An article in Pacific Standard Magazine (10-22-18) reports the move by the Trump Regime, in a draft memo from HHS, to interpret Title IX of the US federal code to define ‘sex’ by one’s genitals identified at birth and as immutable throughout life:
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” reads a draft of the HHS memo on the proposal, according to the Times. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”–Jared Keller, Pacific Standard Oct. 22, 1018
This change in the interpretation of Title IX has to be approved by the Dept. of Justice for it to become administrative law. It could be challenged in two ways: (1) in a case before the Supreme Court, which is likely to fail because the Court is increasingly turning against LGBT human rights; or (2) by Congress through legislation–which might be possible after the 2018 mid-term elections.
So if this new interpretation becomes law, what does this do to trans people?
First of all, it vastly complicates and diminishes the rights of babies born Intersex, whose genitalia, reproductive organs or sex chromosomes may not be conventionally identified at birth as male or female. It will likely increase the pressure to inflict gender-corrective surgery on intersex babies to make them conform to a ‘male’ or ‘female’ designation on their birth certificates.
Second, it literally erases the identities of transgender people at every stage of life and strips them of the meager human rights they have managed to acquire so far. From Pacific Standard:
“The new HHS measure, much like Sessions’ memo, effectively shifts transgender Americans away from a protected class “subjected to systemic oppression and forced to live in silence,” as a recent federal court decision put it, to one effectively cast aside by the justice system. The National Center for Transgender Equality called the HHS proposal “an attempt to put restraints on the lives of 2 million people, effectively abandoning our right to equal access to health care, to housing, to education, or to fair treatment under the law.” Indeed, the proposed HHS measure is more than a legal monkey wrench; it would effectively regulate transgender Americans out of their legal existence, rendering them invisible in the eyes of the law.” –Jared Keller, Pacific Standard Oct. 22, 1018
Here are just some of the most egregious losses of human rights that would follow:
• Trans women in prisons will be housed in men’s prisons with increased vulnerability to being assaulted, raped and killed.
• Trans people will be denied access to public restrooms and other gender-specific facilities in schools, hospitals and places of business. As a result, they will face greater risk of violent assault and arrest for using the ‘wrong’ facilities.
• The loss of legal status translates to a loss of social status, likely resulting in a dramatic increase in violent assaults, murders and suicides of transgender people.
• Trans people who are assaulted by others for being transgender will not be able to prosecute those assaults as ‘hate crimes’ because there will be no protective designation for gender-nonconforming people.
• Trans people will be denied access to trans-specific health care, including hormones and gender-affirming surgeries.
• Transgender status, still labeled as the disorder ‘gender dysphoria’ in the DSM V, will continue to be treated as a disorder or mental illness. This will likely lead to an increase in the confinement of trans people in locked wards of mental hospitals with forced medications, the ‘treatment’ of said disorder by forcing them to recant a gender non-conforming identity. It will also likely lead to a failure to treat the PTSD, depression and suicidality caused by their discrimination and abuse as trans persons.
• Discrimination towards trans people based on gender-nonconforming status, in employment and housing, in public services or places of business, will not be illegal or prosecutable because, literally, they don’t exist. They will have no standing as ‘persons’ before the law as transgender people, much the same as women were not ‘persons’ before the law as ‘women’ prior to cases that affirmed the separate legal status of women apart from their husbands.
• Trans people will be denied the right to change the gender designation on their legal documents, including their birth certificate, driver’s license, and passports. They will be denied the right to use their preferred names and pronouns to access public services.
• Trans people are more likely to be ‘dead-named’ in their death certificates and obituaries, that is, to be announced as their given-name and gender prior to a name or gender change.
I will likely think of a few more as time goes on, but these are the most immediate and egregious.
This change to the law of Title IX is likely to come into effect as administrative law because there is a very small, but very vocal, cadre of women who want sex designation to be defined as fixed at birth and immutable, and they want to prevent those born with penises to be designated as ‘female’. The Trump Regime and both Republicans and Democrats in Congress will amplify and exploit those few women’s voices to great effect, to show that so-called ‘feminists’ support the new law. That’s why it’s absolutely critical for women of all colors and feminist sympathies to oppose this change to the interpretation of ‘sex’ under Title IX.