A Sunday New York Times article revealed that the Trump administration is planning to impose a rule that would effectively erase the existence of transgender people under the law. Though the Times did not share the full memo draft it had reviewed, it detailed the memo’s plan to define sex across agencies as “either male or female, unchangeable, and determined by the genitals that a person is born with” — subject to genetic testing.
It’s the equivalent of imposing North Carolina’s HB2 at the federal level, dictating that transgender people can never be respected under the law according to their gender identity. It’s also entirely unclear how intersex people would fit into this “federal registry of genitals,” given their genitals and genes would likely not place them neatly into a “male or female” category.
Understandably, this report prompted terror and outrage across the LGBTQ community, with the ACLU promising to immediately sue if such regulations actually drop. But what’s particularly terrifying about is that the scope is so broad. While the memo reflected how the Department of Health and Human Services (HHS) hopes to interpret Title IX’s education protections, it calls for adopting “an explicit and uniform definition of gender” across all federal agencies.
The Trump administration has already taken steps to roll back transgender protections in piecemeal ways. For example, the Department of Education rescinded its guidance protecting transgender students under Title IX and stopped hearing their discrimination complaints entirely, the Bureau of Prisons rescinded protections for transgender prisoners, the Department of Justice (DOJ) is working to undo transgender health care protections found in the Affordable Care Act, and the Department of Housing & Urban Development has delayed implementing homeless shelter protections for transgender people. The DOJ has already begun arguing that employment discrimination against transgender people should be legal, and President Trump himself dictated a ban on transgender people serving in the military, which the administration continues to fight for.
The new memo suggests an attempt to codify this transphobia across the entire federal government. This would impact not only Title IX’s education protections, but Title VII’s employment protections, the health care protections under Section 1557 of the Affordable Care Act, and every single law that protects against discrimination on the basis of sex. The reality is that if these protections do not apply to people according to their gender identity, they would not apply to transgender people at all.
The question of whether protections on the basis of “sex” include “gender identity” is one many federal courts have wrestled with. In recent years, they have repeatedly concluded that the two are inextricably linked for a pretty simple reason: A school, employer, landlord, or health care provider can’t make a decision to treat a transgender woman differently from a cisgender woman without making a stereotypical distinction based on sex.
For example, the U.S. Court of Appeals for the Seventh Circuit ruled last year against a Wisconsin school that tried to segregate a transgender student, explaining, “A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non‐conformance, which in turn violates Title IX.” The school had forced the student to only use a gender-neutral restroom, and the Court noted that this subjected him to “different rules, sanctions, and treatment than non‐transgender students, in violation of Title IX.”
In another recent case that may be headed to the Supreme Court, the U.S. Court of Appeals for the Sixth Circuit ruled that a Michigan funeral home’s discrimination against a transgender employee was illegal under Title VII. When Aimee Stephens began transitioning, she sought to follow the funeral home’s dress code for women, but because the funeral home owner refused to recognize her gender identity, he fired her for not following the men’s dress code. The Court rejected the funeral home’s argument that she was merely fired over the dress code. “Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code,” the Court wrote. “The answer quite obviously is no.”
But if the Trump administration implements this sweeping rule about how “sex” should be defined in these laws, discrimination cases like these could end up being decided the other way. Historically, courts have deferred to federal agencies’ interpretation of their own policies — though the new conservative majority on the Supreme Court may be primed to reverse this precedent of deference. In the meantime, at least, courts may feel bound to defer to the government’s definition of “sex” rather than applying their own reasoning to the cases before them.
In the case of Stephens, for example, the rule would mean that she was only being held to the same standard as other “biological” men, so she wasn’t experiencing discrimination by being required to wear the men’s uniform. This is why so many responded to the memo by describing it as “erasing” transgender people under the law. Stephens is not a man — and would not file a complaint claiming she was treated unfairly as a man — so the rule would negate any protection she could actually find as a woman under Title VII.
It’s worth noting that the narrow definition of sex may also have consequences for lesbian, gay, and bisexual people who are not transgender. Courts have similarly ruled that “sex” includes sexual orientation based on the Supreme Court’s precedent that discrimination on the basis of “sex” includes sex stereotyping, such as treating a woman differently because she doesn’t act womanly enough.
In another employment discrimination case possibly heading to the Supreme Court, the U.S. Court of Appeals for the Second Circuit ruled earlier this year that this applied to a skydiving instructor who was fired for being gay. “We now conclude that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination,” the Court wrote. “Sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be, which is an impermissible basis for adverse employment actions.”
If the rule narrowly defines sex according to biology, as the memo suggests, it could also override the precedent that courts examine sex stereotyping in discrimination cases. This would essentially erase protections for the entire LGBTQ community, and possibly undermine important protections for women as well.
The ramifications for this erasure would be countless. The Human Rights Campaign noted just a few of these possibilities, such as ways that LGBTQ people could be legally denied access to basic health care or legally subjected to harassment in the workplace. It could likewise impact access to accurate passports, social security, and any other service the federal government administers that involves a gender identification marker.
It’s not an exaggeration that this change would legally write transgender people out of existence as far as the federal government is concerned. The National Center for Transgender Equality’s Mara Keisling called the proposal “an abomination, a reckless attack on your life and mine.” But she also noted that the administration cannot erase the rapid growth of visibility of transgender people nor the growing awareness about their lives throughout society. “If they are hoping we will give up, they should reconsider the power of our persistence and our fury,” she said.