The Needs to Know if the Trump Administration Legally Defines 'sex' Based on Chromosomes

 
WHAT COULD HAPPEN?

• Defining sex in a way that denies the existence of transgender people could roll back federal protections. But civil rights groups say it won't change state and local laws forbidding discrimination against transgender people.
• If adopted, civil rights groups say the new definition of sex would codify the administration's position that the transgender community is not deserving of civil rights protections in other areas of public life, as well.

 
Under the Obama Administration- a bit of history-

• Title IX says that no person shall be subjected to discrimination in any educational program or activity based on sex -- but it doesn't define "sex" or "discrimination." That iteration of Title IX included interpretations of the statute's sex-based provisions to include gender identity as a protected category
• President Barack Obama's education department expanded Title IX's sex-based protections to include gender identity. The Department of Labor, the Equal Employment Opportunity Commission and the Department of Health and Human Services issued similar interpretations of anti-discrimination statutes.

 
Key Details:

• Health and Human Services is leading the effort to define sex under Title IX, arguing in the memo that key federal agencies need to adopt a definition "on a biological basis that is clear, grounded in science, objective and administrable."
• “Sex” means that a person's status as male or female is based on immutable biological traits identifiable by or before birth.
• If adopted, such a definition could exclude transgender people from existing federal civil rights protections in education, employment and access to health care.
• The change will indicate that "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." It's unclear what would happen to people who have already legally changed their IDs.
• It is unclear how such a definition would apply to people born with intersex traits, or sex characteristics such as genitals or chromosomes that are not clearly male or female.
• States that receive Federal Funds under Title IX would have to comply with a new definition of sex and gender identity would no longer be protected.

 
What Does this Possibly Mean for Trans Folks?

• If the Department of Education adopts the definition, it would follow that other agencies will adopt it.
• Section 1557 of ACA forbids discrimination in health care programs and activities that receive federal funds. It prevents insurance companies from selling policies that completely exclude gender-affirming treatment from coverage. If this version of Title IX is adopted section 1557 can be rewritten. (Health insurers that now cover procedures involved in gender-affirming care -- sometimes called "transitioning," or changing a person's physical characteristics to align with their gender identitymay stop coverage altogether).

 
What Does this Mean for States?

• States have already passed their own laws protecting the transgender community “could” walk protections back based on the proposed definition by challenges to prior laws (voters could be asked if they still want protections for trans people in place).

 
If Adopted, what Could this Mean?

• It would be published in the Federal Register, where the public would have the chance to submit comments for the administration to consider before issuing a final rule.
• If it becomes policy, court battles will likely ensue that could bring the issue to the Supreme Court.

 
What Can I Do?

• Speak up and out
• Respond with public comment if this version of Title IX is adopted

• Become more active in your local community to ensure protections stay in place: (Federal regulations do not supersede state constitutional protections, or organizational and municipal protections. Federal law might, but not regulations).
• Donate so people can get all of their paperwork to align with their claimed gender identity
• Talk to people everywhere you go
• Make signs and put them up
• Blog
• Do something- don’t do “nothing”