A memo recently obtained by the New York Times shows that the Trump administration is planning an outrageous and cruel new escalation in its war on trans people.
The Department of Health and Human Services is leading the charge on an effort that would create a new, false and deeply bigoted definition of gender across all federal agencies: defining everyone as “male” or “female,” and this would be “unchangeable, and determined by the genitals that a person is born with,” according to The Times (The department suggests that disputes about a person’s physical features would have to be “clarified using genetic testing.”) Such a regulation would undoubtedly impact intersex people (those born with variations in sex characteristics that do not fit the typical definitions for male and female) in a highly negative way, and it’s unclear how it would coexist with state laws that allow people to change their gender marker on legal documents. The regulation raises the possibility of a federal database of individuals’ genitals, which the government would use to sort out what sort of protections, services and claims an individual could access based on how they were identified at birth.
For years far-right elements in the Republican Party have used the trans community as a punching bag, pushing “bathroom bills” based on fear-mongering and bigotry in an attempt to whip their conservative base into an angry mob. It is unclear who leaked the memo, but taking place just two weeks before the midterm election is suggestive that the Trump administration is attached to the same formula. At a time when Medicaid expansions are on the line in several red states, for instance — with the health care of millions of poor people under threat — the White House would surely like to redirect attention and anger towards the non-existent “threat” posed by trans people or the Honduran migrant caravan.
But whenever the far-right launches a new crusade against the LGBTQ community for cynical electoral reasons, the movement has only grown stronger. The damages of their policies are real but the fact is that the trans and nonbinary community and its supporters are not going away. No bureaucratic maneuver can halt the sea change in political consciousness that has taken place on these issues, which will ultimately win out.
The Trump administration has already attacked trans children in schools, denying them newly won protections, as well as in the military and elsewhere. It has already argued that sexual orientation and gender identity are not protected by federal anti-discrimination provisions, and that it’s therefore legal to deny jobs and services on these bases. The new regulation, erasing the legal recognition of a changed gender status, would surely be used to make the same argument — saying that a trans woman facing sex discrimination on the job, for instance, could make no such complaint because she was “actually a man according to the birth certificate.”
In the bathroom bills, the far-right created a struggle out of a non-issue: people going to the bathroom of their choosing. The real-world consequences were a spike in bigotry and violence against trans and gender non-conforming people.
Similarly, there is no bureaucratic burden imposed on the government or the courts to recognize people’s declared gender; the government is trying to wholly deny trans people’s gender so as to make it altogether impossible to make claims of discrimination. If anything, this regulation would create an enormous new bureaucratic hurdle to make trans, nonbinary and intersex people’s lives more difficult. It will also encourage greater boldness from anti-trans bigots. Indeed, those are the policy’s real, if unstated, goals.
Despite many attacks, the trans community has persevered, attracting wider support and visibility. Year after year, this has resulted in important legal victories against discrimination and regulatory recognition of people’s rights to assert their own gender. These victories include things as simple as the ability to change ID documents (including birth certificates), the creation of third gender (or no gender marker) options on ID documents in some states and guidelines from the medical profession that are slowly emerging in opposition to non-consensual surgery on intersex infants. The Trump administration is attempting in one fell swoop to undercut these gains. But the people’s united fight-back can defeat this measure as well.
Implications of the memo
In this memo, the entirety of which has not been released, the department argues that government agencies must adopt a definition of gender determined “on a biological basis that is clear, grounded in science, objective and administrable.” However, the proposed definition itself is anything but scientific. It would define gender as “male” or “female,” unchangeable and determined by the external body parts a person is born with.
All people do not distinctly fall into a biological category of “male” or “female”. Sex characteristics are diverse and present differently in a broad spectrum. For many intersex people, the proposed “genetic testing” would only confirm that they are, in fact, intersex. Moreover, phenotypical sex characteristics and gender — the boundaries of which are culturally constructed — are not identical, and millions of people have thus taken the step to change their stated gender in their legal documents and socially in their communities, families, friendships and workplaces. Trans and nonbinary people are targeted not based on their sex characteristics but because they have the courage to rebel against and challenge the “rules” of gender.
Trans, intersex people and the broader progressive community across the U.S. are understandably disgusted by the news of the memo, which presents a clear and extreme threat of “defining trans people out of existence.”
In plain terms a rule like this would make it incredibly difficult for people to adjust their documentation to reflect their actual gender. For trans people with existing inconsistencies between ID documents, or those with the correct gender marker on their documents, this rule would mean they could not be recognized as their correct gender.
This memo specifically attacks Title IX, which addresses discrimination and mistreatment based on “sex.” Title IX is specifically relevant to students: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under the Obama administration, a federal memo was issued directing people to interpret Title IX laws as addressing discrimination based on gender as well, thus applying to trans students. That guideline did not cement nondiscrimination into law, however, and so has been the target for a regulatory rollback.
The Department of Health and Human Services is pushing for the “Big Four” agencies that are governed by Title IX (the Departments of Justice, Education, Labor and Health & Human Services) to adopt this backwards definition of gender. Their objective is to leave no stone unturned in the application of the rule, and to facilitate the acceptance of it in court.
Practically speaking, this would impact other settings affected by Title IX, including barring access to locker rooms and bathrooms and being denied housing with the correct gender. The administration has been dragging its feet already on a directive to place homeless trans people in shelters that match their genders. The fact that this memo targets the most vulnerable people – youth – only showcases how profoundly heinous this administration is in its attack on human rights.
Fightback ramps up
Trans rights organizers and broader civil rights groups are taking up the fight against this proposal, which the Department of Health and Human Services plans to present to the Justice Department before the end of this year. If the Justice Department accepts the change, the new definition of gender would be enforced in Title IX statutes across the country. While the current reactionary Justice Department offers little in the way of hope that they would oppose such a definition, advocates rightly point out that the majority of legal precedents in the past two decades have affirmed that anti-trans bias constitutes sex discrimination.
LGBTQ civil rights attorney Sam Ames offers some clarity:
“This is bad news, but it’s not new news. The memo released today represents a particularly cruel attack on trans people, but it’s part of an overall strategy to chip away at civil and human rights that’s been in place since this administration took office. That the latest attack targets the youngest among us as a means of enacting that strategy is sickening, and our advocates are working hard in the courts to ensure the most vulnerable members of our community will remain protected. In the meantime, we remind our people, especially our youth, that this is one battle in a much longer war – and we won’t let them fight it alone.”
We are less than one month away from Trans Day of Remembrance, traditionally a day dedicated to mourn trans people lost to transphobic violence. The recognition of this day has been swiftly expanding in many places to include actions demanding trans rights and honoring trans fightback and resilience. This year, the non-stop attacks on trans rights and dignity will spark a large mobilization of people engaging in fightback. Trans people and supporters of equality are also taking note that past struggles, including the fight for strong and immutable employment nondiscrimination laws, have been ignored by the political establishment of both parties. Even with a Democratic majority in all parts of the government, trans people were told that the Employment Non-Discrimination Act was far too ambitious and impossible to implement.
Trans rights — like the rights of the entire LGBTQ community and all oppressed people — will be won in the streets, not by waiting for any phony “resistance” from political elites.
The PSL fights for a socialist system that protects the rights of LGBTQ and other oppressed people as non-negotiable. Every person must have the guaranteed right to present and identify themselves and love whoever they please, to change without fear of repression, discrimination and bigotry. Under such a system, there will be no need for gender markers whatsoever on government papers, and everyone, regardless of gender, would enjoy the same basic constitutional right to a job, quality education, housing, health care and dignified retirement.
Now more than ever, we need a united movement that truly fights for the rights of all people. Historically, trans people have always been among the first to be targeted or impacted when basic human rights are attacked. The struggle to defend trans people, and educate the working class and all people on gender equality in the deepest spirit of solidarity, is of urgent necessity to beat back the far-right attack. That attack seeks the most vulnerable communities to scapegoat and direct anger, and in fact is an attack on the whole working class.