By Ollie Gratziger | Opinions Editor
LGBT rights organizations around the country are speaking out following a controversial memo unearthed by the New York Times, which could adversely impact the lives of transgender Americans.
On Sunday, Oct. 21, the Times reported that the Department of Health and Human Services “is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance.” The department argued that gender must only be determined “on a biological basis that is clear, grounded in science, objective and administrable,” claiming that sex is “either male or female, unchangeable and determined by the genitals that a person is born with.”
The memo went on to say that any dispute about gender identity contradicting the sex stated on a person’s birth certificate “would have to be clarified using genetic testing.” If that sounds scary, it’s because it is. If it doesn’t, read it again.
So what does all this mean for transgender citizens?
Right now, it’s hard to say with certainty what will happen, but whatever it is, it won’t be good. The proposed definition isn’t finalized yet, though given Attorney General Jeff Sessions’ track record — he claimed in October 2017 that civil rights law does not necessarily prohibit discrimination based on gender identity — there isn’t much hope that it’ll be overruled or thrown out.
If the new definition is accepted, it’ll probably be felt strongest in the debate over bathroom and locker room use in schools. Previous Obama-era decisions protected transgender students who chose to use the facilities that corresponded with their gender identity. Now, though, there will be no federal protections in place to protect trans folks from discrimination, because as far as the government is concerned, there will be no such thing as transgender despite more than 1 million Americans identifying with the term in some capacity.
It’ll also be felt in the hiring process. On Oct. 24, Bloomberg Law reported that “the Justice Department … told the U.S. Supreme Court that businesses can discriminate against workers based on their gender identity without violating federal law.”
If there are no federal protections in place to prevent transgender individuals from being discriminated against, what’s to stop malicious employers from refusing to hire them? The new definition hasn’t even been formally passed yet, and I’ve worked a job at which the employer refused to pay me after he’d learned I’m transgender. He tried to get another employee to “convert” me to a good, Christian girl, even after I’d quit. (Spoiler alert: It didn’t work. I’m still trans, and I still haven’t been paid!) But nonetheless, this phenomenon isn’t uncommon at all, and it’ll almost certainly get worse if the legal barrier is removed.
The redefinition and accompanying bigotries of the Justice Department form a blatant attempt at defining a whole community out of existence. Except the transgender community will still exist. Our rights will just be limited to what the government deems acceptable. History has shown us this picture before, and it still seems as though we haven’t learned a thing.
Furthermore, intersex individuals — those who were born with genitalia that doesn’t correspond to traditional notions of “male” or “female” — are left out of the definition entirely. It seems hypocritical for the administration to say the new definition is “grounded in science” when it fails to recognize that which medical professionals and scientists alike have proven to be true: Transgender and intersex people have existed historically, exist now and will continue to exist regardless of the government’s semantics or systemic marginalization.
Fascist regimes have the habit of citing pseudo-science as the reason behind hateful acts, sometimes as a way to pacify the centrists who might otherwise question why and sometimes as a way to demonize the left as unscientific or overly emotional “snowflakes.” I think the Trump administration is guilty of both.
All the facts in the world can’t make sense of why anyone feels this cruel and Orwellian move is necessary. After having already attempted to bar transgender folks from joining the military, along with challenging the rights of the community to receive healthcare benefits, the government has proven its own bigotry time and time again. We live in an era of fear mongering and perpetuated otherness, where every step forward in civil rights is met with a violent shove back.
It should be evident that all people are granted the right of self-determination, to express themselves outwardly in a way that aligns with their inner sense of personhood. I can’t stress this enough: What people know about themselves is being negated simply because the government doesn’t agree with it or believe it to be true. People are being told that they cannot be something that they know they are, something they’ve been for their whole lives, because the Trump administration and Health Department don’t think it exists. This kind of governmental gatekeeping is a characteristic of an authoritarian state in its early stages. Today, it’s transgender and intersex people. Tomorrow, who’s next? And the day after that?
There exists a quote by Martin Niemoller, a German Lutheran pastor who spoke up against the Nazis toward the end of World War II, etched into stone at the New England Holocaust Memorial in Boston. It reads, “They came first for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I wasn’t a Catholic. Then they came for me, and by that time there was no one left to speak up.”
Transgender rights are human rights, and human rights are everyone’s business. As members of the human race, we have to protect each other when the government fails to do so. It’s easier and more effective to speak up at the beginning of something bad than it is to speak up at the end.
No matter what anyone in the administration thinks, transgender people are neither a threat to nor a burden on American society. We participate in it fully as teachers, students, workers, lawyers, doctors, writers, journalists, activists, politicians, artists and perhaps most importantly, voters. With Nov. 6 coming up fast, this move should be the accelerant on the flame that urges people to get out and vote in the midterm elections. It sometimes feels like voting is the only right we have left.
My transgender identity is as much a part of me as my nearsightedness and my allergy to penicillin, but it’s hardly an affliction. I was raised to value diversity and to celebrate differences rather than fear them. It seems that members of the Trump administration can’t say the same.
No matter what they do, though, one thing remains certain: We aren’t going anywhere, except to the voting booths to get bigots like these out of office.