Should the Government Define Your Gender?

Proposed federal rules would redefine transgender Americans out of existence.

Posted Oct 23, 2018

Once again, LGBTQ Americans are being forced to show our personal and community-wide courage, determination, and resilience as the Trump administration continues its efforts to marginalize Americans who don’t fit its narrow view of who is acceptable and who is not.

LGBTQ leaders are outraged by reports that Donald Trump’s Department of Health and Human Services is spearheading a government-approved legal definition of sex as used in civil rights law, defined exclusively by genitalia at birth.

Any dispute with the government’s determination of one’s gender would need to be clarified through genetic testing.

It’s unclear how intersex people would be defined according to the proposed “official” definition of sex. Even genetic testing could confound the feds because these individuals are born with any of several variations in sex characteristics, including chromosomes, gonads, sex hormones, or genitals. The United Nations Office of the High Commissioner for Human Rights says such variations mean these individuals’ bodies "do not fit the typical definitions for male or female bodies.” Some intersex persons are assigned a gender identity and raised as a girl or boy, but then identify with another gender later in life; most continue to identify with their assigned sex.

An official, legally sanctioned definition of sex/gender, central to two proposed rules being considered by the White House, would codify the disproven notion of biological, immutable gender identity under Title IX, the federal civil rights law banning gender discrimination in education programs that receive federal funding. One rule from the Education Department deals with complaints of sex discrimination at schools and colleges receiving federal assistance. The other, from DHHS, deals with health programs and activities that receive federal funds.

Were the new rules to include the proposed definition of sex, transgendered Americans could be “defined out of existence,” as the New York Times put it in the headline of its breaking story about the internal DHHS memo describing the proposed change. Besides contradicting legal precedent, the new rules would strip the civil rights of an estimated 1.4 million Americans who identify as a gender other than the one they were born into.

Both proposed regulations are expected to be released this fall for a 60-day public comment period. After the agencies consider the public’s comments, they will issue final rules that have the force of law. Both could include the new gender definition.

If these rules are adopted, they would mark the biggest step yet in the Trump administration’s repeated efforts to exclude transgender Americans from civil rights protections, military service, and health care protections. One of the administration’s earliest acts was to reverse Obama-era guidelines for the Education and Justice Departments that protected transgender students who wanted to use bathrooms that corresponded to their gender identity.

Not surprisingly, the administration’s rationalization for its proposed rules includes the assertion that Obama-era policies recognizing gender identity were too broad, and that the term “sex” in civil rights law was not meant to include gender identity or homosexuality. Accordingly, the Trump administration claims the Obama administration was wrong to extend civil rights protections to men and women who should not have them.

A coalition of civil rights groups has presented the administration with their own memo, stating, “The overwhelming majority of courts to address the question since the most relevant Supreme Court precedent in 1998 have held that antitransgender bias constitutes sex discrimination under federal laws like Title IX.”

Catherine E. Lhamon, who led the Education Department’s Office of Civil Rights in the Obama administration, told the New York Times, “This takes a position that what the medical community understands about their patients—what people understand about themselves—is irrelevant because the government disagrees.”

She was referring to the medical diagnosis of gender dysphoria that is required to access medical intervention. The proposed rules would be problematic for those who seek hormone therapy or what is widely called “gender confirmation” or “realignment” surgery that helps transgender people who choose them to bring their outward appearance into sync with their inward identity.

In real life, outside Washington, D.C., advocates predict such hostile, anti-scientific rules would lead to greater hate and violence toward transgender people, and even more barriers in obtaining health care and education.

“Transgender people are frightened,” Sarah Warbelow, legal director for the LGBTQ advocacy group the Human Rights Campaign, told the New York Times. “At every step where the administration has had the choice, they’ve opted to turn their back on transgender people.”

Transgender celebrity Caitlyn Jenner, a Republican and a Trump supporter, told People magazine, “The Trump administration has ferociously attacked my community again." The 68-year-old Jenner added, “We will not be erased!”

 U.S. Mission to the U.N./Wikimedia Commons (Public Domain)
Caitlyn Jenner in 2015
Source: U.S. Mission to the U.N./Wikimedia Commons (Public Domain)

Most harmful of all, there would be a greater sense of hopelessness among men and women already forced to fight for their basic human right to live without legal discrimination according to their own understanding of themselves—not the government’s.

The Los Angeles Times reported that the city’s Los Angeles Gender Center received a higher volume of calls and emails from panicked transgender clients and their family members the day after the New York Times first reported on the DHHS memo. Aydin Olson-Kennedy, the center’s executive director, was quoted as saying, “This adds a whole other layer of trauma for people who already experience a lot of it.” He noted that transgender people have disproportionately high rates of depression and anxiety, and higher rates of suicide.

In fact, The Trevor Project, a national LGBTQ youth suicide prevention organization, says it has seen an increase in calls from young people who identify as transgender or gender-nonconforming.

As transgender Americans are forced into the spotlight once again, their human rights debated at the highest levels of the federal government, it's crucial to remember and remind one another—all Americans, of whatever orientations or identities—of all we have endured, and survived, up to now. 

People learn a great deal about creative resistance when we are forced to live at the margins of society. Our sense of personal integrity requires us to identify ourselves differently from what others tell us about who and what in their view we “should be.” One of the things we learn is to resist, in our own minds, the hostile messages that assault us by not handing the power to define us to those who bully, demean, and even attempt to redefine us.

Lilac Vylette Maldonado, an advocate with the Los Angeles-based LGBTQ organization Equal Action, put it well in the Los Angeles Times: “We must remember that our people have faced worse than this," she was quoted as saying. "We have a legacy of resilience. If that’s all we have, that’s enough.”