By Masha Gessen
October 22, 2018
On Sunday, the Times reported that the Trump Administration plans to change federal civil-rights law to include a definition of sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.” The language, if adopted, would mean that the federal government would effectively stop recognizing the very possibility of a person being transgender or intersex.
For the Administration and its supporters, the move reverses what the right sees as executive overreach that, during the Obama Administration, expanded the rights of transgender people. Among the Obama-era moves were guidelines, issued by the Department of Education, in May, 2016, that directed school administrators to recognize students’ gender identity regardless of the sex indicated in their documents and to enable students to use bathrooms consistent with their gender identity. Trump’s Education Secretary, Betsy DeVos, revoked these guidelines almost as soon as she was confirmed. Trump’s campaign had promised to return Americans to an imaginary past that was both greater and simpler, and reversing gains in transgender rights was consistent with that promise. It stands to reason that news of potential sweeping changes to civil-rights law would emerge on the eve of the midterm elections.
The Office for Civil Rights at the Department of Health and Human Services is now run by a man named Roger Severino, whose last job was as the director of the Heritage Foundation’s DeVos Center for Religion and Civil Society. In that capacity, Severino repeatedly wrote about the dangers of “gender ideology,” a term that for years now has been used to mobilize extreme social conservatives worldwide. “Gender ideology” refers to an imaginary Marxist movement to erase differences between men and women. The spectre of “gender ideology” was used in a successful campaign in Australia to scrap a government program called Safe Schools, which was designed to make schools safer for L.G.B.T.I.Q. students. “Gender ideology” was the enemy the Hungarian government was fighting when it revoked recognition of gender-studies degrees this month. These changes, like the attacks on transgender rights in the United States, are politically expedient and logical: reversing the most recent and most rapid social change makes it seem like the promise of a return to the imaginary past will be fulfilled.
But, for transgender and intersex people, having rights taken away is just not a return to a time before those rights were gained. It is worse. It is traumatic. It can have the effect of leaving people exposed because they don’t have a closet to return to. It can create absurd legal situations—if, for example, state-issued identity documents are not recognized by the federal government. The revocation of rights feels violent because it is violent, in part because the effort is aimed at preventing the rights from being reclaimed. It is probably for this purpose that draft changes to the law include a proposal for genetic testing to determine sex, according to the Times. James Hamblin, a writer for The Atlantic, interpreted this provision as “proposing widespread genetic testing and keeping records of citizens’ genitals.”