Trump Administration May Define Gender

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 13, 2018

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According to the New York Times, the Trump administration is considering whether to define “gender” for legal purposes to include only a biological, unchangeable condition determined by a baby’s genitalia at birth.

As the Times notes,

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.

As I discussed in a previous blog, the Sixth Circuit has ruled that transgender people are protected by a federal civil rights law that forbids workplace discrimination on the basis of sex (or gender). Discrimination based on sexual identity was thus considered equivalent to discrimination based on whether a person was born a man or a woman.

And as I discussed in another blog, an Oregon federal judge ruled that forcing transgender students to use bathrooms and other facilities designated for the genders they were assigned at birth violates their civil rights.

Transgender Students

In February of 2017, President Trump removed federal protections for transgender students that allowed them to use bathrooms corresponding to their current gender identities.

The US Department of Health and Human Services (HHS) is now seeking to define “sex” under Title IX – the federal law that prohibits sex discrimination in education programs that receive government funding.

The Department proposes to define sex as either male or female, as determined by a person’s genitals at birth, with any lack of clarity to be resolved via genetic testing.

According to an HHS memo,

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.

About 1.4 million Americans — whether or not they have had genital surgery — recognize themselves as a gender other than the one they were assigned at birth.

Gender Identity

According to the Times,

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.

Harper Jean Tobin, the policy director of the National Center for Transgender Equality, called the proposed new definition “an extremely aggressive legal position that is inconsistent with dozens of federal court decisions,” the Times reported.

In a legal memo to the Trump 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.

According to the Times, the move by the Department was in response to those pro-transgender-rights court decisions.

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