On Sunday, October 21, The New York Times reported that the Trump Administration is preparing to redefine the term “sex” for the purposes of several key government agencies. This redefinition is out of step with science, medicine and the law—and it is intended to not only to eliminate protections for transgender and intersex people, but to stop recognizing transgender and intersex people all together.
What is proposed redefinition of “sex” proposed by the Trump Administration?
The federal Department of Health and Human Services (HHS) would redefine sex as “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.” The agency is promoting this redefinition of “sex” across other federal agencies, including the Departments of Justice, Housing, Education, and Labor, which implement and enforce key nondiscrimination laws across the country.
How do transgender and intersex people fit into this redefinition of sex?
This redefinition would mean that the sex marked on an individual’s birth certificate at birth would be the only way they recognized by the federal government, regardless of their gender identity, the gender they live every day, or the clear medical and scientific consensus that transgender people are who they say they are, or what their ID documents say. This redefinition would negate a transgender person’s identity. For example, a transgender woman who has lived as a woman for 40 years would be treated as a man for the purposes of federal law regardless of her gender identity, and even if her birth certificate, driver’s license, and passport had all been updated to reflect her identity as a woman.
The Trump Administration’s redefinition of sex also runs counter to the medical understanding of sex, genetics and the biological diversity of human beings, particularly for intersex people. Take the example of an infant born with sex-chromosomal anomalies like XXY or XYY, or the thousands of intersex people who are born with so-called “ambiguous genitalia.” Intersex people have worked for decades for the right to be who they are, and to not be forced to undergo unnecessary, painful, and irreversible surgeries–often as infants or without their consent–simply so they can be made to fit into a box on a birth certificate. This redefinition of sex advanced by the Trump Administration flatly ignores the biological diversity and very existence of intersex people.
In short, the Trump administration is working to ensure that trans and intersex people don’t fit into this redefinition at all. This is an effort not only to eliminate protections for trans and intersex people, but to stop recognizing trans and intersex people all together.
What would this redefinition of sex mean for federal laws and protections for Americans?
The proposed redefinition of “sex” would impact programs administered by the Department of Health and Human Services, which oversees protections in health care. If, however, the Trump Administration were to use this redefinition across the other federal agencies, this would mean that the federal government would back away from protecting transgender and intersex people from discrimination across a wide range of settings and instead enforce a view of sex that limits the type of programs, services and benefits that transgender and intersex people could pursue through administrative agencies.
There are many laws that prohibit discrimination on the basis of sex and these laws are designed to ensure that all people have the ability to go to work (Title VII of the Civil Rights Act of 1964), be paid fairly (Equal Pay Act of 1963), and take time off to care for themselves or a loved one (Family and Medical Leave Act); to pursue an education (Title IX of the Education Amendments of 1972), to access health care (the Affordable Care Act), to get credit (Equal Credit Opportunity Act), and to find housing (Fair Housing Act). These federal laws are supposed to be enforced by the federal government through Departments of Justice, Housing, Labor, Education, and Health and Human Services through civil rights offices and other enforcement offices. If all of these agencies and their offices tasked with enforcing federal law adopt this redefinition of “sex,” it means that the federal government is removing protections for both transgender and intersex people in terms of these vital laws, and preventing them from the equal treatment that a growing number of courts agree they are entitled to under federal law.
What can be done? What about the courts? Or states that want to protect transgender and intersex people?
A growing number of federal courts have ruled that discrimination based on sex includes discrimination based on someone’s gender identity and expression. These courts have taken into consideration the science and medical community’s understanding of sex as well as the lived experience of transgender people. Regardless of the Trump Administration’s redefinition of sex, those court decisions in five circuits, covering 23 states, would remain binding. And the proposed changes do not alter the actual statutes of laws prohibiting discrimination. Only the courts or Congress can interpret or alter the statutes.
Nothing about the administration’s redefinition of sex would preclude Congress, state legislatures, or even city councils from passing nondiscrimination laws and ordinances that explicitly protect people from discrimination based on gender identity, gender expression, or sex. Currently 50% of LGBT people live in states that lack any explicit laws prohibiting discrimination based on gender identity in employment, housing, and public accommodations.
What happens next?
The administration is still drafting regulations that would enshrine this redefinition. When they are published in the federal register, individuals and organizations will have an opportunity to emphasize the science, medical, and legal consensus that the proposed redefinition of sex is out of step.
Additionally, it is important to continue to increase the public’s familiarity with transgender people and intersex people. They are our neighbors, coworkers, and children. Learn more about what it means to be transgender and intersex.
How can you support transgender and intersex people?
Now is the time tor raise your voice in support for transgender and intersex people. Express your personal support through phone calls and emails, both to your transgender and intersex friends, and to your elected officials. Donate to the National Center for Transgender Equality and the ACLU, who are leading the effort to ensure visibility, accessibility, and legal equality for transgender people, and to InterAct, which advocates for intersex youth.