According to the New York Times, the U.S. Department of Health and Health Services is considering an interpretation of Title IX that defines sex as “a person’s status as male or female based on immutable biological traits identified by or before birth […] The sex listed on a person’s birth certificate, as originally listed, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.” The proposal would withdraw recognition and protection from the U.S. trans community. Civil rights and LGBTQIA+ advocacy organizations, including the National Center for Transgender Rights, have pledged to take the administration to court, should it move forward with this change.
Human Rights Campaign demonstrated via an interactive map how LGBTQIA+ people are not afforded federal civil rights protections in central and southern U.S. Discrimination on the basis of sexual orientation is not explicitly prohibited in the United States; however, civil rights advocates have argued that discrimination on the basis of sex includes gender identity and sexual orientation. This view is supported by the 1998 Supreme Court case Oncale v Sundowner Offshore Services Inc, in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual assault. The Court stated that same-sex discrimination remains veritable discrimination, whether or not Congress focused on or considered it.
Title IX is a federal civil rights law, which was passed as part of the Education Amendments Act of 1972. A reinterpretation of Title IX does not mark the first time that the Trump administration has taken action against the rights of the LGBTQIA+ community—in 2017, the administration attempted to reinstate a ban against trans people from the military. Trump withdrew protections from transgender students in public schools, which enabled individuals to use the bathroom that corresponded with their gender identity. The Department of Health and Human Services has called on the Departments of Education, Justice, and Labor to adopt its definition in regulations, to ensure uniformity in the government and increase the likelihood of legislative enactment.
Trump’s politics of simplistic categories continues to exclude ever greater numbers of people. In the arena of immigration, more and more people are being defined out of citizenship, legal residence, asylum—ultimately, out of full personhood. The proposed legal changes will continue dehumanize ever greater numbers of people who do not conform to socially conservative norms, and whose gender identity falls outside the traditional boxes of “M” and “F”.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.