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November 5, 2018 in inQueery

What is the Department of Health and Human Services doing to trans people right now?

A leaked memo has shown that the Department of Health and Human Service (HHS) is planning to redefine gender based solely on an individual’s biological sex at birth. This would have wide-ranging legal consequences for trans people and their allies.

Here’s a breakdown of what we know so far and what we can expect:

The Leaked Memo

On Sunday, October 21st, the New York Times published an article revealing that HHS had been circulating a memo narrowly defining sex as “a person’s status as male or female based on immutable biological traits identifiable by or before birth.” This memo has apparently been drafted last Spring and officials are hoping to enforce its content by the end of 2018.

The document also states that “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 spirit of those two sentences can be summarized very succinctly:

  • A person can only be identified through their biological sex at birth.


  • That identity cannot change over the course of a person’s life.



HHS’s Reasoning

This memo all but abolishes the concept of gender identity in favor of a perceived biological sex. Why would HHS do such a drastic thing? Because they want to. And because they can. Or at least they think so, based on a Federal District Court judge’s 2016 ruling that they have been clinging to and which states that “Congress did not understand ‘sex’ to include ‘gender identity.’”

Quoted by CNN, HHS spokesperson Caitlin Oakley declared: “Everyone deserves to be treated with respect and HHS’s Office for Civil Rights will continue to vigorously enforce all laws as written and passed by Congress, prohibiting discrimination in healthcare on the basis of race, color, religion, national origin, sex, age, and disability.”

This is really bad and not only because, again, someone from the Trump administration is serving us some platitude about how everybody should be treated with respect while taking actions that are actually deeply disrespectful of a minority, but also because this is an official statement that pointedly excludes gender when it comes to the legal definition of discrimination. The message here is that the HHS does not care about this whole gender thing. It has moved on and it would like you to do the same, thank you very much.


The Legal Consequences

According to the New York Times, HHS is trying to get other branches of the government to recognize its definition of gender and apply it in their policies. Those departments are the Department of Education, the Department of Labor and the Department of Justice. So…yeah, the departments that regulate basically all major aspects of human life: school, work and justice.

If those departments side with HHS, which is likely since the Department of Education and the Department of Justice are helmed, respectively, by Betsy DeVos and Jeff Sessions, who are no champions of LGBTQ right, trans people’s rights would be threatened on many, many levels.

This seems especially petty considering that, before everything turned to crap, protections for trans people were growing in those fields, in part thanks to moves taken by the Obama administration. But everything that has come out of the previous administration apparently has to be obliterated, which brings us to our next point.


A Move in Line with the Trump Administration’s LGBTQ Policies

Although, during his campaign, Trump pledged to defend L…G…B…T….Q rights, everything he has done since being elected has taken the exact opposite direction. I mean there’s a reason he’s been embraced by evangelicals and chose someone like Mike Pence as his Vice President. It started just a month after he took office when the new administration withdrew an Obama-era rule allowing transgender students to use the bathroom of their choice.

Later that year, Trump tweeted that he would ban transgender people from serving in the military (the White House later tried to implement that ban, but it was quickly reversed.)

Then, in October, the Department of Justice threw out a standard set by the Obama administration by taking away anti-discrimination protections from transgender workers.  So, yeah, 2017 was a busy year for bigots.


What is Next?

I hate to use the term “culture war,” but it seems like this is where we’re at now…

An oft quoted statement in reports about the HHS memo was made by Tami Fitzgerald who is at the helm of a conservative think tank. She welcomed the HHS’s proposal as “critical in this confused world to define these terms as Congress intended them when federal programs such as Title IX were passed.”

Confused world? I am sorry we confused you Tami. I am sorry our gender fluidity, gender non-conformity, androgyny, rejection of monogamy, etc. have given you a headache. I guess it is only fair that you and other bigots respond to this anxiety that the mere thought of people living their lives differently than you caused you by trying to annihilate LGBTQ people. Our bad.

And what can we do? Well, you know, the usual. Call your representatives, call HHS (I’m writing them a letter because apparently it has a stronger impact than calls or emails since the way the government works is a tad outdated I guess). Stay informed, VOTE, donate to organizations that help trans people, and, if you live in a larger city, check if there are any marches and protests you can join (there have been some already).

This is also a good time to remind ourselves to be there, on a personal level, for the people who have been hit the hardest by the current administration’s policies. Call your loved ones. Tell them they matter. Progress is not linear, and we can make it through this.



Anne Errelis is a Staff Contributor with InQueery.