The Trump administration has spent the past two years attacking the rights of trans people. But the president’s biggest assault may be imminent: In October, The New York Times reported on a leaked memo from the Department of Health and Human Services and said that by the end of this year, the White House would likely seek to redefine “sex” under federal law as being based on the genitals a person is born with—a move that could lead to the loss of civil-rights protection for some 1.4 million trans and gender-nonconforming individuals.
I caught up with Chase Strangio, a staff attorney at the American Civil Liberties Union’s LGBT & HIV Project, who has represented plaintiffs like Gavin Grimm, a transgender student who sued his school district after he was barred from using the boys’ bathroom, and Chelsea Manning, the former Army private and whistle-blower who spent seven years in military prison after releasing documents to WikiLeaks. We talked about the political implications of codifying bodies and why, despite all the devastation in the news, Strangio still has hope.
NGL: Let’s start with the memo. I think there’s been some lack of clarity about what it legally did and did not do—can you talk about that?
CS: The memo is an internal document that reflects the administration’s goals with respect to trans people and the law. We have known for a long time that this administration is invested in attacking trans and nonbinary people. The goal is to say that “sex” under federal law means what they have called “biological sex.” And that is defined in such a way as to exclude trans people from coverage under civil-rights laws—but also to go much broader, rolling back decades of case law interpreting federal civil-rights laws to protect anyone who departs from sex stereotypes.
The memo itself is just their goal; it’s not self-executing. That said, it reflects this sweeping framework of erasing trans people from the law. So there’s reason to be freaked out—but also, it didn’t do all of the things already that people are worried it’s going to do.
NGL: You’ve said that this entire conversation becomes harmful to our community, and that’s something that I’ve really felt as a genderqueer person. We know that Trump’s tweet alone didn’t mean that we suddenly had a ban on trans people in the military; in the case of this memo, the law hasn’t suddenly changed. But there’s also the vast impact on climate that these tweets and memos and comments have, regardless of their legal implications.
CS: On some level, it doesn’t matter whether this is law or not. The reality is people have felt under attack their entire lives, and so this all-out assault on the very core of what it means to be the person that you have fought to be is devastating. Just seeing the headline is a trauma. And that’s not to mention what it feels like to ask yourself, “Well, am I going to be fired? Am I going to be able to go to school? Am I going to be able to get my identification documents updated?”
There’s a cumulative effect of this strategy to situate trans people and gender-nonconforming people as a threat to others through the false and antagonizing messaging of this shadowy, predatory figure in the bathroom. As a factual matter, it’s preposterous. But there have been these horrible narratives that trans bodies violate the privacy of others just by existing in proximity to them. None of this bears out, but it doesn’t matter. People’s emotions are played on, and then people vote or act based on fear.
And the toll on the community is that we are seeing images and messages that tell us we are bad, we are dangerous, we are fraudulent, and that we shouldn’t exist. When you’re subjected to that in all aspects of your life to the point where the government is trying to “erase” you, it does not feel good.
NGL: In an interview with Democracy Now!, you said, “There may be things that are typically true in science…. But it’s a political choice to make that definitional, to say men have to have certain bodies in order to be men…. These are political choices that are part of a long legacy that is very much connected to colonialism, white supremacy, and efforts to exclude people from participation in society.” I wonder if you could say more about this.
CS: When we think about our bodies, or science in general, there are very few things that fit neatly into a binary. So it becomes part of our political structures to decide what things are definitional. We see this all the time in the law—not just in the context of gender and bodies, but also in how the legal definition of “whiteness” constantly changes to exclude people and maintain power.
There is this series of Supreme Court cases from the turn of the 20th century where you had federal immigration laws excluding people from gaining citizenship. You had one case saying that you have to be “Caucasian” to naturalize. And then, in a subsequent case, you have an individual of South Asian descent who, under this anthropological construction of what is a Caucasian, says, “Well, I am Caucasian—I should be able to naturalize.” But this person is brown-appearing. And the Court changes the definition right there and says, “No, no, what we mean is: That which is commonly understood to be white.”
Systems of power are always going to deploy definitions for the purposes of exclusion. And that’s exactly what’s going on here.
NGL: You’ve talked about the fact that we’re largely winning in the courts, which is good! I’m interested in whether there are any cases that we should be watching right now.
CS: There is a case that the Supreme Court hasn’t decided whether or not to take. It’s a case that the EEOC [Equal Employment Opportunity Commission] under Obama had brought against a funeral home in Michigan that had fired a worker after she told her employer that she was going to transition. The question in that case is: Is it prohibited sex discrimination under Title VII to fire someone because they’re trans? It’s really the question that this memo is about. Aimee Stephens, the worker, won in the lower court. The employer has asked the Supreme Court to review and overturn the lower court decision. We are representing Aimee Stephens, and we are asking the Court not to take it. Folks should be paying attention to this, because if the Supreme Court takes it, it will have a huge impact.
NGL: We’re now almost two years into this administration. I’m wondering how you deal with the exhaustion and despair. Where are you drawing strength and hope from?
CS: I love being queer; I love being trans. I love who I am. And it took me so long to get to that point—I hated myself for so long. Finding that ability to feel at home in my body and in the world is something that feels like a blessing. And since I’m alive at 36 years old, I’m like, “All right—we’re gonna do what we can. And I’ll give what I can.” Connecting with other human beings is the thing that gives me hope in the end.