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Transgender rights under attack: federal definition of gender could change, and roll back civil rights protections

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Transgender activists have been protesting for their human rights for decades, but events throughout this administration have reinvigorated the entirety of the LGBTQ community. Above, a Chicago protest in response to the Charlottesville white supremacist rally of 2017. - SHUTTERSTOCK.COM
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  • Transgender activists have been protesting for their human rights for decades, but events throughout this administration have reinvigorated the entirety of the LGBTQ community. Above, a Chicago protest in response to the Charlottesville white supremacist rally of 2017.

Once again, the Trump administration has proven that it does not view or value transgender individuals as human beings entitled to equal rights and protections. The latest in a long series of attacks on transgender rights could roll back progress made on anti-discrimination and civil rights efforts in recent years, and leave transgender people — an estimated 1.4 million individuals — without equal protection under the law.

On Oct. 21 The New York Times broke a story about a memo that has been circulating through the Department of Health and Human Services since the spring. This memo sets out to establish a legal definition of “sex” under Title IX (the federal civil rights law that bans gender discrimination in federally funded education programs), and it has caused an immediate uproar in the LGBTQ community, specifically the transgender population. The administration will attempt — to paraphrase The New York Times — to “define transgender people out of existence,” and to bar them from the tentative legal protections they have had in the past.

Under the Obama administration, Title IX’s definition of gender discrimination was often interpreted to include discrimination based on gender identity and sexuality. This interpretation, often used as precedent in issues even unrelated to Title IX, allowed transgender individuals to stand up in court when their rights were violated. And again and again courts at all levels of the legal system verified that these claims of discrimination were valid.

Now, this memo suggests the Trump administration plans to constrict — or, more accurately, entirely erase — transgender peoples’ options for justice and equality under Title IX and beyond.

The New York Times wrote on Sunday:

The department [of Health and Human Services] argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.” The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.

This narrow, backwards definition of sex (that not only excludes transgender individuals, but also intersex individuals who often do not fit into either a male or female binary at birth) could soon be adopted by departments across the federal government. Should these agencies adopt the definition set out in the drafted memo, it would become unquestionably legal at the federal level to discriminate against transgender people in housing, employment, education and every other area of life in which discrimination already disproportionately affects transgender people.

According to the 2015 U.S. Transgender Survey conducted by the National Center for Transgender Equality, the rate of unemployment in the transgender population is as large as 15 percent, three times the unemployment rate of the U.S. population. And only about 16 percent of the transgender population owns their own homes, in contrast to 63 percent of the wider population. Even with previous protections, the discrimination already exists, and already affects valuable members of our community. This would ensure that those people have no legal recourse.

Should the Justice Department choose to adopt this rule, and apply it to other agencies, we could see a wide-reaching lack of federal protection in a time of political turmoil that already puts the lives and livelihoods of transgender people at risk.

On social media, the hashtag #WontBeErased has been circulating via transgender people and organizations dedicated to standing up against this attack; and this morning, activists from the National Center for Transgender Equality, the Human Rights Campaign and many others converged on the White House to protest. Once again, transgender people must carry their banners and demand to be considered human beings.


NCTE’s executive director Mara Keisling released a statement about the memo on Oct. 21. It read, in part:

At the heart of our work at NCTE is the belief that no one should have to suffer just to be true to themselves. And yet transgender people are still often forced from their homes, fired from their jobs, harassed at their schools, and denied the most basic level of dignity by a broken system. Knowing this, millions of transgender people wake up every day and step into an uncertain world. This is the most common trait shared by transgender people: A strength and resilience for hard and difficult times. If this administration is hoping to demoralize us, they will be disappointed. If they are hoping we will give up, they should reconsider the power of our persistence and our fury.

Read this excerpt, and read the reactions of other transgender individuals who are standing up for their rights. It might be easy for those who are not transgender themselves to ignore or overlook another in a long series of atrocities committed by this administration, but anyone who cares about human rights should, and must, commit to fighting this.

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