Trump Administration Considering Policy That Anchors Sex in Biology

Dr. Rachel McKinnon, center, on the winner's stand after winning a women's cycling championship. McKinnon is a biological male.

By Published on October 21, 2018

The Department of Health and Human Services (HHS) is seeking to create a legal definition of sex under Title IX, a federal civil rights law the deals with education, The New York Times reported Sunday after obtaining a memo from the administration.

HHS will define “gender” as determined “on a biological basis that is clear, grounded in science, objective and administrable,” according to the memo, TheNYT reported. The definition would define gender as either female or male, according to the person’s genitalia at birth. Discrepancies would be determined by genetic testing, the memo indicates.


But the language refers to “sex,” not gender. “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the memo reads. “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.”

The Trump administration claims that former president Barack Obama instituted policies that wrongly allowed “sex” to include homosexuality and gender identities, which paved the way for individuals to choose their gender.

“Courts and the previous administration took advantage of this circumstance to include gender identity and sexual orientation in a multitude of agencies, and under a multitude of laws … [leading] to confusion and negative policy consequences in health care, education and other federal contexts,” the memo reads.

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HHS’s Office for Civil Rights Director Roger Severino in 2016 called Obama’s policies the “culmination of a series of unilateral, and frequently lawless, administration attempts to impose a new definition of what it means to be a man or a woman on the entire nation.”

HHS will present the new definition of sex to the Department of Justice by January 2019, according to Trump administration officials.

The new policy would affect the status of “transgenders” serving in the military as well as students who identify as the opposite sex. Since Obama loosened the definition of Title IX, divisive battles have been fought over which bathroom students can use in school as well as what sports teams they can play on. Companies have adopted plans covering the cost of therapies and surgeries for transitioning employees. Some states have mandated that insurance companies pay for sex-change operations and other cosmetic procedures. 

Trump instituted a ban on such persons serving in the military in August 2017. A U.S. district judge blocked the move in October, ruling that the policy was a Fifth Amendment violation. Defense Secretary Jim Mattis also froze the implementation of Trump’s ban in August shortly after Trump called for the measure to take effect.

The Pentagon paid for the first U.S. active-duty soldier to have a sex-change operation in November 2017.

News of the proposed change has many people feeling afraid and uncertain, according to Human Rights Campaign legal director Sarah Warbelow. “Transgender people are frightened,” she said, according to TheNYT.

The proposed definition is “an extremely aggressive legal position that is inconsistent with dozens of federal court decisions,” National Center for Transgender Equality policy director Harper Jean Tobin told TheNYT.

The proposed policy comes after the World Health Organization (WHO) announced in June that it won’t classify being transgender as a mental disorder in its upcoming issue.


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