On October 21, the New York Times published a report describing a Trump administration memo that shows they’re reconsidering new guidelines to Title IX, the federal civil rights law that was put into place to protect people from discrimination based on gender. According to the New York Times' report, the Trump administration would define gender “on a biological basis that is clear, grounded in science, objective and administrable.” By that definition, only two genders would be considered — male or female. According to the New York Times, the department suggested in memo, "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."
If this policy is enacted, 1.4 million Americans will no longer be recognized by the gender they identify with. In not being recognized, civil rights protections will be eliminated. But, as anyone with any knowledge of how sex and gender identity works, there aren’t just two genders. What this is really about is punishing anyone who isn’t cisgender.
"This is a direct attack on the fundamental equality of LGBTQ people."
“Setting a destructive precedent, the Trump-Pence administration intends to erase LGBTQ people from federal civil rights protections and eviscerate enforcement of non-discrimination laws,” Human Rights Campaign president Chad Griffin said in a press release. “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. 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.”
Pediatric endocrinologist and lead physician of the Gender Journeys of Youth program at Chase Brexton Health Care, Dr. Elyse Pine, who works with transgender youth, is also amongst the many to voice her concerns.
“Even before my work with the LGBT community, I have known that sex, hormones, genitalia, and chromosomes are far more complicated than the current administration cares to understand despite their talk of ‘science’ in this proposed policy change," Dr. Pine tells Bustle. "The idea that biological sex exists as only two options: ‘Male’ or ‘Female’ that always neatly aligns with body parts and chromosomes is simply not true. Nature is far more complicated and beautiful."
"There is plenty of science showing that gender identity is a strong and intrinsic part of an individual's personality, and that transgender people who are supported and affirmed can transition and can have happy, healthy, and fulfilling lives."
According to Dr. Pine, many babies are born with ambiguous genitalia that are in between the typical male and female genitals, as well as babies born with both XX and XY chromosomes, or XXY, or a variety of other chromosome combinations.
"Or babies born with XY chromosomes, internal testes, and a vagina, who grow into women with breasts (as in the case of a woman with complete androgen insensitivity syndrome)," Dr. Pine says. "A blood test for a woman with this condition would show XY chromosomes, not because of 'transgender ideology,' but simply because her testosterone receptors do not recognize testosterone and therefore her body develops with breasts and curves. There are more than two categories of sex in nature. A government policy cannot define away intersex people, cannot define away transgender people, and cannot define that there are additional factors beyond chromosomes that define both sex and gender... There is plenty of science showing that gender identity is a strong and intrinsic part of an individual's personality, and that transgender people who are supported and affirmed can transition and can have happy, healthy, and fulfilling lives. I have seen hundreds of young people who have blossomed when permitted to live authentically."
Dr. Keisha Michaels, MD, who is the parent of a transgender daughter and on the Human Rights Campaign's Parents for Transgender Equality National Council knows, first hand, what such a policy could mean for her family.
"Attempting to deny her existence is not only hurtful to us, but will prove to be akin to chasing a fool’s errand," Dr. Michaels tells Bustle. "As her parents, we will ensure that she is not denied her humanity – the right to live, learn, grow, love, and be happy. There will be no day in the near nor distant future in which my daughter will not matter. She exists and is very much a real, whole, happy, adjusted person. With all that is in her father and me, we will wrest power from those who wish to deny her the future that she deserves."
If Trump's policy were put into motion, it could lead to increased violence against a community that is already preyed upon. "Transgender people are people and deserving of civil rights protections," Dr. Natalie Hinchcliffe, family medicine physician in Ohio and fellow with Physicians for Reproductive Health, tells Bustle. "Gender identity is a person’s inner sense of what they know their gender to be. It is different than sex, which is assigned at birth and is determined based upon genitalia, reproductive organs and chromosomes. Gender and sex are not the same thing."
According to Dr. Hinchcliffe, in the Trump administration's memo that would remove protection for these folks, there's a very false statement: "Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth."
"There are more than two biological sexes," Dr. Hinchcliffe says. "While many think of sex as only male or female, that is incorrect. There are other biological sexes, and this can be confirmed by genetic testing... Removing legal protections from discrimination places many Americans at risk. Transgender and gender diverse people would all be at risk of discrimination, violence, and persecution. This would not only affect these Americans, but also their families, communities, and the lives of people who love them."
"Biases exist in our health care system at every level. This prevents many from accessing the health care they need."
As Dr. Hinchcliffe notes, transgender people already experience higher rate of mental health illnesses and suicide. They also have a hard time trusting the medical system. "And for good reason," Dr. Hinchcliffe says, "as biases exist in our health care system at every level. This prevents many from accessing the health care they need... Attempting to make invisible an entire group of Americans will never succeed. But it will increase violence, discrimination, and perpetuate disparities among Americans, which is simply put, unAmerican."
Ultimately, this comes down to bodily rights and a government that should have zero say in how one defines themselves — in any regard.
"As a woman, as a pediatrician, and as a mom, I shudder to consider the Trump administration controlling my or any of my young patients' physical and bodily rights," Dr. Michelle Forcier, pediatrician in Rhode Island and Faculty with Physicians for Reproductive Health, tells Bustle. "The right to self determine is a part of the U.S. fabric of autonomy and of independence. The right for the individual to determine selfhood, including gender identity, is certainly not the business of politicians who have their own political agenda and gain. The right for children and families to make decisions regarding their own human, and yes gender identity, is a basic human right to live a true, a brave, and an authentic life."
According to Dr. Forcier, the policy is simply malicious, ignores science, and "ignores the American Academy of Pediatrics policy recommendations of gender-affirming care, and that ignores the basic concept of children and families deserve to live and work in safe and healthy environments, it is unacceptable to tell a child you do not exist, your experience is not valid, we as a society cannot stand to listen, to learn, to accept and to love you, as is, with all your differences and for your true and beautiful self."
The Trump administration says they rely on science, but scientists say that "science" they're citing is wrong.
"Gender identity is determined by each individual, not by a physician, not by a parent, and not by a politician, and this is recognized by many medical organizations."
“The administration argued that this rule is based on science, but as a scientist I can tell you they have their facts wrong," Dr. Meera Shah, fellow with Physicians for Reproductive Health, said in a statement. "Gender identity is determined by each individual, not by a physician, not by a parent, and not by a politician, and this is recognized by many medical organizations, including the World Professional Association for Transgender Health, the Endocrine Society, and the American Academy of Pediatrics."
As Dr. Jill McDevitt, sex educator and resident sexologist for CalExotics, says, this policy perpetuates myths over truths.
“The myth that gender is ‘an immutable condition determined at birth by genitalia and biology’ is opposed and unsupported by gender, sexuality, psychology, sociology, anthropology, biology, and medical experts, and the White House knows this,” Dr. McDevitt tells Bustle. “All humans want and deserve to be seen and recognized. And attempts to define and codify words around people's identity out of existence is an attempt to erase their very humanity. Make no mistake, this policy is about erasure and dehumanization. This is cruel and dangerous." And it could create an even bigger divide for folks who aren't cisgender.
"Aside from the direct negative impact — civil rights, medical, housing, job discrimination — that dialing back the clock via antediluvian regulations can and will have for one of our most vulnerable populations, it will have the equally insidious effect of reinforcing the trans community as 'other' for the majority of Americans who do not know a single trans individual and rely on what they see and hear from the media and, yes, the government to form their opinions," Matt Wagner, vice president of Target 10, an LGBTQ marketing agency and consultancy in New York, tells Bustle. "According to GLAAD, which conducts a yearly study on LGBTQ acceptance with The Harris Poll, 2018 was the first year in five that non-LGBT Americans told pollsters that they’re less comfortable with their LGBT neighbors, and the number of LGBT survey respondents who told pollsters that they’d experienced discrimination based on their sexual orientation or gender identity jumped by 11 points. This effect will only be amplified for the most marginalized and stigmatized among us, and it is for that reason that the entire LGBTQ community as well as all our allies in equality must stand up and speak out to keep the jackboots off all our necks."
Attempting to erase an entire group of people will only undo so much progress that has been made. “The Center is horrified by this proposal to narrow the federal definitions of gender,” chief advocacy officer Shijuade Kadree, of NYC's LGBT Community Center, tells Bustle. “This reckless and inhumane attack on the lives of nearly two million transgender, gender non-conforming and non-binary individuals could effectively undo the precedent set by dozens of federal courts that have affirmed the full rights and protections against discrimination for people who identify along the gender spectrum for over two decades."
The proposal to narrowly define gender in such a way will affect everything from health care, to employment, to even housing and education for the transgender community. As Kadree points out, this policy isn't fueled by science or law, but fueled by bigotry and intolerance.
"Transgender people are our family, friends, neighbors, and coworkers who unequivocally deserve self-determination, respect and fair treatment under the law," Kadree says. "We will do everything in our power to defeat proposals like this one until we have secured full rights for every transgender, gender non-conforming and non-binary person in our country.”
"There has never been a time when transgender people did not exist and there will never be a time in which they do not exist."
And as Kryss Shane, MS, MSW, LSW, LMSW, trans activist, and LGBT expert, tells Bustle, the attempt to erase an entire population of people is absurd.
"There has never been a time when transgender people did not exist and there will never be a time in which they do not exist," Shane says. "As long as the American government continues to require transgender people to pay taxes and to make payments on their student loan debts, they are obviously not pretending that these individuals have simply disappeared. Instead, this a flagrant attempt to increase the bigotry and to remove vital safety and legal protection for transgender individuals and their families."
Shane adds that cisgender people must stand up and show their support. "Not just because of the need for the masses to join in support, but also because trans people must know that they are seen, they are heard, and they are wanted," Shane says.
But as Sam McClure, director of LGBT Health Resource Center at Chase Brexton, says for resource centers, nothing will change.
“The news cycle has been full of troubling and confusing news for the LGBTQ community this weekend,” McClure tells Bustle. “What’s important to me as director of the LGBT Health Resource Center is this: We provide welcoming and affirming health care for transgender, non-binary, gender non-conforming, intersex, lesbian, gay and bisexual people. Nothing in the current announcements coming out of the Health and Human Services agency changes that. Public policy debates and political activity can be extreme, and the language can be harmful and divisive. We must remember we are talking about people and their access to affirming health care among other human rights. We are champions of health equity and access for all people.”
The devastation that could be caused by Trump's policy change on how the trans community is able to identify shouldn't be underestimated. It could be far-reaching and anyone who is trans or loves a trans person will be affected. That's why it's important to get out there and vote during the mid-terms. Part of the population can't be erased by hate.
Update: This article was updated from its original version on January 7, 2019.