Trump administration attacks on transgender people continues

Since he was inaugurated, President Trump and his administration have done just about everything they can do to reverse the LGBT+ rights supported by the Obama administration. They have been particularly harsh on transgender persons.

• Trump himself continues to attempt to prevent transgender persons from serving in the armed forces (See Trump order would ban most transgender troops from serving)
• Attorney General Jeff Sessions has said civil rights law does not apply to transgender people (See Sessions: Civil rights law doesn't protect transgender workers and Sessions gets law dead wrong on transgender protections)
• The Education Department, under anti-LGBT Secretary Betsy DeVos has said it will not protect the rights of transgender students (See Education Department says it will reject transgender student bathroom complaints)
• Health and Human Services has legally challenged civil rights protections for transgender people that are included in the Affordable Care Act, often called Obamacare.

Now the administration is planning to make transgender people invisible, according to The New York Times. The paper reported that the Trump administration “is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth.”

The draft policy would 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. The proposed wording is, “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth. 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.”

Any dispute about one’s sex would have to be clarified using genetic testing.

The proposed action is being discussed despite numerous court rulings at both the district and appeals court level that say the term “sex” in Title IX includes sexual orientation and gender identity. Title IX prohibits discrimination against people based on a number of categories, including sex.

“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,” according to the Times.

The Department of Health and Human Services Office of Civil Rights (OCR) appears to be heading the effort. The HHS/OCR is headed by its ultra-conservative director, Roger Severino. He comes to the job from The Heritage Foundation, a conservative think-tank, and its DeVos Center for Religion and Civil Society. He was previously chief operations officer and legal counsel for the Becket Fund for Religious Liberty.

While he was the head of the DeVos Center, Severino fought the Obama administrations expansion of sex to include gender identity, which he called “radical gender ideology,” the Times reported.

Severino hopes that by adopting his definition of sex, other agencies will follow suit. The proposed language has not been reviewed by the Justice Department, but considering the public comments by Sessions over the last 20 months, the DOJ is likely to approve it.

Civil rights organizations are not sitting on their hands in this fight. The Times says, “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 anti-transgender bias constitutes sex discrimination under federal laws like Title IX.’”

The Human Rights Campaign reacted to the Times story by releasing a statement, It said in part, “’Setting a destructive precedent, the Trump-Pence administration intends to erase LGBTQ people from federal civil rights protections and eviscerate enforcement of non-discrimination laws,’ said HRC President Chad Griffin. ‘Defining ‘sex’ in this narrow language tailored to the talking points of anti-equality extremists is part of a deliberate strategy to eliminate federal protections for LGBTQ people.

“’This is a direct attack on the fundamental equality of LGBTQ people and, if this administration refuses to reverse course, Congress must immediately take action by advancing the Equality Act to ensure that LGBTQ people are explicitly protected by our nation’s civil rights laws.’”

The memo written by HHS/OCR is expected to be released this Fall for public comment, which will be open for 60 days.

The Gayly will continue to follow this story. Watch for updates at www.gayly.com and in our print edition.

Copyright The Gayly – October 21, 2018 @ 4:30 p.m. CDT.