U.S. mulls more narrow legal definition of gender

WASHINGTON — The United States government is considering defining gender as a biological, immutable condition determined by genitalia at birth.

A series of decisions by the 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 Chris- tians, 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 finan- cial 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 deter- mined “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 deter- mined 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.

“The sex listed on a per- son’s birth certificate, as orig- inally issued, shall consti- tute definitive proof of a per- son’s sex unless rebutted by reliable genetic evidence,” says the memo, which was drafted and has been circulating since last spring.

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 E. Lhamon, who led the Education Department’s Office for Civil Rights in the Obama admin- istration and helped write transgender guidance that is being undone.

The move would be the most significant in a series of maneuvers, large and small, to exclude the population from civil rights protec- tions and roll back the Obama administration’s more fluid recognition of gender identity. The Trump administra- tion has sought to bar trans- gender people from serving in the military and has legally challenged civil rights protec- tions for the group embed- ded in the nation’s health care law.

Several agencies have withdrawn Obama-era policies that recognized gender identity in schools, prisons and homeless shelters. The administration even tried to remove questions about gender identity from a 2020 census survey.

For the last year, 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.

Officials at the Department of Health and Human Services confirmed 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 peo p le 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.”

After more than a year of discussions, health and human services is preparing to formally present the new definition to the Justice Department before the end of the year, Trump administration officials say. If the Justice Department decides the change is legal, the new definition can be enforced in Title IX statutes, and across government agencies.