The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, according to a Department of Health and Human Services memo obtained by the New York Times on Sunday, Oct. 21.
The department argues in this memo that government agencies need to implement an explicit and coherent definition of gender as determined, “on a biological basis that is clear, grounded in science, objective and administrable.”
The proposed redefinition would determine gender as unchangeable and determined by the genitals that a person is born with, indistinguishable from one’s biological sex.
If one were to dispute their gender, genetic testing would be required to prove that their claim corresponds to the newly defined term.
Some have criticized that these efforts to redefine gender conflates the classifications of sex and gender, and causes further confusion of the terms’ meaning.
Corey Wrenn, Ph.D., a lecturer of sociology and gender studies, explained, “Sex refers to one’s biological category. Gender refers to the social roles and cultural expectations that are assigned to people, often based on sex.”
The previous administration under then-President Barack Obama lessened the restrictions on the legal concept of gender in federal programs, including in education and health care, recognizing gender more as an individual’s choice, rather than as an absolute factor determined by one’s biological sex or genitalia.
After more than a year of discussions, health and human services is preparing to formally present the new definition to the Justice Department before the end of the year, Trump administration officials say.
If the Justice Department decides that the change is legal, the new definition can be approved and enforced in Title IX statutes, and across government agencies.
Because the Title IX federal civil rights law bans gender discrimination in education programs that receive government financial assistance, redefining the legal concept of gender could pose threats to those who are transgender.
The new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves as a gender that does not reflect their biological sex. .
The process of using genetic testing to prove one’s gender has incited some criticism from individuals that have noted that gender identities that fall outside of the male and female dichotomy have existed for some time.
“Indigenous cultures and nations like India, North America, and Hawaii have had trans* identities way before the influence of colonialism and imperialism,” said senior social work student Chris Rapaglia.
“Third gender options comparable to non-binary identities were present throughout history and had a role in their community,” she continued.
Furthermore, this criticism coalesces with the opposition of this memo that comes from the community of intersex individuals. People that are intersex are those that have ambiguous reproductive or sexual anatomy that does not fit within the parameters of male and female anatomy, according to Intersex Society of North America.
If the Department of Health chooses to institute genetic testing in order to verify one’s gender, this scientific model may falter with the intersex population.
Rapaglia continued, “Folks who are neither male nor female in their own ‘biology’ are completely erased from this dialogue. And among both trans* and intersex identities- the right to privacy, self-determination is undermined for the sake of false science.”
“One of the major ways that marginalized groups are disserviced is in being removed from the discourse,” said Wrenn. “They are often patronized and excluded from deliberations, leaving more privileged groups to speak on their behalf. Without diversity at the decision-making table, there will be policy failure in outcome.”
The potential backlash of this decision also brings to light a dimension of gender’s utility within the larger society. With the permanent adoption of this new definition, some argue that it will perpetuate other types of oppression.
“This distinction is used as a rationale in the upholding of hierarchies of worth and also determines how resources and opportunities are distributed. In my professional opinion, so long as gender remains as a valid category, we will always have inequality,” Wrenn explained.
“This in no way is to negate our own lived experiences with gender, but only to suggest that, in the future, moving away from strict interpretations of this category is bound to relieve all people, regardless of identity, of significant suffering (cis-gender males included),” she said.
Under the current administration, officials from the Department of Health and Human Services have contended that the term “sex” was never intended to include gender identity or homosexuality, and that this lack of clarity allowed the Obama administration to wrongfully extend civil rights protections to lesbian, gay, bisexual, transgender, or queer people.
This recent decision is causing major criticism from transgender and gender non-conforming individuals across the country, especially with the creation of the hashtag “#WeWontBeErased” in opposition to the memo.
Junior social work student Jesse Denniston-Lee also weighed on the issue, acknowledging the importance of allyship in this time of difficulty for the LGBTQ+ community.
“It is important for allies of LGBTQ+ community to support their trans, non-binary, and gender non-conforming friends at a time where the larger society wants to phase them out for being who they are,” Denniston-Lee said.
“Ultimately, the effects of this decision is a matter of life and death for some people. Therefore, it is important to use our privilege a young people to get politically involved and advocate for people who need it most.”
Departments like the Department of Education would have to decide what documentation schools would be required to collect to determine or codify gender. Title IX applies to a number of educational experiences, like sports and single-sex classes or programs, where gender identity has influence in classification of students. The department has said it will continue to open cases where transgender students face discrimination, bullying and harassment, and investigate gender-based harassment as “unwelcome conduct based on a student’s sex” or “harassing conduct based on a student’s failure to conform to sex stereotypes.”
