U.S. gender memo draft stirs concern in Arkansas
At the foot of the stairs that rise to the Arkansas Capitol, a group formed a semicircle around the transgender woman with a megaphone.
It was a crisp, bright November day, and the Legislature wasn’t in session. But the roughly 75 people at the “Trans People Won’t Be Erased” rally, which loosely mirrored October demonstrations in New York and Washington, D.C., weren’t gathered to address state lawmakers.
Two weeks earlier, a New York Times report had detailed a draft U.S. Department of Health and Human Services memo that the Times said pushes to redefine sex as a “biological, immutable” condition in the eyes of some federal agencies. The story prompted an immediate outcry among transgender people, who identify as a gender different from the sex they were assigned at birth.
In Arkansas, the news helped trigger the Capitol demonstration, where teens
with facial piercings, burly fellows with tattoos, a little boy in a Superman shirt and many others had convened to listen to a series of transgender speakers. A dog with an “equal” sign shaved into its fur roamed the crowd as Andrea Zekis, a graduate student from Little Rock in the center of the semicircle, led chants.
Such events are part of how transgender Arkansans and LGBT advocates are responding to a federal proposal that they say targets their community.
“I’m hoping that we do more,” said Zekis, reflecting on the rally in an interview. “I just think it’s the beginning of something.”
Much remains unclear about the draft memo, which was obtained by The New York Times but has not been released in full.
On Oct. 21, the Times ran a front-page story detailing the document, which reportedly has been circulating since last spring. According to the Times, the draft proposes a new legal definition of gender under Title IX statutes, which bar sex discrimination in education or other programs that receive federal funding.
The memo argues that federal agencies should understand gender as fixed at birth, either male or female and be defined by the genitals one is born with, the newspaper said, with any disputes over sex to be resolved through genetic testing.
LGBT advocates say this would essentially eradicate federal acknowledgement of an estimated 1.4 million people who identify as transgender, especially in contexts such as schools, and would fan the flames of disputes over the rights of transgender people as interpreted by the government.
For example, it would seem to firmly side against transgender students’ use of accommodations — such as bathrooms and locker rooms — and educational programs that correspond with the gender the students identify with. (The Department of Education announced that it would stop investigating bathroom complaints earlier this year.)
Several transgender Arkansans and leaders of local LGBT groups told the Arkansas Democrat-Gazette that even the limited details from the draft memorandum had caused confusion and worry in their communities.
After an era in which a few transgender public figures were elevated — such as actress Laverne Cox or television personality Caitlyn Jenner — many said the memo’s premise felt like a significant step backward. Zekis said she was especially concerned about its impact on transgender teenagers and young people.
“How do you erase gender? You know, everything’s not cut and dried with male and female,” said Miss Major Griffin-Gracy, a longtime transgender activist who recently moved to central Arkansas.
Griffin-Gracy is the founder of House of GG, a Little Rock educational retreat and historical center designed to support transgender people who live in the South. She said the memo is one sign of an administration she sees as unfriendly to transgender rights, and that underlines the importance of staying outspoken.
“This isn’t a time to become afraid, or get scared, and run and hide,” she said. “We’ve got to remain visible, because if we hide, then they’ll tell themselves … ‘Oh, they don’t exist.’”
At River Valley Equality Center, a Fort Smith organization which, among other services, offers support groups for people who are transgender, president Jordan Ruud said the group has posted on its social media to clarify misconceptions and rumors about the memo.
He said some transgender people have been spurred toward political engagement by the news. For others, he said, “seeing something like this show up in these official channels genuinely scares people.”
Tiommi Luckett, a Helena-West Helena native and HIV and transgender-rights advocate, said she fears reports that the memo will provoke those who wish to commit violence against transgender people. (FBI data
note at least 132 victims of anti-transgender or anti-gender-non-conforming hate crimes in 2017.)
Luckett said she is often apprehensive just walking down the street, or at settings like the recent Little Rock rally, where she wasn’t sure who was in attendance to offer support or to identify and target transgender people in the state.
“[The memo] will add fuel to the [existing] flame, because essentially, it will say that we’re living a lie,” Luckett said. “[But] I’m not doing this for show; I’m not doing this for attention. I’m doing this because this is who I am.”
In a statement, a Health and Human Services spokesman told the Arkansas Democrat-Gazette that “we do not comment on alleged, leaked documents that purport to indicate the status of deliberations or the focus of the department,” but she pointed to a 2016 court decision that called a definition of sex used during President Barack Obama’s administration “overbroad.”
“[That] court order remains in full force and effect today, and HHS is bound by it as we continue to review the issues,” spokesman Caitlin Oakley said.
Oakley said the department’s civil-rights office would continue to “vigorously enforce” laws as written and passed by Congress, and that “everyone deserves to be treated with respect.”
LEGAL/POLICY IMPACT
Legal organizations focused on LGBT rights say they would immediately file suit against any formal policy based on the memo.
The courts have not understood gender in the manner the memo suggests, and a rule which “summarily … erases transgender people from our civil rights statute” would defy both upper- and lower-court legal precedent, said Sasha Buchert, senior attorney at Lambda Legal, which supports LGBT people and people living with HIV.
“Any first-year law student would give you the same answer I’m giving you,” she said. “The idea that they would put together a policy that isn’t consistent with federal law is completely reprehensible to me, both as an advocate for transgender rights, but as a lawyer, too.”
At this point, there also is ambiguity as to how the memo’s points might trickle down to state policy or what shifts would happen at educational systems under Title IX rules.
In Arkansas, spokesmen for the state’s Department of Health, Department of Human Services and the Education Department said their agencies had not reviewed the memo nor had formal policy discussions based on it.
“DHS employees are individuals who see the news and may have read the articles like the general public, and we may hear of new or proposed policy changes on the federal level,” Arkansas Department of Human Services spokesman Marci Manley wrote in an email. “But as an agency, we operate on official guidance in regard to policy … [and] we have not received official guidance related to this. If we were to receive any guidance of that kind, we would have to evaluate the implications at that time.”
University of Arkansas, Fayetteville Title IX coordinator Tyler Farrar said it would be “premature” to comment on the memo. Though he’s aware of its existence, he has not specifically reviewed the document.
He said the university is committed to providing a “safe and secure learning environment” and preserving equal opportunity for students, applicants and employees, regardless of “race, age, gender, sex, religion, national origin, marital or parental status, disability, veteran status, sexual orientation, gender identity or any other characteristic protected under applicable federal or state law.”
Ultimately, “one of the biggest initial dangers from a draft proposal like this is misinformation,” said Gillian Branstetter, media relations manager for the National Center for Transgender Equality advocacy organization.
“Many doctors, teachers and employers may feel emboldened to disregard the rights of transgender people now that this memo is in the media, even though its mere existence doesn’t change federal law and the proposal itself hasn’t even been enacted,” she said.
ORGANIZED PUSH-BACK
“I don’t think the memo will become reality,” said Krystopher Stephens, the co-director of statewide advocacy group Arkansas Transgender Equality Coalition. “If it does, then we’re going to do what we always do, which is keep moving forward.”
As part of its response, Stephens said the organization has recently emphasized community-building events such as film screenings, art nights and support groups, which are “especially critical now, because there’s just so much hate and misinformation coming from our nation’s capital.”
Arkansas Transgender Equality Coalition also organized a recent gathering for the Transgender Day of Remembrance, which is a nationwide event commemorating transgender people who have died, especially from violence. Last year, group members made posters for the event, depicting transgender people and describing what they had enjoyed in life: a basketball player, someone who was active in church.
Other transgender Arkansans and LGBT advocates are calling on one another to turn more deliberately toward activism. For this purpose, Luckett said the leaking of the memo has a silver lining because it presents an opportunity to “get out in front of it … I know the trans community is not going to be silent about [this], because it affects us.”
“I’m not saying that [change] is going to happen tomorrow, or the next five years, or even 10. Maybe in this lifetime,” Luckett said. “What we will do is continue to mobilize, continue to organize, continue to rally, continue to hold space for each other to let each other know that we’re valid, until everyone else sees it.”
At LGBT nonprofit Central Arkansas Pride, Executive Director Zack Baker said the group has been encouraging people to vote, contact local representatives to voice support for transgender rights and reach out to businesses to ask if they have transgender-inclusive policies, which can include provisions such as gender-neutral dress codes.
Others are balancing their engagement with precautions, including Brandi Evans, a Bauxite resident and co-chairman of LGBT supporters’ network Central Arkansas Parents & Allies Who Support.
Her 13-year-old son, an artistic teen who loves special-effects makeup and YouTube videos, came out as transgender earlier this year. After experiencing “complete and utter, just shock” over news reports about the memo, she has been working to have his gender marker changed (a legal amendment to one’s birth certificate) as soon as possible.
Evans said Parents & Allies Who Support, which helped organize this month’s Little Rock demonstration, has “a lot more to do,” and that the group will keep looking at what it can do to speak up for kids like her son.
“I want my child to live in a world where he doesn’t have to go to these rallies,” she said. “No one should ever be erased just because someone doesn’t like who they are.”