‘Transgender’ Could Be Defined Out of Existence Under Trump Administration

[Ashleyxoxo]

https://www.nytimes.com/2018/10/21/u...efinition.html

WASHINGTON — 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.

“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.”

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.

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“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.
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For the last year, the Department of Health and Human Services has privately argued that the term “sex” was never meant to include gender identity or even homosexuality, and that the lack of clarity allowed the Obama administration to wrongfully extend civil rights protections to people who should not have them.
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Roger Severino, now at the Department of Health and Human Services, was among the conservatives who blanched at the Obama administration’s expansion of sex to include gender identity.CreditAaron P. Bernstein/Getty Images

Roger Severino, the director of the Office for Civil Rights at the department, declined to answer detailed questions about the memo or his role in interagency discussions about how to revise the definition of sex under Title IX.

But officials at the department confirmed that their push to limit the definition of sex for the purpose of federal civil rights laws resulted from their own reading of the laws and from a court decision.

Mr. Severino, while serving as the head of the DeVos Center for Religion and Civil Society at the Heritage Foundation, was among the conservatives who blanched at the Obama administration’s expansion of sex to include gender identity, which he called “radical gender ideology.”

In one commentary piece, he called the policies a “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.”

“Transgender people are frightened,” said Sarah Warbelow, the legal director of the Human Rights Campaign, which presses for the rights of lesbian, gay, bisexual and transgender people. “At every step where the administration has had the choice, they’ve opted to turn their back on transgender people.” After this article was published online, transgender people took to social media to post photographs of themselves with the hashtag #WontBeErased.
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[Read more about the L.G.B.T. community’s reaction to the proposal.]

The Department of Health and Human Services has called on the “Big Four” agencies that enforce some part of Title IX — the Departments of Education, Justice, Health and Human Services, and Labor — to adopt its definition in regulations that will establish uniformity in the government and increase the likelihood that courts will accept it.

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.

After more than a year of discussions, health and human services is preparing to formally present the new definition to the Justice Department before the end of the year, Trump administration officials say. If the Justice Department decides that the change is legal, the new definition can be approved and enforced in Title IX statutes, and across government agencies.

The Justice Department declined to comment on the draft health and human services proposal. The Justice Department has not yet been asked to render a formal legal opinion, according to an official there who was not authorized to speak about the process.

But Attorney General Jeff Sessions’s previous decisions on transgender protections have given civil rights advocates little hope that the department will prevent the new definition from being enforced. The proposal appears consistent with the position he took in an October 2017 memo sent to agencies clarifying that the civil rights law that prohibits job discrimination does not cover “gender identity, per se.”

Harper Jean Tobin, the policy director of the National Center for Transgender Equality, an advocacy group, called the maneuvering “an extremely aggressive legal position that is inconsistent with dozens of federal court decisions.”
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A transgender flag outside a bar in Brooklyn. 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.CreditAnnie Tritt for The New York Times

[Two weeks before the midterms, transgender people say they feel like ‘pawns.’]

Health and human services officials said they were only abiding by court orders, referring to the rulings of Judge Reed O’Connor of the Federal District Court in Fort Worth, Tex., a George W. Bush appointee who has held that “Congress did not understand ‘sex’ to include ‘gender identity.’”

A 2016 ruling by Judge O’Connor concerned a rule that was adopted to carry out a civil rights statute embedded in the Affordable Care Act. The provision prohibits discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance.

But in recent discussions with the administration, civil rights groups, including Lambda Legal, have pointed to other court cases. In a legal memo presented to the administration, a coalition of civil rights groups wrote, “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.”

Indeed, the health and human services proposal was prompted, in part, by pro-transgender court decisions in the last year that upheld the Obama administration’s position.

In their memo, health and human services officials wrote that “courts and plaintiffs are racing to get decisions” ahead of any rule-making, because of the lack of a stand-alone definition.

“Courts and the previous administration took advantage of this circumstance to include gender identity and sexual orientation in a multitude of agencies, and under a multitude of laws,” the memo states. Doing so “led to confusion and negative policy consequences in health care, education and other federal contexts.”

The narrower definition would be acutely felt in schools and their most visible battlegrounds: locker rooms and bathrooms.

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.”

The Education Department did not respond to an inquiry about the health and human services proposal.

Ms. Lhamon of the Obama Education Department said the proposed definition “quite simply negates the humanity of people.”

This is why I hate Trump.

[Underverse]

Why not just use sex instead of gender to denote biological characteristics? Or is that confusing for some people?

[GreenGoldSharpie]

Why not just use sex instead of gender to denote biological characteristics? Or is that confusing for some people?

Because we generally don't want the government declaring open season on trans people anymore than they already do, particularly regarding healthcare.

[Breccia]

Thank you to the LGBT community! I will fight for you while Hillary brings in more people that will threaten your freedoms and beliefs.

[Pannonian]

If we declare that Bone Spurs are no real deal, and they should just man up, can we drop Trump into Korea?

[Felya]

Wait... weren’t liberals supposed to do that to marriage? Bastards projecting again...

[Kathandira]

I'll briefly throw this in there before this is inevitably closed (Gender discussions are a forbidden topic).

There is a lot more research into Gender and Sex these days, and if these studies begin to direct the way society views Sex and Gender, it's only going to get more complicated from here on out. I'm not against that, but I know there are plenty of people who don't care enough, and want to keep it simple (Binary). The way it is right now (2 sexes) isn't exactly how it is. We use the simply binary approach because it is easier to digest, but Sex is far more complicated that Penis or Vagina.

I honestly think the masses aren't ready to expand upon it, but I also think we don't need to simplify it anymore than it already is.

[Ashleyxoxo]

Why not just use sex instead of gender to denote biological characteristics? Or is that confusing for some people?

Some people take on a gender identity different from their sex. Trump wants to say that everyone's gender is the same as their sex, i.e., that gender identity doesn't exist.

[JohnBrown1917]

But he hugged an LGBT flag!

[Ashleyxoxo]

But he hugged an LGBT flag!

Yes, he does that a lot (publicly 'support' people that he f*cks over in action).

[Blur4stuff]

At this point any lgbt person that supports the GOP, and especially Trump, must really hate themselves. The kind of self hate that truly requires professional help.

If they don't like all of dem's policies that's fine, but that doesn't mean you side with people that get excited at the idea of you burning in hell.

[Forogil]

There is a lot more research into Gender and Sex these days, and if these studies begin to direct the way society views Sex and Gender, it's only going to get more complicated from here on out. I'm not against that, but I know there are plenty of people who don't care enough, and want to keep it simple (Binary). The way it is right now (2 sexes) isn't exactly how it is. We use the simply binary approach because it is easier to digest, but Sex is far more complicated that Penis or Vagina.

True, biology is rarely that simple: even in terms of sex chromosomes there are other variations than XX and XY - but about 0.1%; and there are some rare chimeras (perhaps one in a million) that have both about evenly in their body.

Some think that those genetic variations don't exist - and some that the genes don't matter; neither are right.

[Kathandira]

True, biology is rarely that simple: even in terms of sex chromosomes there are other variations than XX and XY - but about 0.1%; and there are some rare chimeras (perhaps one in a million) that have both about evenly in their body.

Some think that those genetic variations don't exist - and some that the genes don't matter; neither are right.

Indeed. Like I said, I don't think we aren't ready to expand to the full extent of the spectrum. It is easier to keep Sex binary. Which is the only thing I personally see as important in a medical/legal documentation sense. Maybe one day in the future Sex can be expanded to cover all of the possibilities. But at the moment, I think we have other more pressing matters to be concerned with in regards to legislation and care for the public.

[Skroe]

The biology argument, while important, is besides the point in this case.

The state being able to define what a person is or isn't without their consent is an even larger issue, because if the state can do that to LGBTs, it can do that to anybody.

How is this conservative again, @Dacien? Ya know, big government, telling taxpayers what they are?

.

[Xyonai]

Guess the GOP has moved onto the next Minority that it's still politically trendy to shit on.

[GreenGoldSharpie]

The biology argument, while important, is besides the point in this case.

The state being able to define what a person is or isn't without their consent is an even larger issue, because if the state can do that to LGBTs, it can do that to anybody.

How is this conservative again, @Dacien? Ya know, big government, telling taxpayers what they are?

.

The big worry is that if state governments begin deciding we're "mentally ill" and determining whether or not we're qualified to hold a professional license like those required by nurses, doctors, and teachers.

This is an extremely dangerous route to begin taking.

[Skroe]

The big worry is that if state governments begin deciding we're "mentally ill" and determining whether or not we're qualified to hold a professional license like those required by nurses, doctors, and teachers.

This is an extremely dangerous route to begin taking.

Yep. Precisely. And this is why government has no role in deciding what people are or aren't.

[Ashleyxoxo]

How is this conservative again, @Dacien? Ya know, big government, telling taxpayers what they are?

.

It's conservative that Trump reversed transgender bathroom laws, in which the government gave transgender people the right to use whatever bathroom matches their gender identity.

[Orlong]

The big worry is that if state governments begin deciding we're "mentally ill" and determining whether or not we're qualified to hold a professional license like those required by nurses, doctors, and teachers.

This is an extremely dangerous route to begin taking.

And most people who live somewhere other than New York, LA, and San Francisco wouldnt want a trans person providing medical care to them, or teaching their kids and indoctrinating them to the LGBT lifestyle

[Skroe]

And most people who live somewhere other than New York, LA, and San Francisco wouldnt want a trans person providing medical care to them, or teaching their kids and indoctrinating them to the LGBT lifestyle

Now swap "trans person" out for "blacks".

Your un-American bigotry is something to be surpassed.

You are something to be surpassed.