The Trump Administration recently revealed plans to change the way parts of the government define sex to be based on a person’s DNA. That could spell trouble civil rights protection for Trans* employees, students, and others seeking protection based on federal gender discrimination laws. But can the Department of Health and Human Services really change anything? Find out what transgender and transsexual Americans need to know about this new proposal.
In this blog post, I will review reports that the Department of Health and Human Services is attempting to set a new definition of sex that could strip civil rights protection for Trans* employees and students from Title IX. I will explain how the law works and whether the Trump Administration has the authority to make the change.
On October 21, 2018, the New York Times broke the news that the Trump Administration -- specifically the Department of Health and Human Services (DHHS) -- is considering changing the legal definition of sex under Title IX. If DHHS goes through with the change, the agency would adopt a policy that says:
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth. . . . 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 memo is reported to have urged similar action by all the “Big Four” agencies involved in the enforcement of federal civil rights laws:
Some of these federal agencies have already taken steps to roll back Trans* protective policies put in place during the Obama Administration. However, none of those efforts go as far as DHHS’s proposed redefinition of sex.
The Times described this narrow definition as “the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.” It said the new definition would “essentially eradicate” federal civil rights protections for Trans* Americans. But that could overstate the effect of the policy on the courts.
Title IX of the Education Amendments of 1972 is the primary federal civil rights protection for Trans* Americans in schools. The law says gender discrimination is illegal in any educational program or activity that receives federal funding. That includes sex-based discrimination in:
Title IX also applies to certain employees of schools and other educational programs, particularly where the employee is also a student.
Schools that receive federal funds are legally required to respond to and prevent gender discrimination and sexual harassment that occur within their programs. When they don’t, it can be up to the Department of Health and Human Services and the Department of Education’s Office of Civil Rights to enforce the law. Students and employees can file complaints of gender discrimination with these agencies based on their inequitable treatment of students, teachers, and others within the school setting.
Just like other federal civil rights laws, Title IX does not specifically define “sex” or “gender”. DHHS says the proposed policy abides by a court order by Judge Reed O’Connor from the Federal District Court in Fort Worth, Texas. In 2016, Judge O’Connor held “Congress did not understand ‘sex’ to include ‘gender identity’.” However, other courts have regularly found otherwise. Federal courts across the country have found federal law includes civil rights protection for Trans* individuals because treating them differently is necessarily based on gender non-conformity and sexual stereotypes.
LGBT advocates and other Trans* supporters are upset by the proposed policy change. Within hours of the Times report, social media was filled with the hashtag #WontBeErased. Rallies took place in New York and Washington, where Trans* Americans and their supporters vocally and visibly opposed the policy.
But whether DHHS adopts the policy or not, it will not change the language Title IX or the cases interpreting it. As a federal statute, the law can only be modified by Congress, not the Trump Administration. Instead, the DHHS policy would determine which types of cases the government agency will choose to pursue when it receives complaints. In addition, any changes to a government agency’s policy require prior notice of the proposed changes and an opportunity for comment. This period will allow LGBT advocates to voice their opposition, and possibly stop the policy or modify it to include some federal civil rights protection for Trans* individuals.
Even if the policy is adopted as proposed, it will not change federal law or erase the cases defining sex and gender discrimination to include protection for transgender and transsexual Americans. Trans* employees and students will still be able to pursue Title IX claims against educational institutions engaging in gender discrimination. However, they will likely have to do so without the help of DHHS.
At Eisenberg & Baum, we understand the importance of federal civil rights protection for Trans* Americans. Our employment discrimination attorneys, help transgender, transsexual, and gender-nonconforming workers and students protect their rights under Title IX, Title VII, and other civil rights laws. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer or school is using your gender identity or expression against you, contact us. We'll meet with you and help create a strategy that protects you against gender discrimination.