Transgender advocates were vocal in their indignation Sunday over a report in the New York Times about a sweeping anti-transgender plan within the Trump administration to limit the definition of “sex” in U.S. government policies to biological gender.
According to the New York Times, the Department of Health & Human Services is set to spearhead the initiative with the proposed rule that has been drafted and circulating since last spring and will be presented to the Justice Department by the end of the year. In the words of the New York Times, the proposal would amount to “defining transgender out of existence.”
Stan Sloan, CEO of the pro-LGBT Family Equality Council, said in a statement the proposed rule is “a cruel, unnecessary attack on transgender Americans and their families that flies in the face of science, medical best practices and the law.”
“LGBTQ people and their families deserve to be protected from discrimination, yet this administration is signaling once again that it prioritizes extremist, religious anti-LGBTQ dogma over ensuring equal protection for all Americans under the law,” Sloan said.
According to the Times, the proposal asserts Title IX of the Education Amendments of 1972, which bars sex discrimination in schools, doesn’t apply to transgender people and calls for government agencies to adopt an explicit and uniform definition of sex “on a biological basis that is clear, grounded in science, objective and administrable.”
The New York Times reports the proposed definition would define sex as either male or female, immutable and determined by an individual’s genitals at the time of birth. A dispute about one’s sex, the New York Times reports, would have to be clarified using genetic testing.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the memo reportedly says. “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.”
Such a move would be consistent with other anti-transgender actions within the Trump administration, such as the transgender military ban, reversal of Obama-era guidance requiring schools to allow transgender kids to use the restroom consistent with their gender identity and the legal position federal civil rights against sex discrimination in the workforce don’t apply to LGBT people.
Chad Griffin, president of the Human Rights Campaign, said in a statement the proposal would be “setting a destructive precedent” for transgender people and would congressional action in response.
“Defining ‘sex’ in this narrow language tailored to the talking points of anti-equality extremists is part of a deliberate strategy to eliminate federal protections for LGBTQ people,” Griffin said. This is a direct attack on the fundamental equality of LGBTQ people and, if this administration refuses to reverse course, Congress must immediately take action by advancing the Equality Act to ensure that LGBTQ people are explicitly protected by our nation’s civil rights laws.”
The New York Times reports Roger Severino, the director of the Office for Civil Rights at the Department of Health & Human Services, didn’t respond to questions on the proposal, although other officials at HHS confirmed a push to limit the reading of civil rights laws to exclude transgender discrimination.
Severino came to the HHS last year after working as a scholar at the anti-LGBT Heritage Foundation, where he promulgated anti-trans ideas, including support for North Carolina’s anti-trans bathroom law House Bill 2.
The New York Times reports HHS called on the “Big Four” departments within the executive branch — the Departments of Education, Justice, Health & Human Services and Labor — to adopt the restrictive definition of sex in their enforcement of Title IX.
That definition of sex discrimination would impact federal initiatives down the road. According to the New York Times, they include a proposed rule at the Education Department on complaints of sex discrimination at schools and colleges receiving federal assistance and a proposed rule from HHS on health programs and activities that also receive federal assistance. Both regulations are expected to be made public this fall and would then be open for public comment, the New York Times reports.
According to the New York Times, civil rights groups have been meeting with federal officials in recent weeks to argue against the proposed anti-trans definition of sex. Some U.S. officials, the New York Times reports, are hopeful the extreme parts will be reined in, such as the requirement for genetic testing.
Mara Keisling, executive director for the National Center for Transgender Equality, said in a statement the proposal would have a disastrous impact on millions of transgender Americans.
“This proposal is an attempt to put heartless restraints on the lives of 2 million people, effectively abandoning our right to equal access to health care, to housing, to education or to fair treatment under the law,” Keisling said. “This administration is willing to disregard the established medical and legal view of our rights and ourselves to solidify an archaic, dogmatic and frightening view of the world. This transparent political attack will not succeed administratively, legally or morally.”
Keisling added despite the interpretation of the law within the Trump administration, the consensus among the courts is transgender people are included in civil rights law and the medical community has recognized the need for transition-related care.
“To transgender people: I know you are frightened,” Keilsing added. “I know you are horrified to see your existence treated in such an inhumane and flippant manner. What this administration is trying to do is an abomination, a reckless attack on your life and mine. But this administration is also staffed by inexperienced amateurs overplaying their hand by taking extreme positions that ignore law, medicine and basic human decency.”
For some time, a proposed rule has been expected from the Trump administration reversing the Obama administration’s interpretation of Section 1557 in the Affordable Care Act, which bars sex discrimination in health care, to include transgender people. It wasn’t immediately clear based on the New York Times article whether the reported proposal was that initiative, although the reported proposal seems considerably broader.
An HHS spokesperson told the Washington Blade over the weekend the department has no comment based on the New York Times article based a policy over not commenting on alleged leaked documents.
The proposal appears to be based on a decision from U.S. District Judge Reed O’Connor in Texas against the Obama-era rule affirming transgender protections in Obamacare. That decision and the nationwide injunction against the policy — which stands in contrast to many court decisions affirming transgender rights under federal law — still stands as a result of the Justice Department under U.S. Attorney General Jeff Sessions refusing to appeal the ruling.
Severino, in a statement to the Blade responding to the New York Times article, referenced that decision from O’Connor and the nationwide injunction as he asserted the issue remains under consideration at HHS.
“A federal court has blocked HHS’s rule on gender identity and termination of pregnancy as contrary to law and infringing the rights of healthcare providers across the country,” Severino said. “The court order remains in full force and effect today and HHS is abiding by it as we continue to review the issue.”
Laura Durso, vice president of the LGBT Research & Communications Project at the Center for American Progress, said in a statement the HHS proposal could contribute to violence and harassment of transgender people.
“While guidance is historically used to ensure agency practices are in line with the law, the Trump-Pence administration is using guidance to instruct agencies to ignore the consensus of courts around the country and decades of progress on civil rights protections,” Durso said. “This denigration of the transgender community signals to federal contractors and grantees that they can contribute to the harassment and violence transgender people regularly experience—and the administration will turn a blind eye.”