Transgender Rights and The Trump Administration’s Definition of Sex

A proposed definition of sex could roll back transgender protections.

By , Attorney

The Trump Administration is working to establish a legal definition of sex that would reverse Title IX federal protections for the transgender community.

Defining Gender

According to the New York Times, the U.S. Department of Health and Human Services (DHHS) circulated a memorandum advocating for the use of a restrictive legal definition of "sex" under Title IX—the federal civil rights law that bans gender discrimination in education programs receiving federal funds.

DHHS wants government agencies that enforce Title IX—including the Departments of Labor, Justice, and Education—to adopt the following definition:

Sex means a person's status as male or female, based on immutable biological traits identifiable by or before birth. 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.

In other words, one's sex would be unchangeable—defined only at birth, as either male or female—and determined by the genitals that a person is born with. Under this rule, disputes about one's sex could only be resolved using genetic testing.

The Need for Transgender Antidiscrimination Laws

The proposed definition directly affects transgender individuals—meaning those who have a gender identity that differs from the sex they were assigned at birth. Sources including the National Institute of Health (NIH) estimate that as of 2016, the population of transgender individuals in the U.S. was somewhere between 1 and 1.4 million.

Transgender individuals are routinely targeted with discriminatory behavior. According to the NIH, "transgender individuals are exposed to widespread social stigma, discrimination, harassment, and abuse . . . and are four times more likely to live in extreme poverty, have double the rate of unemployment, and almost double the rate of homelessness."

What Protections Are at Risk?

Title IX of the Education Amendments of 1972 is a federal civil rights law that protects people from discrimination based on sex.

Title IX states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

The law applies to all education programs and activities that receive federal financial assistance, including:

  • approximately 16,500 local school districts
  • 7,000 postsecondary institutions
  • charter schools
  • for-profit schools
  • libraries and museums
  • vocational rehabilitation agencies, and
  • the education agencies of all 50 states, the District of Columbia, and U.S. territories.

According to the Department of Education's Office of Civil Rights (OCR), some key areas in which these institutions have Title IX obligations are:

  • recruitment, admissions, counseling, and financial assistance
  • athletics and single-sex education
  • sex-based harassment
  • treatment of pregnant and parenting students
  • discipline, and
  • employment.

Over the last few years, political debates and legal battles have raged over the use of school bathrooms, dormitories, single-sex educational programs, and other areas where gender-based rights come into play. If the government adopts this restrictive definition of sex, transgender individuals could lose protections against discrimination in these and other areas.

Enforcement of Title IX and How That's Changing

The Department of Education's Office of Civil Rights (OCR) is tasked with enforcing Title IX and ensuring that institutions comply with the law. However, the Office of Civil Rights' policies on investigating complaints of transgender discrimination have changed drastically under the Trump Administration.

The Obama administration broadened the legal concept of gender as it applied under federal education and health care programs. In some instances, it recognized that gender identity didn't always match one's sex at birth.

For example, Cahterine E. Lahmon—former OCR Chairwoman under Obama—issued guidance to school officials advising that a school's failure to appropriately respond to the mistreatment of transgender students could constitute sex discrimination under Title IX.

And in 2016, the Obama administration directed public schools to allow students to use bathrooms that match their gender identity, even if that didn't correspond with their birth certificates. The administration concluded that barring transgender students from public school bathrooms violated Title IX.

President Trump's administration has a different interpretation of Title IX and has been chipping away at transgender protections since he took office. Education Secretary Betsy DeVos and Attorney General Jeff Sessions rescinded the Obama administration's guidance and declared that states and individual school districts could decide how to accommodate transgender students.

Despite the fact that some federal appeals courts have held that transgender students must be allowed to use bathrooms that match their gender identity, in 2018, the Department of Education confirmed it would no longer investigate civil rights complaints regarding bathroom access. "Title IX prohibits discrimination on the basis of sex, not gender identity," Education Department spokeswoman Elizabeth Hill said in response to questions from The Washington Post. "In the case of bathrooms, longstanding regulations provide that separating facilities on the basis of sex is not a form of discrimination prohibited by Title IX."

Since taking over as the head of the Justice Department, Attorney General Jeff Sessions has issued policies reversing protections for transgender people in prisons and the workplace.

The Future of Title IX Transgender Protections

The Department of Health and Human Services will send its proposed definition to the Justice Department for review later this year. If approved, the new definition of sex could be enforced in Title IX statutes and across government agencies. Given Jeff Sessions' track record on LGBTQ rights, most assume he'll side with DHHS. As a result, LGBTQ groups across the country are protesting this effort to roll back transgender rights.

Some lawmakers are attempting to create statutory protections for the transgender community. The Equality Act–a bill that's currently pending in both the U.S. House of Representatives and the Senate—would amend the Civil Rights Act of 1964 to ban discrimination on the basis of sexual orientation, gender identity, and sex in the areas of employment, housing, public accommodations, public education, federal funding, credit, and the jury system. To learn more about this proposal, transgender rights, and LGBTQ issues, visit the Human Rights Campaign and the Transgender Law Center.

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