On October 21, The New York Times reported receiving information from the White House that details how the Trump Administration proposes to impose a multi-agency re-interpretation of “sex” under several civil rights laws to mean “[t]he sex listed on a person’s birth certificate, as originally issued.” Further, it would codify “sex” as only existing in a binary of male and female “based on immutable biological traits identifiable by or before birth,” despite scientific evidence to the contrary. This development would not only erase transgender, non-binary, and intersex people by definition and in protections under the law, but also re-entrench a Christian Right vision of gender that is based on “complementarity,” the idea that God made man and woman to serve their own roles and to fit together, literally and figuratively. What the administration proposes is the culmination of a Christian Right strategy to attack gender equity and justice.
Anti-transgender leaders have made their way into the Trump Administration with the minimum bipartisan support required for confirmation in the deeply divided Senate. Roger Servino is the head of the Office of Civil Rights within the Department of Health and Human Services, and likely leader of the push to re-interpret “sex.” Servino previously led the DeVos Center for Religion and Civil Society at the Heritage Foundation. While at Heritage, Servino repeatedly celebrated the passage of anti-transgender legislation and attacked the Obama administration for its support for LGBTQ people. In 2016, Servino wrote for the Heritage-affiliated Daily Signal that “[LGBT-inclusive non-discrimination] laws cannot help but harm religious liberty.” The rhetoric that LGBTQ-inclusive laws somehow undermine religious freedom has been flaunted by the Vice President and other state legislators for years, and resulted in the passage of nearly a dozen laws permitting some level of LGBTQ-targeted religious exemptions, including four states which permit medical professionals to decline to serve LGBTQ patients.
Servino is not the only anti-LGBTQ voice in a position to undermine civil rights protections at the federal level. In early October, the Senate confirmed the appointment of Eric Dreiband as head of the Department of Justice’s Civil Rights Division. Vanita Gupta served in this position in the latter years of Obama’s presidency, after the Senate refused to confirm a successor to Tom Perez. Gupta famously led the DOJ’s suit against the State of North Carolina and the University of North Carolina in the wake of HB 2, the “bathroom bill.” North Carolina lost the suit, and amended its law. Dreiband represented the University of North Carolina in that suit.
And Betsy DeVos, Secretary of the Department of Education, namesake of the DeVos Center for Religion and Civil Society at the Heritage Foundation, billionaire donor (along with her family) to the Republican party, and strong school-voucher enthusiast, has mounted a full-scale assault on transgender and gender non-conforming students. One of her first actions as Secretary was to roll back guidance the Department had issued under the Obama Administration. The guidance had clarified how schools and school districts were to best support transgender and gender non-conforming students under Title IX, the federal civil rights law that prohibits sex discrimination in schools. Since the roll-back, the Department of Education has refused to hear cases of discrimination in education from transgender and gender non-conforming students.
In early October 2018, the Department of Education agreed to hear a case filed by the Alliance Defending Freedom, a Christian Right legal organization responsible for many of the anti-transgender law suits, bills, and laws filed across the country. This particular suit alleges that in Georgia the Decatur School District’s transgender-inclusive bathroom policy somehow contributed to the assault of a young student. ADF’s statement on the case echoes the language used in the inter-agency memo issued this weekend and the Evangelical- and Christian-Right’s arguments for anti-transgender advocacy: “Superintendent Dude and the Board were repeatedly warned through written statements and public comment that the Policy would unacceptably inflict the loss of privacy and loss of safe private spaces for girls.”
This loss of “privacy and safety” was a refrain at the Family Research Council’s Values Voter Summit this year, for which the Vice President was the headliner. Multiple speakers brought up “gender ideology,” discredited “rapid-onset gender dysphoria,” and other false specters supposedly posed by transgender and gender non-conforming people. “Gender ideology” is a catchall term that Christian conservatives use to consolidate all their objections to treating LGBTQ people with dignity into one scary talking point. The crowd was incredibly receptive, giving a standing ovation to one anti-transgender activist who detailed her efforts to fight “graphic gender-bending sex ed” in her children’s schools.
The proposed federal redefinition of sex comes alongside multiple efforts to roll-back or preemptively strike at efforts to expand rights for transgender people across the world. Small but vocal factions, like the Values Voter attendees and Pence’s Evangelical-right followers, are giving these campaigns a reception and platform that extend their impact. For example, the Massachusetts Family Institute pushed a question onto the 2018 state ballot that seeks to repeal public accommodations protections on the basis of gender identity. And in the UK, a government-sponsored consultation on a proposed revision of the Gender Recognition Act has sparked intense debate. Elsewhere there are hopeful signs of justice, as New York City now offers a third gender marker to be added to birth certificates for non-binary people, and Uruguay passed “Ley Integral de Persona Trans,” making gender-affirming health care a human right.
Back in the United States, the proposed federal re-definition of “sex” is not a surprise, nor is it merely a tactic for pandering to the Administration’s strong Christian Right bases (although it will certainly have that impact). It is a natural culmination of years of work by anti-transgender advocates, now placed into positions of power within an administration that favors narrowing the availability of civil rights protections.