The U.S. Department of Health and Human Services has reportedly prepared a proposal to limit the identification of a person’s gender to include only “male” or “female,” based on what genitals the person was designated as having at birth.
Mara Keisling, executive director of the National Center for Transgender Equality, says the proposal would be “effectively abandoning” the right of 2 million transgender people to “equal access to health care, to housing, to education, or to fair treatment under the law.”
The existence of the proposal was first reported by the New York Times on Sunday, October 21.
The Times did not include the full text of the proposal or any indication of what office or person drafted it. But such a proposal would not be out of character in the Trump administration.
The Trump administration has taken a number of steps aimed specifically at ending recognition of transgender people under federal law. Last year, President Trump announced his plans to ban transgender people from the military. Last October, U.S. Attorney General Jeff Sessions issued a memo to declare that federal law prohibiting discrimination based on sex in employment does not prohibit “discrimination based on gender identity per se.” Last December, reports emerged that the Trump administration banned budget documents from the Centers for Disease Control and Prevention from using the word “transgender.” At HHS, the administration removed from at least two federal health surveys questions that would identify data specific to LGBTQ people. It also announced it would no longer interpret the Affordable Care Act to prohibit discrimination based on gender identity.
In May 2016, HHS under then-President Obama issued regulations stating that the Affordable Care Act’s prohibition on discrimination includes transgender people. ACA Section 1557 prohibits discrimination in health care on the basis of race, color, national origin, sex, age, and disability. The HHS rules under the Obama change stated that discrimination based on “gender identity” is a form of discrimination based on sex. The final regulations defined “gender identity” as “an individual’s internal sense of gender” and noted that this “may be male, female, neither, or a combination of male and female.” And they defined “transgender identity” to be when gender identity is different from the person’s physical sex attributes at birth.
The Wall Street Journal reported that HHS’s proposed draft was aimed at ensuring the ACA would no long include non-discrimination language on gender identity and would seek to apply a similar restriction in other federal laws, such as Title IX of the Education Amendments Act, barring sex discrimination in education. But, according to the Journal,the department of Education, including Secretary Betsy DeVos, has resisted adopting the HHS proposal.
The Journal said the Department of Education will be publishing its proposed interpretation of Title IX “within weeks,” in regards to how schools should handle sexual assault allegations. HHS’s proposal could be released “at any time.”
Jennifer Levi, director of Gay & Lesbian Advocates & Defenders’ Transgender Project, said she hasn’t seen the memo and hasn’t been included in the meetings with the administration to discuss proposed changes. She says it may be a variation of the Sessions memo.
“But [it] also could be the roll-out plan, including details about how to start implementing, to reverse the work of the last administration to define sex to include gender identity and transgender people,” said Levi. “And given that everyone has been expecting HHS proposed revised regulations to drop, that would be consistent.”
NCTE’s Keisling vowed to fight the proposed HHS rule change, and said she does not think it can undo rulings from “dozens of federal courts over the last two decades affirming the full rights and identities of transgender people.”
“It would not undo the consensus of the medical providers and scientists across the globe who see transgender people, know transgender people, and urge everyone to accept us for who we are,” said Keisling. “And no rule—no administration—can erase the experiences of transgender people and our families.”
Such proposed changes are typically published in the Federal Register with a notice that the public has 30 to 60 days to comment. The department proposing the change is then supposed to study public comment before publishing the final regulations.
Caitlin Oakley, a spokesperson for the HHS media office, would not provide a copy of the draft proposal and said the department does not comment “on alleged documents.”
She shared a statement from HHS’s director of the Office of Civil Rights, Roger Serevino: “A federal court has blocked HHS’s rule on gender identity and termination of pregnancy as contrary to law and infringing the rights of healthcare providers across the country. The court order remains in full force and effect today and HHS is abiding by it as we continue to review the issue.”
But Lambda Legal says the HHS proposal “willfully ignores the long line of federal cases protecting transgender people.”
“For years, courts across the country have recognized that discriminating against someone because they are transgender is a form of sex discrimination,” said Diane Flynn, Lambda Legal Litigation Director. “If this administration wants to try and turn back the clock by moving ahead with its own legally frivolous and scientifically unsupportable definition of sex, we will be there to meet that challenge.”
Shannon Minter, a transgender man who serves as director for the National Center for Lesbian Rights, agreed.
“The federal courts have interpreted sex discrimination laws broadly for decades in order to ensure that all forms of sex-based discrimination are prohibited, including discrimination against transgender people,” said Minter. “This proposal is out of step with longstanding legal precedent and would create havoc in federal agencies, which are charged with enforcing the law and cannot simply disregard binding legal decisions. And no matter what this administration orders federal agencies to do, the courts still have the authority to interpret these laws and will continue to protect transgender people.”
On the current HHS.gov website, the department still indicates, “HHS has issued a policy explicitly requiring employees to serve all individuals who are eligible for the department’s programs without regard to any non-merit factor, including race, national origin, color, religion, sex, sexual orientation, gender identity, disability (physical or mental), age, status as a parent, or genetic information.” Its Equal Employment Opportunity Policy states, “HHS has updated its equal employment opportunity policy, which already prohibited discrimination based on sexual orientation, to explicitly protect against unfair treatment of employees and applicants for employment based on gender identity and genetic information.”