The Trump administration may move to rigidly define gender as a fixed status determined biologically by the genitalia a person is born with, reversing Obama-era policies that granted federal recognition to transgender individuals, according to a Sunday report from The New York Times.
The paper said it obtained a memo detailing how the Department of Health and Human Services plans to create a legal definition of gender. The definition would be implemented under the Title IX law, which bans discrimination based on sex in federally funded education programs, the Times reported.
The HHS memo said that gender should be defined “on a biological basis that is clear, grounded in science, objective and administrable,” the Times said. A person’s gender would be strictly male or female and it would be unchanging.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the memo said, according to the Times. “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.”
According to a 2016 study from the Williams Institute, a UCLA Law-based think tank focused on sexual orientation research, about 1.4 million American adults identify as transgender.
Former President Barack Obama’s administration argued that the 1972 Title IX law bars discrimination based on gender and sexual orientation. When the Department of Education issued a guidance in 2016 requiring schools to allow transgender students to use the restroom or locker room of their chosen gender, it invoked Title IX. That meant schools that did not comply could risk losing federal funds.
That guidance infuriated conservatives, who decried the move as a clear case of federal overreach. The directive was rescinded one month after President Donald Trump took office in 2017.
Trump’s HHS department has argued that the term “sex” was never legally meant to include homosexuality and gender identity, the Times reported.
Roger Severino, the current director of the Office for Civil Rights at HHS, wrote several articles critical of Obama’s efforts to extend civil rights protections to transgender Americans. In 2016, Severino called the Education Department’s guidance on school bathrooms the “culmination of a series of unilateral, and frequently lawless, administration attempts to impose a new definition of what it means to be a man or a woman on the entire nation.”
Trump has also sought to bar transgender troops from serving in the military.
According to the Times, HHS officials plan to present the proposed change to the Department of Justice by the end of the year to assess the legality of the new definition.
Gay rights advocates decried the reported move to rigidly define gender.
The Human Rights Campaign, an LGBTQ civil rights organization, condemned the plan as the administration’s latest effort “to undermine the rights and welfare of LGBTQ people.”
“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,” HRC President Chad Griffin said in a statement. “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.”
The Trevor Project, a suicide prevention organization aimed at helping LGBTQ youth, called the potential change “reckless and dangerous.”
“When a young person hears that their existence and gender identity will not be recognized by their government, they hear that they are not worthy to be a part of that nation. Transgender youth seeing this report should know that they are not alone and that their identity is valid – nothing the government does can change that,” Amit Paley, CEO and Executive Director of The Trevor Project, said in a statement. “These policy decisions have real-world consequences.”
Contributing: Gregory Korte, USA TODAY
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