October 21, 2018
This morning, the New York Times broke the story that the Department of Health and Human Services under the Trump administration is “[considering] defining transgender out of existence” — specifically, enshrining a definition of gender within the federal government that ties it immutably to sex as assigned at birth (as documented by a birth certificate “as originally issued”), with no recognition of an individual’s self-determined gender later in life.
The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.
The NYT appears to have drawn this information from a memo circulating within the DHHS, which argues for these changes but does not make them official. It isn’t confirmed that the Department will go forward with this; even if they do, the Departments of Education, Justice, Health and Human Services, and Labor would also have to accept this definition for it to be uniformly applied in higher-up government policy. In terms of legal understandings of trans identity in the courts, the Department of Justice is the most important factor; although it is technically possible that the DOJ could part ways on the issue, the department’s history on trans issues under Jeff Sessions leaves little hope for that possibility. The issue is expected to be presented to the DOJ by the end of the year.
There’s little to draw on as far as legal precedent to understand the specifics of how this would work; it’s unusual to say the least for a government agency to “define” such a fundamental cultural concept out of nowhere. Although the Obama administration issued guidance on legal interpretations for courts regarding sex and gender, they generally functioned as guidance, not commandments. In recent legal memory, previous to the repeal of DOMA the federal government did have a definition of marriage as “between one man and one woman,” it was tied into a specific law, the Defense of Marriage Act, passed by conference. Like so much of what the Trump administration has done, this move appears to be an attempt to circumvent Congress and the courts and force through a bigoted agenda. Also like so much of what the Trump administration has done, it’s so unexpected and confusing that it’s hard to say how specifically it will play out.