WASHINGTON -- President Donald Trump's administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil-rights law.
A series of decisions by the Barack Obama administration loosened the legal concept of gender in federal programs, including in education and health care, recognizing gender largely as an individual's choice and not determined by the sex assigned at birth. The policy prompted fights over bathrooms, dormitories, single-sex programs and other arenas where gender was once seen as a simple concept. Conservatives, especially evangelical Christians, were incensed.
Now the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil-rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times.
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 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.
"Sex means a person's status as male or female based on immutable biological traits identifiable by or before birth," the department proposed in the memo, which was drafted and has been circulating since last spring. "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."
The new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves -- surgically or otherwise -- as a gender other than the one they were born into.
"This takes a position that what the medical community understands about their patients -- what people understand about themselves -- is irrelevant because the government disagrees," said Catherine Lhamon, who led the Education Department's Office for Civil Rights in the Obama administration and helped write transgender guidance that is being undone.
The move would be the most significant of a series of maneuvers, large and small, to exclude the population from civil-rights protections and roll back the Obama administration's more fluid recognition of gender identity. For the past year, the Department of Health and Human Services has privately argued that the term "sex" was never meant to include gender identity or even homosexuality, and that the lack of clarity allowed the Obama administration to wrongfully extend civil-rights protections to people who should not have them.
Roger Severino, director of the Office for Civil Rights at the department, declined to answer detailed questions about the memo or his role in interagency discussions about how to revise the definition of sex under Title IX.
But officials at the department confirmed that their push to limit the definition of sex for the purpose of federal civil-rights laws resulted from their own reading of the laws and from a court decision.
"Transgender people are frightened," said Sarah Warbelow, legal director of the Human Rights Campaign, which presses for the rights of lesbian, gay, bisexual and transgender people. "At every step where the administration has had the choice, they've opted to turn their back on transgender people."
A Section on 10/22/2018