Trump administration move to undefine Transgender

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The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.

A series of decisions by the Obama administration loosened the legal concept of gender in federal programs, including in education and health care, recognizing gender largely as an individual’s choice and not determined by the sex assigned at birth. The policy prompted fights over bathrooms, dormitories, single-sex programs and other arenas where gender was once seen as a simple concept. Conservatives, especially evangelical Christians, were incensed.

Now the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times.

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.

The new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves — surgically or otherwise — as a gender other than the one they were born into.

This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees,” said Catherine E. Lhamon, who led the Education Department’s Office for Civil Rights in the Obama administration and helped write transgender guidance that is being undone.

The move would be the most significant of a series of maneuvers, large and small, to exclude the population from civil rights protections and roll back the Obama administration’s more fluid recognition of gender identity. The Trump administration has sought to bar transgender people from serving in the military and has legally challenged civil rights protections for the group embedded in the nation’s health care law.

Several agencies have withdrawn Obama-era policies that recognized gender identity in schools, prisons and homeless shelters. The administration even tried to remove questions about gender identity from a 2020 census survey and a national survey of elderly citizens.

The definition is integral to two proposed rules currently under review at the White House: One from the Education Department deals with complaints of sex discrimination at schools and colleges receiving federal financial assistance; the other, from health and human services, deals with health programs and activities that receive federal funds or subsidies. Both regulations are expected to be released this fall, and would then be open for public comment, typically for 60 days. The agencies would consider the comments before issuing final rules with the force of law — both of which could include the new gender definition.

Civil rights groups have been meeting with federal officials in recent weeks to argue against the proposed definition, which has divided career and political appointees across the administration. Some officials hope that health and human services will at least rein in the most extreme parts, such as the call for genetic testing to determine sex.

One of the Trump administration’s first decisive policy acts was the rescission by the Education and Justice Departments of Obama-era guidelines that protected transgender students who wanted to use bathrooms that correspond to their gender identity.

Since the guidance was rescinded, the Education Department’s Office for Civil Rights has halted and dismissed discrimination cases filed by transgender students over access to school facilities. A restrictive governmentwide definition would cement the Education Department’s current approach.

But it would also raise new questions.

The department would have to decide what documentation schools would be required to collect to determine or codify gender. Title IX applies to a number of educational experiences, like sports and single-sex classes or programs where gender identity has come into play. The department has said it will continue to open cases where transgender students face discrimination, bullying and harassment, and investigate gender-based harassment as “unwelcome conduct based on a student’s sex” or “harassing conduct based on a student’s failure to conform to sex stereotypes.”

L.G.B.T. activists mobilized a fast and fierce campaign that included a protest outside the White House on Monday to say transgender people cannot be expunged from society, in response to an unreleased Trump administration memo that proposes a strict definition of gender based on a person’s genitalia at birth.

Within hours, the hashtag #WontBeErased circulated on social media. By Sunday evening, a rally for transgender rights took place in New York; another took place on Monday in Washington.

With the White House as their backdrop, speakers repeated the phrase “We will not be erased,” which has become a rallying cry against the proposal. The 45-minute rally, attended by what appeared to be at least several hundred people, repeatedly referred to the coming midterm elections and encouraged people to vote.

The American public is divided over whether it is possible for a person’s gender to differ from the sex they were assigned at birth, according to a Pew Research Center survey published last year, amid debates over which public bathrooms transgender people should use.

It said the divide was evident along political lines, with eight in 10 Republicans and Republican-leaning independents saying that whether someone is a man or a woman is determined by the sex they were assigned at birth. About 64 percent of Democrats or those who hold their views say a person’s gender can be different from the sex they were assigned at birth.

Jordan Evans, 27, is a town constable and an elected library trustee in Charlton, Mass.

She’s a Republican, as are most of the people in her hometown, a rural community where about 54 percent of voters cast their ballots for Donald Trump in 2016. Evans is also transgender, as are about 1 million other adult Americans, according to rough estimates. Few combine the two identities. Evans is believed to be the lone openly transgender elected Republican — “my cross to bear,” as she puts it.

I am afraid,” the Republican politician said in an interview. “I’m absolutely distraught.”

“Not so much afraid for me," clarified Evans, who has been embraced by those closest to her since she first came out as transgender in 2013 and began to medically transition in 2015. "I’m afraid for people who are younger than me — people who don’t have the kind of experiences in the world that I’ve had. They see this, and they’re rightfully terrified.”

She said she has been encouraged by the swift response from the transgender community.

Evans acknowledged being envious of the outpouring of support on the other side of the partisan divide. “Every so often,” she said, she is tempted to abandon the Republicans. “It would be easier, wouldn’t it?”

Where she stands now, she is held at arm’s length by both of the communities that are most important to her.

“I’m met with disdain from Republicans because of my identity and suspicion from the transgender community because of my affiliation,” she said.

Though she voted for Gary Johnson, the Libertarian Party’s candidate for president in 2016, she acknowledges that Trump is "the head of the party” to which she has been loyal almost her entire adult life, but which is increasingly hostile to her, she said.

But she has no plans to jump ship. She sees an advantage in sticking with a party that remains less welcoming of transgender people. She enjoys access to people whom the movement most desperately needs to convince — people unreachable by her Democratic counterparts.

Evans also reasons that her views, while consistent with many of the aspirations of the Democratic Party, arise from conservative principles. Her work, she said, lies in persuading other Republicans to adhere to these principles, which mainly revolve around a commitment to limited government.

“For trans people to be phased out of existence, that would be a violation of individual rights,” she said. “How can we stand for individual liberties if we are ready and willing to use the force of government — completely antithetical to what Republicans believe — to deny someone’s ability to exist in our society? As Republicans, we should be appalled at that.”

Part of the burden of being a transgender Republican, Evans said, is to recruit more transgender candidates to run for office.

But it’s a small pool. “I’ve been called the unicorn before,” she said.

Running in Republican circles as a transgender person can be a lonely, and sometimes frightful, experience, she said. At this year’s Conservative Political Action Conference, an annual summit for conservative officials and activists, Evans was confronted by someone from what she described as a “far-right nationalist group.”

“He called me the downfall of the West to my face,” she recalled. This encounter was jarring, however, precisely because it wasn’t representative of her overall experience. She has been attending CPAC for years, she said, and has found support from some of the people she has met there, especially younger conservatives.

Evans vowed early on that she would praise Trump when he did something well and speak out against him when he acted in ways that were contrary to her interests and beliefs.

Who will be next?