Trump Administration Floats Policies That Would Limit Civil Rights of Transgender Americans

A memo reported on by the New York Times presages a federal government that may recognize only binary gender at birth and that excludes trans individuals from some civil rights protections.

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Over the course of the Obama administration, several government policies or legal interpretations were put into place that resulted in explicit civil rights protections for transgender individuals. For example, on 13 May 2016 the Department of Education’s Civil Rights office released a “Dear Colleague Letter on Transgender Students” stipulating that Title IX of the Education Amendments of 1972 (which prohibits sex discrimination at institutions of higher education that receive federal financial aid) also applied to discrimination based on gender identity:

Title IX of the Education Amendments of 1972 (Title IX) and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of Federal financial assistance. This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.

Along with similar rules articulated by the Department of Health and Human Services (HHS) with respect to Obamacare, such recognition represented the final stage in the evolution of how the federal government recognized transgender civil rights during the Obama administration. In a broad sense, the Obama-era stance was that Title IX (and also Title VII of the Civil Rights Act) applied to gender identity, not necessarily only biologically-defined sex. But the Trump administration rescinded the Dear Colleague letter in February 2017.

In May 2016, prior to Donald Trump’s presidency, Roger Severino — then the “director of the DeVos Center for Religion and Civil Society at The Heritage Foundation” — argued in a Daily Signal piece that the Obama-era changes represented a “radical gender ideology.” Now, as part of Trump’s administration, Severino is head of the Health and Human Services Civil Rights Office overseeing how the Federal government interprets those same policies.

In a 21 October 2018 article, the New York Times described HHS as “spearheading an effort to establish a legal definition of sex under Title IX.” According to a memo described (but not published) by the Times, the HSS (in coordination with other departments) effectively planned to reverse Obama-era moves by explicitly defining gender as binary and determined at birth:

The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.” 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.

This memo, the Times reported, came in advance of two proposed rules, one from HHS and one from the Department of Education, that the federal government planned on releasing for public comment in the fall of 2018.

The memo’s contents were met with immediate condemnation by many LGBTQ and human rights groups, who feared that the aim of a strict definition of gender was to define transgender individuals out of existence. Widespread protests followed the Times reporting, and the hashtag “#WontBeErased” began trending on Twitter as demonstrations took place around the U.S.

Such a rule could limit the ability of transgender individuals to claim discrimination based on gender identity, and could exclude them from civil rights protections they had been afforded under President Obama:

This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees,” said Catherine E. Lhamon, who led the Education Department’s Office for Civil Rights in the Obama administration and helped write transgender guidance that is being undone.

The move would be the most significant of a series of maneuvers, large and small, to exclude the population from civil rights protections and roll back the Obama administration’s more fluid recognition of gender identity. The Trump administration has sought to bar transgender people from serving in the military and has legally challenged civil rights protections for the group embedded in the nation’s health care law.

Recent estimates suggest that between 1 million and 1.4 million people identify as transgender in the United States, and several critics have noted the scientific untenability of the ideas floated in the memo with regard to genetic testing to determine gender. Such testing does not always produce accurate results and cannot account for certain cases of intersex individuals whose chromosomally-determined gender does not match their physical manifestations of gender. A commentary piece in the Journal of the American Medical Association articulated these issues in the context of testing athletes for gender in 2000:

Gender verification has long been criticized by geneticists, endocrinologists, and others in the medical community. One major problem was unfairly excluding women who had a birth defect involving gonads and external genitalia (i.e., male pseudohermaphroditism). Male pseudohermaphroditism is defined as genetic males (Y chromosome) whose external genitalia fail to develop—the genitalia may be ambiguous or resemble female genitalia. Many different forms of male pseudohermaphroditism exist … Follow-up was crucial [in cases where females “failed” a gender verification test] because the problem was not male impostors, but rather confusion caused by misunderstanding of male pseudohermaphroditism.

In other words, the science that the federal government has floated as a way to enforce binary gender determinations is not actually rooted in a good faith understanding of that science, and it still cannot account for the biological reality that gender is at times ambiguous even when using the scientific tests they advocate for.

In terms of its potential effect on the civil rights claims of trans individuals, the HHS memo was similar to a 4 October 2017 Department of Justice memo from Attorney General Jeff Sessions titled “Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964.” In that latter memo, Sessions made explicit that his Department of Justice did not consider gender identity to be protected as a basis for employment discrimination under the 1964 Civil Rights act:

Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se. This is a conclusion of law, not policy … Title VII expressly prohibits discrimination “because of … sex” and several other· protected traits, but it does not refer to gender identity. “Sex” is ordinarily defined to mean biologically male or female.

Former U.S. Attorney General Eric Holder had released a Justice Department memo in 2014 directing all offices “that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.” Title VII of the Civil Rights act prohibits employment discrimination based on “race, color, religion, sex, or national origin,” “age”, and disability status. Sessions’ memo reversed the Obama-era interpretation of “sex”.

Human Rights Watch has called on Congress to pass legislation that makes explicit the civil rights of trans people assumed under the Obama administration:

Without delay, Congress should pass the Equality Act, which would amend federal legislation including the Civil Rights Act, Title VII, Title IX, and the Affordable Care Act to explicitly provide protection against discrimination on the basis of “sex” to explicitly include “sexual orientation and gender identity.” This would clarify for the courts and for all federal agencies that all Americans – including transgender people — have equal access to employment, education, health care, and other essential services.

The new rules from HHS and the Department of Education, yet to be released officially, will likely be challenged in court if they are implemented.

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Sources

U.S. Department of Education.   “Dear Colleague Letter on Transgender Students.”
    13 May 2016.

Anderson, Ryan T. and Roger Severino.   “3 Ways Conservative Lawmakers Should Fight Obama’s Bathroom Directive.”
    The Daily Signal.   23 May 2016.

Green, Erica L. et al.   “‘Transgender’ Could Be Defined Out of Existence Under Trump Administration.”
    The New York Times.   21 October 2018.

Mervosh, Sarah and Christine Hauser.   “Transgender People and Allies Protest Trump Plan at Rallies and on Social Media.”
    The New York Times.   22 October 2018.

Meerwijk, Esther L. and Jae M. Sevelius.   “Transgender Population Size in the United States: S Meta-Regression of Population-Based Probability Samples.”
    American Journal of Public Health.   February 2017.

Flores, Andrew R. et al.   “How Many Adults Identify as Transgender in the United States.”
    The Williams Institute.   June 2016.

Simpson, Joe Leigh et al.   “Gender Verification in the Olympics.”
    JAMA.   27 September 2000.

U.S. Department of Justice.   “Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964.”
    4 October 2017.

U.S. Department of Justice.   “Attorney General Holder Directs Department to Include Gender Identity Under Sex Discrimination Employment Claims.”
    18 December 2014.

Legal Information Institute.   “2 U.S. Code § 1311 – Rights and protections under title VII of Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, Rehabilitation Act of 1973, and Title I of Americans with Disabilities Act of 1990.”
    Accessed 22 October 2018.