By Brandi Buchman/Courthouse News
WASHINGTON (CN) – The Trump administration is considering a new rule which would narrow the definition of gender, a move which could effectively strip 1.4 million transgender people in the United States of civil rights they only recently began to enjoy.
According to an internal agency memo obtained by The New York Times, the Department of Health and Human Services is considering a new definition of gender rooted in a “biological basis that is clear, grounded in science, objective and administrable.”
A person’s gender would be based on the genitals they were born with and their birth certificate would “constitute definitive proof” of their sex unless “reliable genetic evidence” could refute that, the New York Times reported Saturday.
It is unclear how such genetic testing would be conducted or if it would be constitutional.
The president commented on the possible redefinition before boarding Marine One today, according to the White House travel pool.
“We’re looking at it. We have a lot of different concepts right now. They have a lot of different things happening with respect to transgender right now. You know that as well a I do, and we’re looking at it very seriously,” Trump said Monday.
When asked if he would uphold earlier promise he made to protect the LGBT community, Trump responded: “I’m protecting everybody. You know what I’m doing? I’m protecting everybody. I want to protect our country.”
Caitlin Oakley, a spokesperson for the Health and Human Services Department, said in a statement “We do not comment on alleged, leaked documents that purport to indicate the status of deliberations or the focus of the department.
“The Obama administration’s broad definition of ‘sex’ was enjoined by a federal court on a nationwide basis in December 2016 and the Obama administration did not appeal,” Oakley continued. “That court found that the Obama administration regulation was overbroad and inconsistent with the text of the 1972 Title IX law prohibiting discrimination on the basis of sex.
“The court order remains in full force and effect today and HHS is bound by it as we continue to review the issue,” Oakley said. “Everyone deserves to be treated with respect and HHS’s Office for Civil Rights will continue to vigorously enforce all laws as written and passed by Congress, prohibiting discrimination in healthcare on the basis of race, color, religion, national origin, sex, age, and disability.”
The Justice Department did not immediately respond to request for comment Monday.
Kris Hayashi, executive director for the Transgender Law Center of California, called reports of the department’s proposed rule a “violent attack on the rights of transgender and gender non-conforming communities” which, if enforced, bars members of that community from access to comprehensive health care and education.
Hayashi described the move as the Trump administration’s “hate-motivated response” to legal victories won by the transgender community in recent years such as that of Ashton Whitaker.
Whitaker, a student who was born female but began to more strongly identify as male in middle school, sued the Kenosha Unified School District in Wisconsin in 2016 for civil rights violations under Title IX.
Title IX are rules which prohibit gender discrimination within any educational programs which receive government funding.
Whitaker claimed the school banned him from boy’s restrooms, surveilled his bathroom use and isolated him from other students, at one point, forcing him to room alone during a weeklong school trip.
Whitaker eventually settled with the school after the Seventh Circuit ruled in May 2017 that transgender students are protected from discrimination by both Title IX and the U.S. Constitution.
During the administration of former President Barack Obama, legal language around the concept of gender was expanded under Title IX protections. Gender was recognized as an individual choice, not something determined at birth.
The move to establish a restrictive legal definition of gender is the latest in a long series of regulatory rollbacks launched by the Trump administration against the transgender community.
In May, the Justice Department ordered the federal Bureau of Prisons to strike language from its manuals which considered housing inmates by gender identity “when appropriate” to “appropriate only in rare cases.”
“Biological sex,” the department instructed the bureau, would be used as the primary factor to decide where inmates would be housed or which bathrooms they could use.
Last July, the administration also attempted to ban transgender individuals from serving in the military.
In 2016, the Obama administration announced plans to direct U.S. armed services to accept transgender recruits, but before the policy could be enforced, the Trump White House abruptly reversed course.
Trump cited “tremendous” medical costs for transgender troops and because of this, deemed their service a “disruption.”
The policy – which was first announced via a presidential tweet – was met with immediate blowback by civil and human rights groups in court. Ultimately, the ban was blocked.
Hayashi says the latest move by the Health Department is a fool-hardy attempt by the administration to “erase” the existence of transgender people.
“To be clear: nothing this administration can do will undermine the scores of federal courts that have recognized our humanity and hundreds of state and local legal protections we’ve already won,” Hayashi said.
Bruce Hausknecht, a judicial analyst for Focus on the Family, a Christian conservative organization, said, “The New York Times story mentions only a draft definition from HHS that might go to the Department of Justice soon, and as such is difficult to understand the entire context.
“With regard to the Title IX education amendments from 1972, the word ‘sex’ was always intended to mean biological sex, and the statute does not include the word ‘gender, at all,” Hausknecht said. “It is already the position of the Trump Administration’s Departments of Justice and Education that the reference to “sex” in Title IX does not apply to gender identity.”
“Therefore this rumored action is consistent with previous actions by this administration, and not a great leap at all in Title IX’s application or definitions,” he added.
On a conference call Monday, Chase Strangio, a staff attorney for the American Civil Liberties Union stressed that while headlines over the weekend were “painfully alarming” for those in the trans community, “nothing has been done, nothing has been finalized” around the definition yet, he said.
If the memo turns into an issued proposal, then it is likely to face several legal challenges.
“Systemic attacks on transgender people at a federal and state level have occurred for years. That is a reality whether people like to accept it or not,” Strangio said. “This latest effort … is about restricting existing civil rights laws as they apply to the broader transgender community.”
According to research compiled by the Web Integrity Project, an offshoot of the nonprofit open government organization, Sunlight Foundation, a push by the Health Department to alter language online about transgender sex discrimination rights has already been underway.
The Health Department’s Office for Civil Rights removed online language found in Section 1557, a provision of the Affordable Care Act which bars discrimination and sex discrimination, the foundation reported.
Specifically, original text defining discrimination on the basis of gender identity was deleted as well as a sentence plainly stating that the provision “prohibits discrimination against transgender individuals.”
Strangio said this was a strategy by the administration to build up needed momentum for a proposed regulatory change.
Without a notice and comment period, Strangio said, the online changes have no legal impact on the transgender community.
“They can change [the language] all the want. The federal courts have been clear for years: sex discrimination includes transgender discrimination,” he said.