The Department of Health and Human Services (HHS) is sponsoring a campaign to establish a legal definition of sex under Title IX. Title IX is the federal civil rights law that bans gender discrimination in education programs that receive federal funds.
With this definition, the Trump administration is attempting to define gender as a biological, immutable condition determined at birth that cannot be changed. This definition would virtually erase federal recognition of around 1.4 million Americans who identify with a gender other than the one they were born into.
The government has argued in a memo obtained by The New York Times that government agencies need to use a uniform and clear definition of gender that is determined “on a biological basis that is clear, grounded in science, objected and administrable.”
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” said the department in the memo, which was drafted and has been circulating since last spring. “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.”
This change would significantly roll back efforts by the Obama administration to expand the legal concept of gender in federal programs. This represents the latest in a series of efforts to exclude this population from civil rights protections and rescind on Obama-era policies.
“This takes a position that what the medical community understands about their patients — what people understand about themselves—is irrelevant because the government disagrees,” said Catherine E. Lhamon in the New York Times. Lhamon led the Education Department’s Office for Civil Rights in the Obama administration.
Officials at the Department of Health and Human Services have said that their effort to limit the definition of sex has resulted from their own interpretation of the laws.
“Transgender people are frightened,” said Sarah Warbelow, the legal director of the Human Rights Campaign, which presses for the rights of lesbian, gay, bisexual and transgender people, in the New York Times. “At every step where the administration has had the choice, they’ve opted to turn their back on transgender people.”
The HHS Department has relied on the “Big Four” agencies that enforce parts of Title IX, including the Departments of Education, Labor, Justice and Health and Human Services, to adopt the definition in regulations.
The definition is particularly important to two proposed rules within the Trump administration. One deals with complains of sex discriminations in schools receiving federal money, and the other deals with health programs that receive federal funds. These rules could be issued with the force of law, which include the new gender definition.
The Department of Health and Human Services plans to formally introduce the rule to the Justice Department. If the Justice Department decides the new definition is legal, then the change will be enforced in Title IX and in government agencies.
Harper Jean Tobin, the policy director of the National Center for Transgender Equality was quoted in the New York Times, calling the move, “an extremely aggressive legal position that is inconsistent with dozens of federal court decisions.”