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.

34 replies on “Trump administration seeks to roll back transgender rights”

  1. God you are amazing.

    They do not have anymore rights than anyone else. They have protections against discrimination. JUST LIKE EVERYONE ELSE.

    But, those rights had to be fought for, and earned, and litigated, like everyone else.


    1. Thanks Dino, I think I am amazing too. I am glad thst you have affirmed my beliefs. It is my belief thst transgendered individuals DO have more rights than the average citizen. For example, if I am in a store shopping and need to use the bathroom, I must use the men’s bathroom. However, if I am a transgendered individual I may use the woman’s bathroom, even though I have male genitalia. How is that not a special right that most citizens do not have.

      I guess if someone believes thst he/she is a dog, they can run around on all fours in a dog park and urinate as they please. I am sure that you and your cohorts would consider that acceptable also. As long as has he/she truly believes they are a dog.

  2. Why is it so hard to understand that just because you can’t discriminate against a group of people doesn’t mean they have more rights than you?

  3. You’re either a male or female, period. What kind of surgery you have to drill a hole or staple something on doesn’t matter. Psychological problems and choosing to “identify” as something you’re not doesn’t apply to any Constitutional “right”. Why is it so hard for some of you people to understand THAT?

  4. You guys are horrible.

    Seriously, you equated a human being gender identify to a dog. That is clear and obvious dehumanization. I mean literally.

    Call, there was a moment in time when african americans were not considered human, then not american, then not fully american, then american. That applies here. There is a moment when transgender people are not considered equal, then they are considered equal, but you still want to mock them. You will end up on the wrong side of history. More over, it is a dick move based on scarcity.

    1. Dino, a person can’t choose their race, as they are born with it. The same goes for sex. The genitalia you are born with determines your biological sex. The fact that you may put on a dress and dance around singing “I Feel Pretty” doesn’t make you Natalie Woods. Although I must admit I would pay $50.00 bucks to see that.

      No doubt that people who believe that they are a different sex than they are born with have issues that must be addressed, but granting them rights that are not guaranteed by the Constitution is not the way to address those issues.

      1. Jesus fucking Christ, you are willfully missing the point to keep going with your antiquated and wrong view of the world. They are human beings, and are asking for the same rights and fucking protections as human beings. They want protection from discrimination, should they not have that? What the fuck is wrong with you?

        No one gets extra rights, they want equal rights. Seriously. EQUAL. With your response, you want humans to have LESS rights than others.

        You are simply wrong. You are discriminatory.

      2. 3 things:

        1) I don’t remember covering bathroom rights in the Constitution in my Civics class. Refresh my memory, please.

        2) Hermaphrodites. Yes, Hermaphroditic individuals are rare but how does your ‘genital determination system’ account for ‘handling this situation’?

        3) Who should be be the ‘Genital Checker’ at all bathrooms in the US? Is that something that should be handled at the Federal, State or Local level of government?

    2. You’re born either male or female, P-E-R-I-O-D. You can call me whatever freaking name you want, Dino. I truly do NOT care. Bringing African Americans into this discussion is about as “Enk” as you can get. Congrats.

      1. No it is not. I can demonstrate that it is not. Not that it will matter.

        The issue here is not giving someone special priviledges, it is about giving people equal rights.

        African Americans were legally treated as less than whites. They fought, and won, equal rights.

        Transgender people have been treated as less than, and as a result fought to get equal protections under the law. And were given them.

        If you support the rolling back of these protections, then you support the creating of a second class human being in transgender people. You are saying they are less than.

        This is bigotry.

        The inclusion of African American peoples struggle for protections is not a distraction, it is a parallel.

        Either transgender people are people, and deserve the rights and protections as such, or they are less than human.

        You are absolutely allowed to be a bigot, but the government of this country is not allowed to take the rights away from people in a way that makes them less than other humans.

      2. Enk as in brilliant?

        “First, she ruled that transgender people have long been the targets of discrimination based on their gender identity, that their identity is something basic to their human character rather than a personal choice, that they are fully capable of functioning in society, and that they lack political power sufficient to protect themselves against bias. That meant she had designated them as what technically is called a “suspect class” – not because their identity stirs suspicion, but because that identity is so basic to them that any official policy that treats them less favorably is “suspect” under the Constitution’s guarantees of equality and due process.

        Second, the judge said this designation entitles transgender people to have official forms of discrimination against them judged in court by “strict scrutiny” – the toughest test that government policy must meet in order to survive as constitutionally valid. Under that test, a government policy challenged as discriminatory will be struck down unless it is proven to serve a “compelling government interest” and is “narrowly tailored” to do so.”

        Enk as in knowledgeable?

        Since the physical sexual is determined at one point of development, and on occasion some variation in chromosomes might mean “super males” or “super females” are created… and at a later stage the psychological and emotional sex are determined… we can have transgender people.

        These individuals are entitled to all there rights and cannot be singled out one way ore another without violation of their civil rights.

        Using past actions to make a point Enk?

        African Americans and other minorities have been discriminated, enslaved, considered less than human,, or 3/5ths of a person, put on reservations and put into interment camps and concentration and internment camps. These things were promoted, but they are wrong.

        Sorry, that the Fourteenth Amendment is so hard to accept?

  5. Dino, evidently I touched a nerve and that caused your obscenity laced reply. Maybe my Natalie Woods example hit a little too close to home. I apologize.

    No, I did not miss the point, I just failed to agree with your liberal position. That evidently makes me a bad person. Since you do not agree with my position, am I entitled to think that you are a bad person?

    Maybe you can, minus your obscenities, explain me exactly what rights the minuscule transgendered Community is being denied. I see no internment camps where they are being kept, I see no signs in local stores Transgeners Not Allowed. I recall no transgendered being burned at the stake on the 400 Block. So I again ask what rights they do not have.

    From your comments, I have the belief that you, Mr. Ludwig, and Susan are in total agreement that a teenage boy, who feels he is a girl, has every right to shower with teenage girls, eventhough h is packing male genitalia. What about the rights of the teenage girls? Don’t they have rights?

    Am I understanding you correctly.

  6. Brad, the genitalia checker sound like it was made just for you. Good way to fill up those empty hours, make a few bucks and meet interesting people.

    1. Congratulations, Stan. You managed to not answer most of my questions but your glib reply did, at the very least, insinuate that the ‘Genital Checker’ should be done at the local level.

      You’ve stated your opinion, pretended to start a debate, then walked away from your position through ‘humor’.

      As for your ridiculous shower example, the YMCA handles this similarly with the family shower rooms. The same solution could be applied elsewhere.

  7. Wow. Amazing.

    You literally have NO IDEA what you are talking about.

    This is about legal, constitutional rights and protections. YOU do not have the right to discriminate against african americans because they are african americans.

    And the repealing of this protection would allow YOU to discriminate against transgender people because they are transgender people.

    So, what rights and protections are they going to lose? The right to serve in the military, protection from employment discrimination (now people can choose to not hire transgender people because they are transgender people which is a violation of the 1964 Civil Rights laws).

    Now, signs that say No Transgender People Allowed, those signs are legal.

    You are not understanding me correctly. The process of securing a transgender change is a long and massive one. Your incendiary example about school showers is just intended to inflame and emotionalize and distract from the fact that you think it is okay to discriminate against human beings based on theme being transgender.

    I mean, lets turn this shit around Stan, how about it?

    Can Transgender people serve in the military?
    Can a landlord deny a person an apartment because they are a transgender person?
    Can businesses refuse to serve transgender people because they are transgender?

    Just own your bigotry.

    1. Dino, try a little more fiber in your diet, that may help.

      As best I can tell, transgender people can serve in the military, they can secure housing by eithe renting or purchasing a home, and a business cannot legally refuse to serve a transgendered person. So again I ask what rights are they being denied?

      As far as the transgendered boy wanting to shower with the girls, it has been requested in a number of different locations throughout the nation. Google it.

      I Aldo like your typical liberal tactic. If I don’t agree with your position I am a bigot. You liberals are big on free speech as long as a person is saying what you agree with.

      Here is a bit of shocking news for you. Everyone is entitled their opinion, whether you agree with it or not.

      Also I am curious. How can you continue to respond so frequently on what is for most people a work day. Are you wearing an ankle bracelet because you are under house arrest. If not, you are surely cheating your employer by spending work time creating your pointless responses.

      BTW, I am retired so I have all the time in the world to respond to your nonsensical dribble.

  8. You are bigot not because you disagree with me, that is more than cool. You are a bigot because you are okay taking rights away from other humans. That makes you a bigot, worse off, it makes you someone who seeks to codifiy your bigotry through the law.

    The rights that are lost, landlords will be able to refuse to rent to transgender people because they are transgender people. The military can refund transgender people because they are transgender people. Businesses can refuse to serve transgender people because they are transgender people.

    1. Dino, I have never advocated taking away anyone’s rights. I merely posed the question as to why a miscue portion of the population should have more rights than the average citizen. You are the one who started using profanity and calling people names.

      I still believe that the transgendered population has more rights than your average citizen. Like the example I previously cited, a transgendered man (that is an individual with the same genitalia as I do) can go into a woman’s bathroom just because in his mind he is a woman. Let the average man attempt that and see what happens.

      The example of the transgendered teenage boy who wishes to shower with the teenage girls had been attempted. But yet, you liberals play the bigot card because you have no defense for such an absurd request. And that leads to you resorting to simple name calling. You liberals are a sorry lot.

      I can assure you that if you polled the parents of the teenage girls who were going to be forced to shower, or use the same bathroom as a boy own feels he is a girl, they would be less than receptive of that idea than you are.

      We are not going to agree on this matter. So I suggest that we end this be saying that we simply agree to disagree.

      1. No. Again, no one wants MORE. They want equal.

        You want to agree to disagree, in the same post as insulting liberals.

        You seek to take legal rights away from humans. I will keep saying it over and over again. Because you do not seem interested in knowing what you are talking about, instead you want to bait me into talking about showers.

        What we are talking about is legal rights for American citizens. You wish to deny them that. And that is wrong. You are wrong. So, no, I will not agree to disagree. I will point out you being wrong. You are wrong. Not because your ideas are bigoted (they are) but because you do not actually have any interest in speaking to legal protections or rights being equal. You instead somehow think that this is a situation of special treatment.

        It is not. It is the case of equal treatment. Which you do not think certain people deserve.

      2. Stan, you are only concentrating on transwomen and not transmen? Why is that? BTW, trans people are much more likely to be assaulted than to assault. I guess you want separate bathrooms for gays and lesbians as well?

  9. All right, guys, I know this is a hot button topic and there are some passionate viewpoints. But please try to keep things civil. Please.

    1. Great story! Please do tell us more about the science side of it. I would be interested to hear the facts.

  10. I don’t see anyone here explaining this correctly…for one…those comparing African American individuals to trans individuals is just crazy. That alone is racist and way off. Your comparing a trans person with a possible mental illness …too an actual race in African Americans who were literal slaves in past history . I bet they would appreciate the comparison. We have hate crime laws those are all the rules we need and those can still apply. Murder and assault is still illegal the last time I checked. So what rights are they losing?

    It’s bs to say landlords won’t take someone’s money because we know landlords only see green lol..

    employers and the military may find trans individuals not reliable or a distraction. I know most don’t want to say it but a lot of those individuals have underling issues or even mental health issues. It’s nothing to coddle or laugh at! It’s a serious issue and to treat it like they are a race or something like I am reading on this thread is just sickening.

    Yes trans people can live a normal life and they can do so. I am completely fine with that. Just don’t expect others to play along. I still call Brice Jenner Bruce when I see him mentioned.

    They can’t force us to a acknowledge 20+ different genders because science says we don’t have to. This rule may very well destroy that ruling about insurance companies having to cover transition surgery and hormone treatments. I won’t even get started on that

  11. Todd,

    That is incredibly entitled, and amazing solipsistic. I will respond though.

    You state, “Your comparing a trans person with a possible mental illness …too an actual race in African Americans who were literal slaves in past history ” First off, being transgender is not a mental illness, and it is so incredibly insulting to even type that, shame on you. Secondly, no one compared transgender people to African Americans, I compared the fight for African Americans struggle to get their legal protections to transgender people struggling to get their legal protections. This is an accurate comparison.

    You state, “We have hate crime laws those are all the rules we need and those can still apply. Murder and assault is still illegal the last time I checked. So what rights are they losing?” They are losing legal protection against discrimination. Meaning it would be completely legal for a business to post a sign that said “No Transgender People Allowed”. The will not be able to serve in the military.

    You stated “employers and the military may find trans individuals not reliable or a distraction. I know most don’t want to say it but a lot of those individuals have underling issues or even mental health issues. It’s nothing to coddle or laugh at! It’s a serious issue and to treat it like they are a race or something like I am reading on this thread is just sickening. ” So you listen to Ben Shapiro and Gavin McInnes. Either way, it should be illegal for an employer to not hire someone because they are trans. The reason is not BECAUSE they deserve anything special, but because they deserve nothing less. What you are saying, repeatedly and incredibly insultingly, is that transgender people deserve less than non transgender people. LESS than.

    Your last two paragraphs are so incredibly narrow minded and insulting, I do not feel the need to respond to them. But, your bigotry is clear now. Now we know who you are. You are someone who thinks that it is okay do discriminate against another human being, to treat them as less than human, because they are trans. That is something you should be ashamed of.

    Again, no one wants special rights, they simply want equal rights and protection under the law.

  12. Forcing the rest of us to acknowledge transgenderism as normal is totalitarian and a violation of civil rights. Trump is simply reflecting reality of the truth that everyone is born either male or female. Whatever you imagine yourself to be is irrelevant. You don’t have the right to force my acceptance of whatever your mental illness is telling you that you are.

    1. When the US Constitution has the 14th Amendment to protect citizens from any form of discrimination, then we all live by the law… it is based on both science and law… law and order are nothing like a system of government that is centralized and dictatorial and requires complete subservience to the state.

      The reality is people have male or female sex organs, but during anther part of their development, they get the psychological and person gender traits. The science is not irrelevant. Facts and the law stand with trans-gender people.

      What do you really know about mental illness, that is a separate topic and cures and treatments are possible or we find a way to monitor behaviors…

      People have all kinds of ienaelbale rights, freedoms, and civil right under the law… violate the rights of others and you can find yourself cross ways with the law.

  13. Kurt,
    No one is asking you to do anything. What trans people are asking for is equal protection under the law. Why do you oppose that?

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