Pursuing an Un-Civil Rights Campaign

Terry H. Schwadron

Oct. 21, 2018

What? The Trump administration now thinks transgender people shouldn’t exist, and so, now, wants to write them out of federal protection regulations.

A report in The New York Times details a memo circulating in the Department of Health and Human Services that would define gender as determinate by genitalia at birth.

From there, it is a small jump to eliminate any regulations in education and schools, in health care or, presumably for participation in the military, that had been adopted in the last few years of the Obama administration to protect transgender people.

Depending on where one stands, this is either a civil rights outrage — my vote — or a quieting move for the discomfort of social conservatives, including evangelical Christians.

The narrowly legal definition treats gender in federal programs as immutable, and any dispute about one’s sex would have to be clarified using genetic testing.. The gender discrimination rule is reflected in Title IX, which bans discrimination in education programs that receive government money. It has been used to require looser access to bathrooms and dormitories, provide for single-sex programs, offer job and housing protections, among other practical application of law.

The department argues that key government agencies need an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.”

Kind of like Climate Change, I guess. I thought until this morning that Science was only for lefties.

According to the memo, “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.”

Tell that to the 1.4 million transgender Americans. Tell that to the medical community dealing with a rising number of gender transformation surgeries. Tell it to the entertainment industry, which has found widespread interest in “Transparent,” and other broadcasts. Tell it to the military, which has responded to its soldiers, airmen and Marines who have reported themselves as transgender., a move that the White House had tried to block.

According to the Times, several agencies have withdrawn Obama-era policies that recognized gender identity in schools, prisons and homeless shelters. The administration even tried to remove questions about gender identity from the 2020 census and a national survey of elderly citizens. Roger Severino, the director of the Office for Civil Rights at the Department of Health and Human Services, declined to give The Times details about the memo or his role in the interagency discussions, but did confirm that the change came about as a result of the department’s own reading of the laws and a related court decision. Severino had been the head of the DeVos Center for Religion and Civil Society at the Heritage Foundation and had written criticism of the Obama administration viewpoints on transgender rights.

The Times quoted from one commentary piece in which Severino called the policies a “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.”

On the other hand, recent court decisions have upheld interpretations to protect job protections for transgender people. Still, one 2016 federal court case in Texas said that Congress did not understand sex to include gender identity.

The Education Department and HHS will allow for public comments on the proposal this fall before the change takes effect. The Justice Department also must review it, though Atty. Gen. Jeff Session has opposed extending protections in transgender cases.

We have a choice in this country to step on the next person or to show some empathy for a different position. Civil rights efforts over decades have taught us that we are a better society for being inclusive, rather than insisting on a singular American culture that leaves Americans feeling on the outside looking in.

In this case, we’ve started down a path — admittedly arguing about some pretty dumb things like bathroom labels. It would be much better to be reading that the government was reaching out to these same inciting social conservatives to help them deal with their intransient and discriminatory views.

What is it about the Trump administration that has made these discussions so rigid, so reflective of its political reliance on a white, evangelical, singular Christian outlook? This nation is by its definition a living federation with a tradition and responsibility to make others feel more comfortable, not less. Why is it that success for one emergent group only is seen as loss for another?

Let’s Make America Empathetic Again.