Is Donald Trump using transphobia — and one judge’s ruling — to launch an attack on women’s rights?

From Salon:

Hidden changes on a government website suggest Trump may use anti-trans ruling to gut sex discrimination laws

Amanda Marcotte
July 27, 2018

It’s no secret that President Trump and his administration are hostile to transgender people, even if Caitlyn Jenner only came to that realization after supporting Trump during the campaign. Trump famously decided to ban transgender people from serving in the military by declaring it on Twitter, and has aggressively resisted any effort by the courts to block him.

This administration has also pursued policies that endanger the safety of trans students in public schools and trans people in federal prisons. But now there is reason to believe that Trump isn’t just attacking trans people for who they are — though he is definitely doing that — but also exploiting prejudice against this marginalized minority to launch a broad attack on women’s rights.

Last week, the Sunlight Foundation released an extensive report on changes to the language on the Health and Human Services (HHS) website regarding the issue of sex discrimination. These changes were made in the summer of 2017 and discovered by the National Women’s Law Center, which has filed requests under the Freedom of Information Act (yet to be fulfilled), to find out why. But the fear is that soon the administration will release a rule that guts enforcement of a major provision in the Affordable Care Act meant to prohibit sex discrimination.

The provision is called Section 1557, which prohibits discrimination in health care based on race, color, national origin, sex, age or disability. Under Barack Obama, HHS codified the enforcement rules so that sex discrimination was understood as discrimination based not just on gender but also on pregnancy status, gender identity or sex stereotyping. In December 2016, in response to a lawsuit from a a religious hospital, Texas district court judge Reed O’Connor issued an injunction that undid those rules, in effect permitting discrimination based on gender identity or pregnancy termination.

The HHS website was updated shortly after that to reflect this injunction. As the Sunlight Foundation report shows, a few month later the agency took a wrecking ball to the language on the site about sex discrimination, altering far more than the passages that had addressed gender identity and pregnancy termination.

“There was widespread removal on the pages related to Section 1557 simply defining sex discrimination,” Rachel Bergman, who helps run the Web Integrity Project at Sunlight, told Salon. “We were a bit puzzled as to why the language removals were as expansive as they are.”

Specifically, the language regarding discrimination based on sex stereotyping, which is barred by the law, was removed from the website. For instance, an illustrative example of illegal sex stereotyping — in which a male patient is subject to harassment because nursing home staff perceive him as effeminate — was removed. Language explaining that sex stereotyping is “discrimination based on stereotypical ideas about gender” was also removed. Throughout the site, Sunlight’s researchers found, any reference to sex stereotyping — which again, was not an issue covered in O’Connor’s injunction — was taken down.

“When we saw these changes to the website, it was troubling because it was one part of what we expect to see, which is a general rollback” of rules against sex discrimination, explained Kelli Garcia, director of reproductive justice initiatives at the National Women’s Law Center. Her organization opposes the rollback of protections for trans people in itself, but Garcia suggested that the administration may be looking to open the door to other forms of sex discrimination as well.

“The Supreme Court has clearly recognized that you can’t discriminate against someone because they fail to meet your stereotypes about what one’s sex or one’s gender is supposed to be,” Garcia explained, citing a 1989 decision in which the court determined that it was sex discrimination to demand that women dress in a feminine fashion or to hold them to a different standard of behavior than male employees.

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One Response to “Is Donald Trump using transphobia — and one judge’s ruling — to launch an attack on women’s rights?”

  1. edith pilkington Says:

    Price Waterhouse v Hopkins is the decision Cathy Brennan thinks should be used as a compass to allow nonconforming behavior w/out acknowledging a person’s sex and the mutability of sex, which has the tendency to render post transsexual people mutilated versions of their sex assigned at birth. That has a lot of implications. For one, it justifies Lambda Legal’s promotion of public medical policy that insists patients be classified as their “assigned sex at birth”. Lambda nominated Alice Dreger’s book for their awards. Lambda had to be pressured to withdraw the nomination.

    Radtke v Miscellaneous Driver’s Union & Helper’s Union was not litigated by Lambda. It was litigated by a private law firm on a pro bono basis. It should be the guide for post transsexual litigation. In it Judge Michael Davis wrote:

    “An individual’s sex includes many components, including chromosomal, anatomical, hormonal, and reproductive elements, some of which could be ambiguous or in conflict within an individual. See In re Lovo-Lara, 23 I. & N. Dec. 746, 752 (BIA 2005). The assigned sex of an individual at birth is based only on observation of anatomy at birth, which itself may change when the individual reaches puberty. Id. at 753. Here, Ms. Radtke is anatomically and hormonally female. It would be wholly inappropriate for this Court to invent a narrow federal definition of “sex” based on the sex assigned at birth and impose that construction on a Minnesota statute.”

    Zack Ford at ThinkProgress made scant mention of the ruling when it was decided and completely elided Judge Davis’ opinion that sex is mutable and that Christine Radtke was indeed female. He tilted his one paragraph article, “Federal Judge Rules That Transgender Identities Do Not Invalidate Marriages”. That’s a total distortion. Judge Davis ruled that she could not be denied medical insurance coverage because she was actually female, not because of a so called “transgender identity”. The insurance company argued she wasn’t female. Judge Davis argued that she is. She wasn’t denied coverage because of her “transgender identity”. They were trying to deny coverage based on their insistence she “isn’t” female.

    Radtke v Miscellaneous Drivers Union should be the guide star decision for post transsexual people, not Price Waterhouse v Hopkins, which is useful for getting from point A to point B but has distorting implications when used to maintain the legal rights of those living at point B.

    I get Amanda Marcotte’s point about what Trump is trying to do. It’s important that he be stopped but writers like Marcotte really need to dig down deeper and look at the way tiny minorities are dismissed by much larger minorities who often fight for the same and similar rights, without having their needs conflated and diluted by those whose needs are not always the same.

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