After years of struggling for recognition of their basic human rights, the transgender community is now fighting back against complete, state-sanctioned erasure, along with a barrage of other legal attacks on everything from access to bathrooms to enlistment in the army.
As The New York Times reported in October, a memo issued by the Department of Health and Human Services revealed that the department is aiming to redefine sex, for the purpose of enforcing federal sex discrimination protections, as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.” It also proposed adhering to the “sex listed on a person’s birth certificate, as originally issued…unless rebutted by reliable genetic evidence.” The memo’s language triggered widespread protest and drew condemnation of its regressive understanding of science and gender.
The National Center for Transgender Equality (NCTE) declared that the administration was “effectively abandoning our right to equal access to health care, to housing, to education, or to fair treatment under the law.” Community activists rallied nationwide, proclaiming that trans people would “not be erased.” But the proposal is just part of an escalation in attacks on LGBTQ rights under federal law. Since Trump took office, a number of federal agencies have clandestinely scrubbed policy guidance on gender identity from their publications, including most recently the Office of Personnel Management, which quietly excised a basic advisory on antidiscrimination and privacy protections for transgender government employees.
Capitalizing on right-wing backlash against the gradual expansion of civil-rights protections in workplaces and public spaces in recent years, Trump has throughout his term rolled back or blocked numerous Obama-era measures for protecting transgender people from discrimination in the military, schools, public programs, and private workplaces. Last year one of Trump’s first executive actions was to unilaterally withdraw the Obama administration’s guidance on protections for trans students under Title IX. The administration is also rolling back transgender people’s access to health care under the Affordable Care Act. A recently issued immigration rule now threatens to block humanitarian claims from LGBTQ asylum seekers.
Although the leaked HHS memo was not made public, the Justice Department argued openly for a similar anti-trans position in a recent brief to the Supreme Court. That case, which centers on employment discrimination against a trans worker at a funeral home, could come before the Supreme Court in this coming year, and if the decision comes down against the worker, could essentially establish that federal civil-rights protections do not apply to gender expressions. Essentially, the Justice Department is attempting to write trans people out of the law with a circulatory argument: asserting simultaneously that transgender people are not protected under sex-based antidiscrimination laws, yet invoking the concept of “biological” sex to justify their discriminatory treatment—in other words, by sexually discriminating against them due to their gender identity or expression.
As NCTE Executive Director Mara Keisling summarizes, “They think they got all clever and figured out how to define sex without transgender people. But as the judge said [in a lower court hearing of the funeral home case]…they can try to define sex without trans people, [but] they’re not going to be able to define trans people without sex, and therefore we’re covered.”
According to Greg Nevis of the LGBTQ-rights group LAMBDA Legal, aside from the administration’s self-defeating legal rationale, there has been a long-standing trend in federal courts consistently affirming transgender people’s civil rights. Although an administration could diverge from past federal policies by changing its interpretations of certain regulations, Nevins says, “Agencies can change their mind, but it has to be done in a thoughtful [way] and a way that explains why they went down the wrong path before and what their stance is based on. And that’s not what we’re seeing with this.”
A separate legal battle is also heating up over the administration’s effort to ban transgender people from military service. In late November, the Justice Department tried to force a Supreme Court review of three lower-court rulings suspending the policy, and last week, according to Think Progress, filed new arguments warning that suspending the ban posed “too great a risk to military effectiveness and lethality.”
Beyond the existential threats embedded in the administration’s legal rhetoric, trans people are currently facing more immediate material dangers: They are already besieged by hugely disproportionate levels of poverty and unemployment. About 30 percent of trans workers report experiencing work-related discrimination or harassment, including getting fired, according to the 2015 US transgender survey. Now the administration’s manipulation of the law further exposes trans people to even harsher risks, such as being forced out of military service or barred from educational facilities. Hate-driven violence is also increasing: Documented anti-transgender hate crimes rose by more than 180 percent in 2017, according to federal data.
“Trans people are really scared right now,” Keisling says. They’re facing down the president of the US.” In the current climate, “There’s a real…emotional and mental-health cost to this just lawless posturing and extremism and cruelty.”
Despite the heightened social barriers they face, the trans community is becoming more “mainstream” everyday. “The cultural consensus is, and always has been, the most important part of it,” Keisling argues. “I like to say that the most important work that any LGBTQ person or ally can do is to educate people: to tell their stories to their classmates, and educate the people they worship with, and educate their coworkers and their companies.”
To resist Trump’s crackdown on LGBTQ rights, many jurisdictions have already enacted state and city-level trans anti-discrimination protections that expand on federal civil-rights law. But Keisling cautions that “the more we rely on civil rights being a state-by-state thing,” under a patchwork of different state-level policies, “then people in certain states are always going to be disadvantaged and mistreated.”
Beyond the courts and the Oval Office, trans people, through their everyday lives, have spent decades affirming their personhood as citizens, kin, partners, students, and workers. It’s not just that the White House can’t deny their visibility; their vital presence in American society is already undeniably visible.
So whatever the White House orders this week or any other, Keisling sees a long—and winnable—fight ahead: “We’re really confident that, as of now, case law is absolutely on our side. Logic is on our side. Science is on our side. And Donald Trump isn’t.”