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If the Trump administration wants move ahead with its legally frivolous and unscientific definition of sex, we will meet that challenge in the courtsDiana Flynn is the litigation director at U.S. civil rights organisation Lambda Legal
This week, The New York Times published a story that the Trump/Pence administration is considering a proposal that would write transgender people out of the law in the United States by defining “sex” based solely on a newborn’s genitalia. This appears to be another an attempt to erode protections for transgender, intersex and non-binary people under the law.
This change would enshrine a definition of sex that is arbitrary, scientifically wrong and divorced from reality. It would flatly contradict what the medical community has known for decades - that sex and gender are not determined solely by a person’s genitalia.
The law, however, is on our side. For years, courts across the United States increasingly have recognised that discrimination against someone because of gender identity - in other words because they are transgender - is a form of sex discrimination. This administration defies the law by seeking to roll back this protection, and to do it by limiting the very definition of “sex” to exclude transgender people.
According to the New York Times story, the draft memo that has been circling since last year, proposes a redefinition of “sex” under Title IX of the Education Amendments of 1972, which were enacted to protect people from discrimination based on sex in education programmes that receive funding from the federal government.
Specifically, the proposal insists that a person’s sex may be nothing more than “a person’s status as male or female based on immutable biological traits identifiable by or before birth”. It further clamps down on individual identity, by requiring that 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”.
Thus, in a throwback to some of the sorriest days in human history, this jaw-dropping proposal actually requires government approval of a person’s genetics before they can correct an erroneous gender-assignment and claim fair treatment under law.
For decades, it has been understood by the medical and scientific communities that sex and gender cannot be determined solely by birth anatomy or chromosomes. And the current state of the law is consistent with the science, and supports the protection of transgender people by federal sex discrimination statutes.
So despite understandable concern in the community, we want to let you know that the government would have a difficult time enacting this policy and getting a court to agree with them.
This latest ideologically-driven attempt by the Trump administration to marginalise transgender people and force them into the shadows is but the latest in a series of discriminatory actions targeting the transgender community.
This includes an attempt to ban transgender people from serving in the U.S. armed forces, eliminating discrimination protections for transgender workers in the workplace and for transgender students at school, denying transition-related care, removing LGBTQ-specific content from government websites, nominating judges and cabinet members with anti-LGBT views and ties to anti-LGBT organisations, and enacting license to discriminate laws and regulations in government agencies.
Iworked for 34 years in the Department of Justice’s civil rights division and I led the legal counsel project that persuaded the Department to recognise that discrimination based on gender identity or transgender status is illegal sex discrimination.
But when the new Trump administration started, the Department of Justice not only revoked this interpretation, but went so far as to side with a company in the case Zarda v. Altitude Express and argued that employers should be able to fire workers simply for being gay. In that moment, I knew that there would no longer be opportunity in the government to move the ball forward on LGBT+ rights. So I decided to leave and join Lambda Legal.
Lambda Legal has been at the centre of the battle to beat back these attempts to marginalise the transgender community. We have sued this administration successfully to block implementation of the transgender military ban in the military and have worked to secure healthcare benefits for transgender veterans.
If this administration wants to try to turn back the clock by moving ahead with its own legally frivolous and scientifically unsupportable definition of sex, we will meet that challenge in the courts.
We will not accept this shameless attempt to erase the very existence of transgender members of our community.
