Here’s how it came about and what it could mean for transgender people.
The argument goes that to deny someone a job because they’re not masculine or feminine enough constitutes sex-based discrimination. Now, according to The Times’ report, the Trump administration appears to be drafting federal guidance that rejects that interpretation.
A memo obtained by the newspaper defines sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.”
What do you mean by federal guidance?
The memo obtained by the Times specifically articulates a proposal to create a definition for “sex” under Title IX, the federal civil rights law that forbids discrimination in schools receiving government funds.
Federal courts have relied on those interpretations over the years to conclude that transgender people are protected from discrimination in education — and many other contexts.
Civil rights groups say the proposal is a continuation of the administration’s efforts to deny the existence of transgender people.
Such moves signaled the administration’s disregard for the transgender community, said Omar Gonzalez-Pagan, senior attorney and health care strategist for Lambda Legal.
“We knew that a rule was coming,” he said, “we just didn’t know it would be as outrageous or bad as this memo purports it to be.”
What will transgender people lose if the proposal succeeds?
Defining sex in a way that denies the existence of transgender people could roll back federal protections. But civil rights groups say it won’t change state and local laws forbidding discrimination against transgender people.
Will the change have broader ripple effects beyond schools?
If adopted, civil rights groups say the new definition of sex would codify the administration’s position that the transgender community is not deserving of civil rights protections in other areas of public life, as well.
The Times reported that HHS is leading the effort to define sex under Title IX, arguing in the memo that key federal agencies need to adopt a definition “on a biological basis that is clear, grounded in science, objective and administrable.”
If the Department of Education adopts the definition, it would follow that other agencies will adopt it, said Jocelyn Samuels, executive director of UCLA Law’s Williams Institute, a think tank dedicated to sexual orientation, gender identity law and public policy.
“I think that their goal is to have it apply across the board to all sex discrimination prohibitions under federal law,” she said.
It would also send a signal to the wider world that the Trump administration does not recognize transgender people as a minority group that should be defended from discrimination.
Are there things this measure can’t change?
Experts say the administration cannot undo decades of case law protecting transgender people through bans on sex discrimination and sex stereotyping. One of those cases was decided by the Supreme Court in 1989. Price Waterhouse v. Hopkins involved a female employee who sued after she was passed over for a promotion for being too “macho.”
What happens next?
If adopted, the proposal described by The Times would be published in the Federal Register, where the public would have the chance to submit comments for the administration to consider before issuing a final rule.
If it becomes policy, court battles will likely ensue that could bring the issue to the Supreme Court, Samuels and Gonzalez-Pagan said.
What does this suggest about the administration’s future plans, beyond changing Title IX?
The Trump administration has shown interest in changing the Affordable Care Act’s anti-discrimination rule, which specifically covers gender identity.
The rule, known as Section 1557, forbids discrimination in health care programs and activities that receive federal funds. It prevents insurance companies from selling policies that completely exclude gender-affirming treatment from coverage.
Lawyers and experts who spoke to CNN said that HHS’ involvement suggests the move is linked to the effort to rewrite 1557. To change it, experts say the administration must change the underlying statutes upon which it is based. One of them is Title IX.
It remains to be seen what a new version of Section 1557 would look like. But if it follows the definition of sex outlined in the memo obtained by The Times, it may strip existing gender identity protections and invalidate the ban on policy exclusions for gender-affirming treatment.
Source : CNN