By Natasha Bach
October 22, 2018

The Trump administration may roll back Obama-era protections for transgender people, defining gender as a “biological, immutable condition determined by genitalia at birth,” according to a leaked memo draft obtained by The New York Times.

The Law As It Stands

Under the Obama administration, the legal conception of gender in federal programs was loosened. Individuals were largely allowed to define their own gender as opposed to it being confined to the sex with which they were assigned at birth.

The administration argued that Title IX, the 1972 law that forbids discrimination based on gender, applied also to transgender individuals. A 2016 guidance further invoked Title IX in which it required schools to allow transgender students to use the facilities of their chosen gender.

A month after President Trump took office, his administration withdrew the guidance, claiming that it didn’t “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.”

What Would Change

The new proposal, spearheaded by the Department of Health and Human Services, would take this one step further, establishing a legal definition of sex under Title IX.

According to the Times, the memo argues that government agencies should be obligated to define gender “on a biological basis that is clear, grounded in science, objective, and administrable.”

Sex would be defined as male or female and unchangeable: “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.” Genetic testing would be employed to solve any disputes.

But that’s not all. The Education Department has reportedly been drafting its own changes to Title IX, looking specifically at the issue of sexual assault in schools. The rules are expected to “narrow the definition of sexual assault that schools are required to adjudicate, and to provide more rights to those accused of assault,” according to The Wall Street Journal.

The Education Department intends to publish the changes within weeks. Meanwhile, the HHS proposal could be released at any time before the end of the year.

The Implications

HHS has reportedly called on the four primary government departments that enforce Title IX—Education, Justice, HHS, and Labor—to adopt the new definition to establish uniformity. Should the plan move forward, the approximately 1.4 million Americans who identify themselves with a gender different from the sex into which they were born would effectively lose federal recognition of their identity.

In addition to federal recognition, transgender people would be at risk of losing a number of civil rights protections, which could impact everything from which locker room and bathroom they’re allowed to use, to which sports teams they can play on. This could further compound the changes several government agencies have made under the Trump administration, withdrawing policies enacted by the previous administration that recognized gender identity in schools, prisons, and homeless shelters.

To be clear, HHS has yet to issue the proposal and even once it does, the administration is expected to face a legal challenge to the changes, which may delay their implementation.

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