Of­fi­cials move to limit def­i­ni­tion of gen­der

Ef­fort would strip civil rights pro­tec­tions from trans­gen­der peo­ple

The Dallas Morning News - - Front Page - Erica L. Green, Katie Benner and Robert Pear, The New York Times

WASH­ING­TON — The Trump 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 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, sin­gle­sex 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 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.

The memo 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 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 trans­gen­der peo­ple from civil rights pro­tec­tions. The Trump ad­min­is­tra­tion has sought to bar trans­gen­der peo­ple from serv­ing in the mil­i­tary and has legally chal­lenged civil rights pro­tec­tions for the group em­bed­ded in the na­tion’s health care law.

Sev­eral agen­cies have with­drawn Obama­era 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 and a na­tional sur­vey of el­derly cit­i­zens.

For the last 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.”

The De­part­ment of Health and Hu­man Ser­vices has called on the “Big Four” agen­cies that en­force some part of Ti­tle IX — the de­part­ments of Ed­u­ca­tion, Jus­tice, Health and Hu­man Ser­vices, and La­bor — to adopt its def­i­ni­tion in reg­u­la­tions that will es­tab­lish uni­for­mity in the gov­ern­ment and in­crease the like­li­hood that courts will ac­cept it.

The def­i­ni­tion is in­te­gral to two pro­posed rules cur­rently un­der re­view at the White House: One from the Ed­u­ca­tion De­part­ment deals with com­plaints of sex dis­crim­i­na­tion at schools and col­leges re­ceiv­ing fed­eral fi­nan­cial as­sis­tance; the other, from health and hu­man ser­vices, deals with health pro­grams and ac­tiv­i­ties that re­ceive fed­eral funds or sub­si­dies. Both reg­u­la­tions are ex­pected to be re­leased this fall, and would then be open for pub­lic com­ment, typ­i­cally for 60 days. The agen­cies would con­sider the com­ments be­fore is­su­ing fi­nal rules with the force of law — both of which could in­clude the new gen­der def­i­ni­tion.

Civil rights groups have been meet­ing with fed­eral of­fi­cials in re­cent weeks to ar­gue against the pro­posed def­i­ni­tion, which has di­vided ca­reer and po­lit­i­cal ap­pointees across the ad­min­is­tra­tion. Some of­fi­cials hope that health and hu­man ser­vices will at least rein in the most ex­treme parts, such as the call for ge­netic test­ing to de­ter­mine sex.

If the Jus­tice De­part­ment de­cides that the change is le­gal, the new def­i­ni­tion can be ap­proved and en­forced in Ti­tle IX statutes, and across gov­ern­ment agen­cies.

The Jus­tice De­part­ment de­clined to com­ment on the draft health and hu­man ser­vices pro­posal. The Jus­tice De­part­ment has not yet been asked to ren­der a for­mal le­gal opin­ion, ac­cord­ing to an of­fi­cial there who was not autho­rized to speak about the process.

Health and hu­man ser­vices of­fi­cials said they were only abid­ing by court or­ders, re­fer­ring to the rul­ings of Judge Reed O’con­nor of the U.S. District Court in Fort Worth, a Ge­orge W. Bush ap­pointee who has held that “Congress did not un­der­stand ‘sex’ to in­clude ‘gen­der iden­tity.’ ”

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