Yesterday, in an act of discrimination against trans and gender nonconforming people, the Trump administration made an announcement that they would be attempting to redefine gender as a “biological, immutable condition determined by genitalia at birth.”
While at first it may not be obvious to cisgender people why a strict definition of gender has such terrifying implications for trans and gender nonconforming people, the impact from this decision will reverberate out to touch so many of our lives. This act, if followed through, could open up trans and GNC people to boundless discrimination. It is reminiscent of the years before the Stonewall Riots in which women had to wear three items of “women’s clothing” and men three items of “men’s clothing,” regardless if that actually matched their gender expression.
Previously, the Obama administration redefined gender more loosely as an individual’s choice and not determined by the sex assigned at birth. This prompted many debates about bathrooms, locker rooms, dorm rooms, and other public areas where single-sex options were all that existed. Along with these debates came new legislation that gave protections to trans and GNC folks who already face higher rates of discrimination and institutional violence. The Trump administration’s stringent definition seems to be an attempt to roll back these protections, which they have already been doing.
The Department of Health and Human Services is spearheading this rollback to define sex (and thus gender in their opinion) as bio essentialist.
The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.” The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo, which was drafted and has been circulating since last spring. “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.”
This will impact the estimated 1.4 million Americans who define their gender as something other than what it recognized on their original birth certificate. However, these implications could expand even further than that to also roll back civil rights for cisgender LGBQ people. The Department of Health and Human Services is arguing that the term “sex” was never meant to include gender identity or even sexuality, which is how it was used during Obama’s presidency to aid in bringing in legal protections for LGBTQ Americans against housing, employment, and health care discrimination.
To put it simply, if a trans or GNC person is discriminated against because of their gender identity, they will no longer be able to say they were discriminated against of the basis of sex—since this redefinition only recognizes biological sex. If a trans woman loses her job because she was outed, she won’t have a legal leg to stand on, because this new definition would recognize her as male. If she can’t be recognized as her true identity, she can’t prove she was discriminated against because of it.
The Department of Health and Human Services is attempting to bring in four other agencies to adopt this new definition in their use of Title IX, Departments of Education, Justice, Health and Human Services, and Labor. Harper Jean Tobin, the policy director of the National Center for Transgender Equality, told The Times this is “an extremely aggressive legal position that is inconsistent with dozens of federal court decisions.”
There has been a flurry of responses from trans and GNC activists both online and on the grounds protesting. “After 70 years I am here to tell you the system has always tried to break us. All us trans girls know we got to depend on each other and when enough of us bitches come together we can burn it down and use the ashes to build the motherf*cking mansions we deserve!” Miss Major, a trans activist who has been around since the Stonewall Riots, posted on Twitter yesterday.
Last night, community gathered in Washington Square Park to rally against these violent rollbacks of civil and human rights. Speakers included Indya Moore, Chase Strangio, Carmen Carrera, Sara Ramirez, and more. It was a powerful display that we can hold each other up. That we are a chosen family that won’t be torn down by government restrictions.