismal little room 101 before I die or something.
That’s how my (dramatic) brain decided to process this eventual step into…let’s see kleptocratic fascist plutocracy seems to just about cover it or is that total word salad. Authoritarianism is too loose a term and fascism does so love strict gender roles.
Y’all best go out and vote but if you don’t think the democratic process is going to work build a base, a real base of support in the general populace before making any movements or you’ll just be butcher’s meat.
Dear People,
Even if this becomes worse, and I do believe the full intent is not just to eliminate us trans folks but the entire LGBTQ community, there are ways to stand up. Oppression is not new, it has just become bolder and removed it’s cloak. The hate has always been there. Now it is making its play, like Sauron spreading his darkness over Middle Earth. But other people have been through oppression and resisted. I think of the Spanish guerrillas during the Napoleon’s occupation of Spain, the Abolitionists and the Underground Railroad in America during slavery, the Suffragette movement in America and the UK, the Resistance fighters in Nazi-occupied Europe, Gandhi and India, the fight for Civil Rights here in America, the rise of feminism and the fight for women’s rights, and Compton’s Cafeteria and Stonewall and the first fight for liberation. In all these fights, those who stood against oppression were considered as fighting for a hopeless cause. Nevertheless they persisted. And ultimately they succeeded.
We may be in for darker times and a long and bitter fight, but at least for now we still have a vote. Even if ultimately we have to go into hiding in order to survive and continue fighting, we only lose if we give up and yield. As long as one of us is still speaking, writing, talking to others, then the resistance is alive and we are not silenced, and there is hope.
“You never know how strong you can be until strong is the only choice you have” ~ Anonymous
Emily
Trans enby here working in a local government. I’m thankful that my job is supportive, but I’m completely wrecked by this. I’m frustrated. Tired. Every day feels like a waking nightmare. I try to avoid the news as much as possible to stay sane but the news doesn’t avoid me. The world seems like it’s changing, turning into some kind of angry caricature of everything that I ever detested from the place of my birth.
Other than my irrational fear… There are so many things that are influenced by Federal regulations and laws. I’m worried for what this means for Federally funded programs that provide services to at risk populations.. how this cascades.
I hate this administration…
I wonder what will happen in states like California where discrimination is against state law?
This song resinates with me as a trans woman-ish person.
G.L.O.S.S. – Lined Lips Spiked Bats:
They wanted me to be a man
They wanted me to become one of them
Straight and repressed, emotions grotesque
Ready for war and the cubicle desk
Straight america, you won’t ruin me
Sports and TV indoctrinate the kids
Seems so simple, cause it is
They told us to die, we chose to live
They told us to die, we chose to live
Straight america, you won’t ruin me
Sick american dream
Combating the crap, bad girls have each others backs
Lined lips, spiked bats, gotta take femininity back
Combating the crap, bad girls have each others backs
Lined lips, spiked bats! Die!
Thanks for posting a little bit of empowerment on this shit day. I wish I had a spiked bat now.
so what you’re saying is that maybe IT’S OUR TURN TO GIVE VIOLENCE A CHANCE
I’ve been crying off and on all day. I’m genderqueer and exhausted by this news. Trans people, you have my love and support. I will fight for you and anyone else that doesn’t identify as cisgender. I’m here if anyone needs to talk.
Sending you a hug. And I think I have been too shocked by the open cruelty to cry yet. Still hurt. But I am open to talking about it.
I’ve always had a vivid imagination and a penchant for daydreaming. Since the 2016 election, I’ve had a recurring daymare (is that even a thing?) where I am playing as Mario in Super Mario 64 and in charge of a small child or animal. Upon thinking of the election results, Mario faints making a distressing sound and the child/animal is alone and I failed them.
Sorry for the somewhat random comment, but I figured I’d share with you all how my brain copes with trauma we are going through.
This is how you work using fear as a tool and this is also a gigantic test for our community.
This is how I see it: you take a minority within another minority and attack them. You attack their rights and wait and see how the rest of the community will react. You have two choices: “maybe they will come for my rights next” and you decide to fight against that or “maybe they will come for my rights next” and decide to sacrifice the Trans community and hope for the better.
Well, the second choice is the coward’s way out and clearly the worst decision we could make. This is not a time to hide and run.
IT’S TIME TO FIGHT WITH EVERYTHING YOU GOT: voting, suing the fucking federal government (How the fuck could be legal to forced DNA tests?), taking the streets.
DEFEND YOUR TRANS SISTERS AND BROTHERS WITH EVERYTHING YOU GOT BECAUSE SOONER OR LATER THEY WILL COME FOR YOU.
P.D.: I have a weird question. If your Federal Government attacks your rights, even your most basic right to exist, is this why the 2nd Amendment to the United States Constitution is in place?
Well this is some absolute shit. Fuck this.
On a lighter note, the thumbnail image for this article is of a trans advocacy group in my town! They are rad as hell folk!
Thank you for your reporting, Rachel.
Trans people, we are a blazing, roiling eruption that cannot be turned back. We are shifting what seems immovable. We are bulging, mutating and splitting open at the seams what it means to be human. What we are giving this world, in the face of its ghastly ingratitude, is a gift.
We are already here. We are heating up in vast underground chambers and finding ways to seep upwards toward the bedrock. There are so many more who will come after us. They will be more beautiful, weirder and more radiant than we can imagine.
Trans people, I see you. I see you shining with sweat on the dance floor. I see you linking arms against riot cops at the protest. I see you cupping your hands around candles at the vigils. I see your live video feeds and your selfies and your memes. I see your faces tired and exhausted. So tired, and so exhausted. All of it is a gift.
Your beauty is incandescent beyond measure.
Wow. Thanks for making me cry today:’)
I wonder what would happen if I told the IRS that since I no long exist to not expect me to pay taxes?
This pains me deeply
what about intersex people, those born with ill defined genitalia or genetic abnormalities like Klienfelter’s Syndrome?
What then?
What is Transgender other than a complete intersex condition in which the brain and genitalia are formed with opposing gender traits.
So what then eh?
Saw this on tumblr and I think it’s relevant as trans people are just the beginning.
Hey! I put together a letter to the head of the Department of Health and Human Services and if you’d like to sign here’s the link:
https://www.change.org/p/alex-azar-keep-transgender-people-in-title-ix
Thanks!
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