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Dangerous, Oppressive, and Impossible: Redefining Sex to Erase Trans People

Oct 31, 2018

Eric Hayes, Communications and Development Coordinator

The Memo

In mid-October, the New York Times discovered a leaked memo from the U.S. Department of Health and Human Services (HHS).  The memo contained a proposal to adopt a strict, unified definition of gender as an unchangeable male or female based on the genitals a person is born with or genetic markers “on a biological basis that is clear, grounded in science, objective and administrable.” The explicit motivation for this proposal is to roll back protections for transgender individuals being provided under Title IX, the civil rights law that protects against gender discrimination in educational institutions.

The Response

The U.S. Department of Health and Human Services and the current administration have chosen not to comment on the memo. It is important to note that they have not denied  the existence of the memo, the validity of reporting on its contents, nor refuted intentions to strip transgender citizens of their right to exist without discrimination.

Meanwhile, the trans community has come out to declare that they #WontBeErased. The refrain has been echoed across social media, by the press, and in demonstrations and rallies throughout the country.

The Danger

During the Obama administration, a major shift was made to interpret civil rights protections for sex and gender discrimination more widely than they had been previously applied. Protections such as the ones provided in Title IX  against sex-based discrimination were also enforced to protect trans and gender non-conforming students. The rationale being that individuals, should not be subjected to discrimination for living outside of binary societal standards of what a man or woman is or should be.

This redefinition would explicitly reinstate the rights of educational institutions to discriminate against transgender people. The proposed redefinition of gender would allow educational institutions to discriminate against people who are transgender and gender non-conforming. Beyond that, the reported intention of the memo is to adopt this definition across several key departments in the federal government that could also affect protections for employment, access to health care and other basic human rights. It would also make trans and gender non-conforming people even more vulnerable to employment discrimination, and embolden health insurance providers to cut plans including gender-affirming health care which covers alignment of a person’s physical body with their gender identity. Depending on the scope of proposed changes that are adopted, this list could continue to grow.

Beyond the governmental consequences, actions such as these embolden hatred in our communities. As we have seen in the last two years, when powerful people raise their voices to praise hate, violence against marginalized people becomes more commonplace. Transgender people are already disproportionately victims of violent crime. Rhetoric from the highest levels of our government that invalidates trans identities lends momentum to the vain of anti-trans sentiment that exists in society and endangers all trans people.

The Absurdity

This is a clear attempt to invalidate and erase the transgender community. The truth remains; no piece of paper can erase well over 1 million Americans. The federal government and many states currently allow people to change gender markers on birth certificates and IDs. There has been no mention of how the government could conceivably “put the toothpaste back in the tube” to use paperwork as definitive proof of gender. Enforcement efforts could  include large amounts of time-consuming, inappropriate, and potentially unconstitutional and invasive genetic testing and/or genital examinations.

Beyond the futility of this attempt, the stated intention of the memo cites a basis that is grounded in science. Science disagrees with the binary understanding of gender:

“In reality, the course of becoming a “male” or “female” involves several steps, regulated by many genes and hormones. Much of the time these processes all go in the same direction. But some of the time, they don’t. Seeing how that happens makes clear that the proposal, to define all people as male or female at birth, is scientifically dubious.”

Kristina Olson in Scientific American, October, 29, 2018

The most obvious issue with the proposed definition from the memo is the existence of intersex people. “Intersex” means that a person was born with sex characteristics outside of the typical binary classification of male or female bodies. This is more common than many might believe. Being born intersex is roughly as common as being born with red hair.

There are more than 30 variations that constitute someone as intersex. One such variation involves people with traditionally male chromosomal configurations and traditionally female genitalia and secondary characteristics. If the definitions were adopted and institutions began checking birth certificates, examining genitals, and testing genes, it is unclear how intersex individuals would navigate these institutions. Intersex individuals exist as generally unnamed victims in the barrage of federal attacks on the LGBTQ+ community.

Stand Up, Speak Out

Here are some things you can do to help support Trans and gender non-conforming people facing this threat:

  • Vote on November 6: Protections do not exist federally or state-wide in Ohio to protect transgender people from discrimination. The ballot box will largely decide if the people in Columbus or Washington, D.C. are people who will stand up to protect trans and gender non-conforming Americans or if they will be silently complicit in their erasure and oppression. Elect candidates who support equality. Find your polling place here.
  • Contact government officials and urge them to reject this proposal and any like it:
    • US Department of Health and Human Services Secretary, Alex Azar II
      • Toll Free Call Center: 1-877-696-6775
      • Azar’s Voicemail: 202-205-5445
      • Address: The U.S. Department of Health & Human Services
      • Hubert H. Humphrey Building, 200 Independence Avenue, S.W. Washington, D.C. 20201
      • Azar’s Twitter
    • Ohio Senators
    • Participate in a demonstration to support transgender people.

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