A lot of people have been asking what the memo leaked by The New York Times means. Here's what you should know.
What does the memo actually say, in practicality?
It is basically a memorandum by the Department of Health and Human Services proposing that the departments that enforce Title IX of the Education Amendments of 1972 (HHS, Justice, Education, and Labor) should uniformly define gender "on a biological basis that is clear, grounded in science, objective and administrable." The new definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with. Any dispute would have to be clarified using genetic testing.
How is this erasing transgender people?
It essentially argues that transgender people don’t exist as a distinct class of people because they are already classified as male or female biologically. If people do not exist as a distinct class or are already covered by a different classification, it is much harder to legally argue that they should be protected from discrimination as a suspect class — a class of individuals marked by certain characteristics.
Why was this leaked now?
Unknown. The New York Times hasn’t divulged the source and won’t, so motivations are unclear. It could be that a concerned person within one of the agencies affected saw it. It could just as easily be a cynical ploy by the administration to release a memorandum it knows will stir up the LGBTQ community right before the election and use this to convince the conservative base that if they don’t vote Republican, the government will be overrun by a mob of deranged transgender people.
Why is the memo disturbing?
Because the administration is basically saying transgender people don't exist as a class using language very similar to that put forward by religious institutions and right-wing organizations.
What are the agencies (HHS, Labor, Education, etc.) trying to achieve?
Lots of courts have ruled that transgender people are protected under Title VII of the Civil Rights Act of 1964 and Title IX, both of which prohibit sex discrimination. Only a few have not. The goal of HHS and the Trump administration is to prevent transgender people from being protected as a class under these laws based on a very limited and scientifically unsupported definition of sex and gender.
When will this happen?
The memorandum was written in the spring, and the administration proposed putting it up for public comment this fall. It is unknown if it is following through or if this was simply a wish list.
What is the effect of this memo if it goes through?
If this becomes policy, it means federal executive agencies will no longer process or support claims by transgender people that they are being discriminated against on the basis of sex (or any basis at all, since we are not a specifically protected class anywhere in federal law now that the Violence Against Women Act is expiring). Most transgender people won't notice any immediate difference the day it goes into effect. However, as protections weaken and disappear, religious exemptions are solidified and expanded, and discrimination is encouraged, life will get more and more difficult for transgender people. Combined with the Alliance Defending Freedom lawsuits contending that policies permitting transgender people in bathrooms create an intrinsically hostile environment, and the possibility of radical religious freedom expansion in Telescope Media v. Lindsey tearing down all local protections, it's going to probably result in a lot more transgender students and employees experiencing hostile work environments, denials of health care, and refusal to provide housing.
But what about court cases for transgender people alleging sex discrimination?
Transgender people will still be able to file claims in federal court for now. However, these claims will be opposed by the federal agencies that they fall under. Case law precedent will protect us in a number of jurisdictions for a while; however, this is part of a push to overturn this case law at the Supreme Court.
Note that this memorandum does not affect the Equal Employment Opportunity Commission’s analysis that transgender people are protected from discrimination on the basis of sex stereotyping, nor the legal work the commission does. However, two of the EEOC’s five seats remain vacant, as does the position of general counsel. One of these positions will be vacated in 2019, and the Trump administration has the opportunity to pack the organization and obtain a reversal of its analytic and legal positions.
Then why are we worried?
There are several reasons to be worried in the short to mid-term that don't require much forecasting. The Trump administration has been furiously packing the courts for two years and will be for another two if Republicans win the Senate again this year (Nate Silver gives them an 85 percent chance of retaining the Senate, and thus the ability to put more ultraconservatives on the bench).
An immediate goal of this action is to make it much harder for transgender people to seek relief when they are discriminated against in health care, housing, employment, and education. In the mid-term the anti-trans forces want a circuit court split on the issue of transgender people (Fifth or Tenth Circuit Court of Appeals appears most likely) to go to SCOTUS, where the justices will effectively strike down protections for transgender people in 29 states that have no laws protecting them as a class.
Why are they doing this when they already have a 5-4 edge at SCOTUS?
It seems highly likely that SCOTUS will rule against transgender people on this matter eventually, regardless of administration. However, this blocks relief through federal agencies, while at the same time potentially accelerating how soon SCOTUS hears this issue and improving their already very good chances of winning there.
Who is behind this?
Based on the language resembling Catholic doctrine and its origins in HHS Civil Rights Division, it is most likely lawyer Roger Severino, formerly of the DeVos Center for Religion and Civil Society at the Heritage Foundation. (Yes, that DeVos).
Additionally, Ben Carson, Betsy DeVos, Mike Pence, the Family Research Council, ADF, the Heritage Foundation, and Jeff Sessions all probably had their fingers in this pie. The ADF provides a lot of legal advice, and this nonrecognition of transgender people while stripping them of their protections covers a lot of the FRC's goals for eradicating transgender people as a class.
Why are some people (like me) treating this as really ominous, when it doesn't look that different from some of the other things this administration has done?
There are several reasons this potentially presages really bad things.
First, the fact that all these agencies are working together to use religious dogma to stop recognizing an entire class of people has some ugly precedents: Stripping large groups of people of rights and recognition as a class has been a prelude to atrocities in the past.
Next is what would happen if the federal government no longer recognizes gender changes, even for people who transitioned years ago. Federal employees would be in deep trouble. For example, imagine a transgender woman working for the federal government who legally transitioned in 2010. If the government no longer recognizes her as female, only as male, and transgender people are not protected from discrimination, the government could easily demand that this individual dress and behave like a man according to dress codes. Failure to follow agency dress code is grounds for termination.
Thus, transgender people who have transitioned would be forced to either detransition or leave. People still in the closet would have to stay there. Federal employees suspected of being transgender would be rooted out with genetic testing. This tactic would be entirely legal under the proposal made by HHS.
There are currently executive orders and Office of Personnel Management guidelines in place protecting federal workers from discrimination based on gender identity and sexual orientation that would have to be scuttled before such a purge could take place. However, Trump has already weakened said executive orders, and the administration is reorganizing OPM and stripping it of many of its responsibilities, and in turn giving them to the White House. Thus, relying on these as a shield is a questionable assumption at best.
If federal executive agencies treat sex as a characteristic fixed at birth, it potentially indicates that it is preparing to stop letting people change the sex or gender markers on all official federal government documents. Currently, the tests for sex for the Social Security Administration and passports are governed by physicians and do not require surgical procedures. When the regulations governing sex markers change, then one will have to produce an original birth certificate or a genetic test.
Not only would this prevent people from changing their gender markers with the SSA, the Department of Defense, Department of State passports, etc., it could potentially nullify ones that have already been issued. This might be a tough legal sell, but if State were to reissue passports with old gender markers to people who had changed them in the past, it might be able to argue in court that this does not place a substantial burden on transgender people.
Taken together, the acts of removal of civil rights protections, nonrecognition of a class of people, purging them from civil service, and revocation of passports are extremely disturbing because they all have clear analogies to actions taken in Germany prior to 1939 to isolate and marginalize the Jewish population there.
What can we do to stop this?
Vote. Vote. Vote. Get your friends, family, etc. to vote. Work on get-out-the-vote drives. One thing that can grind this to a halt is by somehow taking back the Senate, and that's going to take a miracle fueled by hard work, outrage, money, and votes.
If this does turn out to be a real threat and not just a trial balloon, participate in the public comment period. Yes, previous public comment periods on transgender health were swarmed under by bot attacks spamming comment, but at least leave some sort of trail that more real people responding to this were vehemently opposed.
Educate yourself and speak up on why it is really worrying when a religious organization that has implied that transgender people should be legislated out of existence is promoting policy to do just that. The public has no idea how bad this is or what the parallels in history look like.
Be engaged and prepared. We could still win this one. We could also lose everything and be in a situation where it is impossible to continue functioning in the U.S. because we cannot use a bathroom, hold down a job in industry outside queer-owned businesses, join the military, participate in civil service, etc.
Work for the best. Be prepared for the worst.
BRYNN TANNEHILL is a former naval aviator who currently serves on the boards of SPARTA and the Trans United Fund. She has nearly 300 published articles across a dozen platforms. She lives in Northern Virginia with her wife and three children.