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On Sunday, the New York Times reported that the Trump administration is pushing a legal definition of sex that could define transgender people out of existence. A memo at the Department of Health and Human Services proposes defining sex under Title IX by a person’s genitalia at birth, a move that would leave transgender people without civil rights protections.
ABP called Janson Wu, executive director of GLBTQ Legal Advocates & Defenders (GLAD)—“the ACLU for the LGBTQ movement”—to talk about what the memo means and how GLAD is fighting back.
What is the Trump administration trying to do with this proposal?
What they’re trying to do is to reverse decades of case law protecting transgender people under existing sex discrimination laws. For years courts across the country have interpreted federal laws to protect transgender people in schools and in jobs under the theory that gender identity discrimination is sex discrimination. So if you’re discriminating against someone because they’re transgender or you believe they’re transgender, that is discrimination based upon their sex.
Does the memo change those civil rights protections?
The good news is that regardless of what the administration says, the courts at the end of the day will decide what the scope of the law is. This is just a memo and nothing else. The rights that we had on Friday we still have on Monday. But it is also a sobering reminder that there is a concerted and organized opposition that is hellbent on taking the rights of transgender people away.
If HHS implements this policy, what would the repercussions be for transgender and non-binary people?
That’s a little more complicated to answer.
We can look at Health and Human Services and look at the ways that they used to include gender identity within the protections of the Affordable Care Act, and now they clearly no longer do that. Healthcare discrimination against transgender people will likely no longer be a priority or focus for this administration.
For the Department of Education, they rescinded guidance two years ago for transgender students. Did that change those students’ legal protections or rights in any way? No. But it certainly means that transgender students can’t go to Department of Education with the same assurance that they’ll be met with an open mind.
And then for the Department of Justice, there’s many things that the Department of Justice does, but more specifically their Office of Civil Rights enforces our non-discrimination laws through cases that they choose to bring. With our new administration, we certainly have seen and will continue to see them choose not to bring cases involving transgender discrimination.
It’s one fewer place for LGBTQ people and specifically trans people to seek recourse. But it doesn’t change their legal rights at that end of day. They can still go to court and they can still sue in court.
Has the federal government ever defined people by their biological sex at birth?
At the federal level I’m not sure. Certainly not a blanket-wide policy. There may have been individual policies. For example, passports you used to have to show proof of gender confirmation surgery before being able to get your sex changed on your passport. I wouldn’t call that a blanket policy of defining sex by your biological sex, but it certainly was one piece of that.
Do you see this as an effort to remove civil rights protections for transgender people?
Yes. This is part of a larger organized campaign by a conservative opposition to take away non-discrimination rights from transgender people, and they are fighting that within the administration, they are fighting that within the courts, they are fighting that in state legislatures. It is a multi- pronged strategy from the right.
How has GLAD been involved in fighting back?
We have been part of litigation that seeks to advance the rights transgender people under sex discrimination laws.
In fact, one of the very first cases finding that transgender identity discrimination was actually sex discrimination was a GLAD case back in 2001: Doe v. Park West Bank. That was a transgender person who went to apply for a loan wearing feminine clothing—I actually don’t know what their pronouns would have been—and was told to go back home, change into a suit and then come back to the bank to apply for a loan. We won a decision at the First Circuit [Court of Appeals] saying that constituted sex discrimination.
If the administration does go forward and tries to implement this policy, would GLAD be involved in fighting against it?
We’ll absolutely be involved with the strategic response, however that looks. As of now nothing has changed in the law. There’s not even anything necessarily to sue about. This is a scary and maddening development, and it’s important to keep in mind that it’s a report of a memo that’s being considered by the administration, but no formal law or policy change has happened.
This memo came at the same time that Uruguay passed a law guaranteeing transgender people the right to surgery to match their gender identity and a minimum percentage of public jobs. Is it hard to see the U.S. move in the opposite direction?
Regardless of where you are, the fight for change is always a long game. You’ve gotta have that perspective if you do this work. We unfortunately are in a moment in this country where the pendulum is swinging back, but I have hope for us and for all movements across the globe that progress really only goes in one direction.