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Transgender rights at risk with changes to legal definition of sex

LGBT, Politics

Since taking office, the Trump administration has made several changes that have impacted people in the LGBTQ community including rescinding protections for transgender youth in schools, and attempting to bar transgender people from serving in the military. Many members of the LGBTQ community have raised concerns that reversals by the administration are designed to roll back rights and protections that were granted to them by previous administrations.

In October, the Trump administration took what is perhaps its most consequential step on transgender rights through the Department of Health and Human Services: attempting to create a legal definition of sex under Title IX. According to the New York Times, the definition would limit sex as either male or female determined by a person’s genitals at birth. This new definition would essentially revoke federal recognition of the nearly 1.4 million transgender Americans.

Previous affirmations of transgender rights

The transgender community had experienced what seemed to be multiple affirmations of their rights in recent years.

  • In May 2012, the United States Equal Employment Opportunity Commission (EEOC) issued an opinion in which the agency held that a “complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII” of the Civil Rights Act of 1964.
  • In July 2014, President Barack Obama signed an executive order making it illegal to harass or fire employees of federal contractors based on gender identity or sexual orientation, and prohibited discrimination against transgender employees of the federal government.
  • The United States Supreme Court’s landmark 2015 decision in Obergell v. Hodges held that the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution guaranteed the right of same-sex couples to marry.

New administration, new changes

A number of decisions by the Trump administration have caused concern among transgender individuals as to how their rights will be protected moving forward.

  • One month after Trump took office, the Civil Rights Division of the DOJ and the Office for Civil Rights of the United States Department of Education issued a Dear Colleague letter that rescinded previous guidance that prohibited discrimination based on a student’s gender identity, and had allowed transgender students to use restrooms at their schools that corresponded with their gender identity.
  • In July 2017, President Trump announced through a series of tweets that the United States would not accept or allow transgender individuals to serve in any capacity in the U.S. Military.
  • In October 2017, United States Attorney General Jeff Sessions issued a memorandum ordering the DOJ to take the position that transgender people were not protected by Title VII of the Civil Rights Act. “this is a conclusion of law, not policy,” the memo stated.
  • In March 2018, President Trump signed a presidential memorandum that stated “transgender persons with a history or diagnosis of gender dysphoria—individuals who the policies state may require substantial medical treatment, including medications and surgery—are disqualified from military service except under certain limited circumstances.” Four different courts subsequently blocked the ban.

Consequences of a change in the legal definition of sex

Changes to the legal definition of sex as most recently proposed by the Trump administration could impact an estimated 1,397,150 adult Americans who identify as transgender.

According to the memo obtained by the New York Times, the policy change would make the definition of “male” or “female” legally unchangeable after being clearly defined by one’s genitals present at birth. Any disputes regarding one’s sex would require genetic testing.

To date, no official actions have been taken, and it is likely that if the changes outlined were to be implemented, they would face legal challenges in court.