#WontBeErased: What’s going on? What does this mean for me?

PHOTO: NCTE Executive Director Mara Keisling speaks at a rally in front of the White House the day after The New York Times report

Last week, The New York Times reported on a memo circulating within the federal government that seeks to prevent transgender people from having their rights protected by federal civil rights laws. The details of the memo were met with immediate outrage from civil rights leaders, the international scientific community, the parents of transgender youth, and transgender people across the country who have made it clear to the administration they #WontBeErased.

We at the National Center for Transgender Equality have received a ton of questions from the media and our community about the true impact of the Trump Administration’s plans. While it’s important to accurately frame the very real threat posed by the memo and the Trump administration, we also want to discourage any misunderstandings about what it does or doesn’t do. Here are our answers for some of the most common questions we’ve received over the last week.

What does the memo say?

The Trump Administration has been attacking transgender people since day one. The explosive New York Times report centered on a memo circulated among Trump administration officials last spring, discussing a comprehensive plan to roll back protections for transgender people. Nobody at the National Center for Transgender Equality has seen the full text of this internal memo. But according to the Times, the memo seeks to erase policies within the federal government that respect the rights and identities of transgender people when enforcing federal civil rights law:

The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined ‘on a biological basis that is clear, grounded in science, objective and administrable.’ The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.

So if a transgender man uses the men’s restroom at his workplace and is fired because of it, the federal government would not recognize it as discrimination under the policy outlined in this memo because the doctors at his birth designated him as female on his birth certificate. If a transgender girl were suspended from school for wearing a girl’s uniform during class, the federal government would likewise refuse to see this as discrimination because a genetic test might show her to have XY chromosomes instead of XX. In other words, under this memo’s approach, the federal government would not recognize anti-transgender discrimination as a form of illegal discrimination under federal sex discrimination laws.

The Trump Administration has already taken steps to ensure those results, by, for example:

  • Rescinding lifesaving guidance supporting transgender students in February 2017
  • Reversing the Justice Department’s policy of supporting transgender workers in federal court in October 2017
  • In October 2018, just days after the memo was leaked, taking this last step even further by filing a brief in the Supreme Court arguing it’s legal to fire transgender employees

The leaked memo proposes a strategy for undermining federal protections for trans people across the board. The likely next step in that plan is to roll back regulations under the Health Care Rights Law that recognize health care discrimination protections for transgender people.

What is the memo? Is it law? A policy? An executive order?

The memo is not legally binding and is most certainly not law. What the memo appears to do is outline a strategy for enforcing federal laws in a way that ignores the rights of transgender people as well as undermine how judges have enforce federal laws banning sex discrimination. We’ve already seen the Trump administration take steps to implement that strategy, and we know more attacks are under way as part of this plan.

PHOTO: President Lyndon Johnson signed the 1964 Civil Rights Act, which included prohibitions on discrimination on the basis of sex

Laws like Title VII of the 1964 Civil Rights Act, Title IX of the Education Amendments Act of 1972, and the Health Care Rights Law ban discrimination on the basis of sex in employment, education, and health care respectively. A shipping warehouse can’t hold female employees to a different work quota than male employees, for example, and a school cannot force all of its female students to take home economics classes while forcing all of the male students to take computer science.

Over the last two decades, courts have overwhelmingly found these laws also protect discrimination against transgender people. Judges across the country agree that transgender people are protected from discrimination by existing federal law, and no memo can change that.

So what does the memo do?

As reported on by the Times, the memo lays out a proposal for reversing many advancements made over the last decade in recognizing the rights of transgender people.

During the Obama administration, numerous federal agencies enacted new rules recognizing the rulings of federal courts, telling schools, health insurance companies, and federal contractors they needed to respect the rights of transgender people in the same way they respect the rights of people who aren’t transgender.

Within days of taking office, however, the Trump administration began rolling back many of those rules and ignoring the complaints of transgender people facing discrimination. Just last week — the same week the details of the memo went public — lawyers from Trump’s Justice Department went to the Supreme Court to argue employers should be allowed to fire transgender people simply because of who they are.

The leaked memo from last week doesn’t add to this approach as much as attempt to explain it and attach a lot of weird pseudoscience in an attempt to justify it. It’s best to think of this memo as a kind of mission statement for how the Trump administration views gender, transgender people, and the laws that protect us.

The memo is part of a conversation among Trump administration officials and could ultimately be adopted in federal regulations by the Departments of Education, Justice, Labor, and Health and Human Services. This would embolden anyone who wants to discriminate, and would help the administration try to convince courts to rule their way.

The administration is already about to formally propose just such a rule change under the Health Care Rights Law. But the administration would have to go through a public rulemaking process and, as we saw last week, would face overwhelming public opposition, including from leading medical groups. It would also be challenged in court.

How would the Trump administration’s plan impact my ability to get an accurate passport? Driver’s licenses? Birth certificate?

The leaked memo focuses on undermining federal civil rights laws on employment, education, and health care — areas where we have already seen concrete moves attacking trans people. But its proposal to narrowly define gender under federal laws would have even more sweeping implications if it were adopted by other federal agencies with jurisdiction over things like passports and other ID documents.

Transgender people have been able to change the gender markers on their passports since 2010 and Social Security records since 2013 with a signed letter from a doctor. While the State Department has denied it is considering a change to the passport policy, the memo from HHS is so broad it could easily be used to restrict the right of transgender people to accurate IDs.

Driver’s licenses and birth certificates are managed by state governments and would likely be unaffected by this memo. Under Bush-era rules that are still in effect, the Department of Homeland Security has left to states the determination of gender change policies. Currently, every state has a procedure allowing changes for transgender people under at least some circumstances. Though it would be a severe overreach and would be immediately challenged in court by many states, the notion that gender is “immutable at birth” could be used by DHS to put new restrictions on the REAL ID Act and prohibit states from changing gender markers for their citizens.

To be absolutely clear, this is not the case now and transgender people can and should continue to exercise their rights to obtain accurate ID. For more information, please visit NCTE’s ID Documents Center. While we can’t predict what the Trump administration will stoop to next, NCTE closely watches every federal policy affecting trans people’s rights and we will be here to push back against any attempt to extend the administration’s anti-trans attacks to new areas.

Who’s behind this plan?

According to the Times, the memo was spearheaded by the Office of Civil Rights within the Department of Health and Human Services. That’s the office within HHS in charge of making sure health care providers, insurance companies, and federally-funded health programs follow civil rights laws. The Department of Education has its own civil rights office, as does the Justice Department and numerous other federal agencies.

The head of OCR in HHS is Roger Severino, a former employee of anti-LGBTQ groups like The Heritage Foundation and The Federalist Society. He’s criticized the existence of transgender people as “a radical new gender ideology,” calling respect for transgender people’s identities “equivalent to making [someone] say two plus two equals five.” When the Pentagon first began allowing openly transgender troops to serve in the military in 2016, Severino claimed the mere existence of transgender troops “dishonors [the] sacrifices” of other veterans.

Severino has built his career in large part on attacking LGBTQ people, and he was appointed to the his current position in large part to enact the anti-trans strategy outlined in this memo.

Who is impacted by the administration’s plan?

The memo is an argument against the rights of transgender people — 1.4 million adults and hundreds of thousands of young people across the country. The strict definitions proposed in the memo also completely ignore the existence of, and would also undermine civil rights protections for, people who are intersex, and could harm the rights of anyone who doesn’t conform to strict gender stereotypes.

A person who is intersex was born with physical or genetic traits that don’t align with society’s views of “man” and “woman.” This can include people with variations in their genitals, reproductive organs, or chromosomes (such as those born with XXY chromosomes instead of XX or XY chromosomes). Intersex people are often forced through non-consensual medical interventions in an attempt to “correct” the bodies they were born with. To learn more, visit our friends at InterACT.

It’s estimated that up to 1.7 percent of the population is intersex — meaning there may be more people who are intersex than their are natural redheads. But the HHS memo ignores their existence and instead relies on a simplistic, inaccurate understanding of science to enforce a strict gender binary. If enacted into policy, this proposal would have a similarly disastrous effect on intersex people as on transgender people.

What can I do to help?

We actually have a whole list of things transgender people, our families, and our allies can do to help fight this latest attack from the Trump administration and defend transgender equality. You can also make a donation to NCTE to support our effort to fight this and other awful policies coming from the Trump administration.

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National Center for Transgender Equality

We’re the nation’s leading social justice advocacy organization winning life-saving change for transgender people. Also at https://transequality.org.