The Trump Admin Might Change The Legal Definition Of Gender To Exclude Trans People

by Morgan Brinlee
Scott Olson/Getty Images News/Getty Images

In a move that stands to substantially roll back transgender rights, the Trump administration may narrow its definition of gender. According to a new report from The New York Times, Trump's Department of Health and Human Services has proposed narrowing government agencies' definition of gender to a fixed biological state determined by the genitalia an individual has at birth.

In a draft memo obtained by The Times, the Department of Health and Human Services pushed to add a legal definition of the word sex to Title IX of the Education Amendments Act of 1972, which prohibits discrimination on the basis of sex in education programs and activities receiving federal funding. According to The Times, they proposed that government agencies uniformly define an individual's sex "on a biological basis that is clear, grounded in science, objective and administrable."

Under the administration's proposed definition of gender, sex would be defined as unchangeable and either male or female as determined by birth. What's more, disputes over an individual's gender could, under the agency's proposed definition, only be settled via genetic testing.

"Sex means a person's status as male or female based on immutable biological traits identifiable by or before birth," The Times reported the memo said. "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."

In defining a person's sex as unchangeable and determined at birth, the Trump administration stands to not only roll back protections for those who identify as transgender but also, as The Times pointed out, "eradicate federal recognition" of an already marginalized population. In 2016, a study from The Williams Institute found that an estimated 1.4 million adults in the United States are transgender.

This isn't the first time the Trump administration has moved to roll back Obama-era protections for transgender people. In May, the Justice Department announced it would drop an Obama-era rule designed to protect transgender inmates. Under Obama, the Bureau of Prisons had a policy of recommending housing assignments based on gender identity when appropriate. Under Trump, the bureau adopted a policy of assigning housing and bathrooms based on an inmate's "biological sex" and considering gender identity "only in rare cases."

And in March, the Trump administration largely barred transgender people from serving in the military. A White House memorandum announced that Secretary of Defense James Mattis had established a policy stating "transgender persons with a history or diagnosis of gender dysphoria — individuals who the policies state may require substantial medical treatment, including medications and surgery — are disqualified from military service except under certain limited circumstances."

But LGBTQ advocacy organizations are expected to push back against the Trump administration's latest proposal. "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," Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement Sunday. "This transparent political attack will not succeed administratively, legally, or morally."

Keisling characterized the proposed policy as an attempt to effectively abandon transgender people's right to equal health care, housing, education, and fair treatment under the law. "Transgender people have fought rules like this one in federal and state court and won. We have stood toe-to-toe with administrators, legislatures, and executives who would agree with this rule and yet we won," Keisling said. "We know how to defeat this, and we will do everything we can until every transgender person feels secure in their rights under the law."