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Trump administration considers elimination of transgender recognition

Trump already retracted transgender rights in schools, bathrooms, prisons, military

Mythili Sampathkumar
New York
Sunday 21 October 2018 19:17 BST
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The Trump administration seeks to further roll-back transgender rights in a new memo from the Department of Health and Human Services
The Trump administration seeks to further roll-back transgender rights in a new memo from the Department of Health and Human Services (AFP/Getty)

Donald Trump administration is considering revoking civil rights protections for transgender people and requiring Americans to identify as the gender listed on their birth certificates.

The Department of Health and Human Services (HHS) outlined the proposed policy in a memo which stated gender would be determined by a “biological basis that is clear, grounded in science, objective, and administrable”.

It is a potential reversal from the series of policies instituted by the administration of Barack Obama which essentially allowed gender to be the choice of individuals, particularly important for education and health programmes run by the federal government.

The memo stated, according to a copy obtained by The New York Times, that the sex of an individual “as originally issued, shall constitute definitive proof” of that person’s gender in a change affecting approximately 1.4m people in the US who identify as transgender, a different gender from the one at birth, and/or gender non-conforming.

The newspaper reported it would “eradicate federal recognition” of transgender individuals and would require “any dispute about one’s sex would have to be clarified using genetic testing”.

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the memo, which has been making the agency rounds since 2017, stated.

The proposal would apply across all federal agencies, opening the door for states to apply the same policy standard.

Catherine Lhamon, who led the Education Department’s Office for Civil Rights in the Obama administration, told the New York Times the memo flies in the face of what the medical community has already established as fact.

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“This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees,” she said.

While it appears this memo is one of the clearest and widespread retractions of transgender rights by the administration, it is not the first.

The agency had eliminated two questions about gender identity and sexual orientation from a demographic survey of elderly Americans back in March 2017.

The survey results are published in a “very large and important” statistical report that helps the government identify the particular challenges older Americans are facing when it comes to employment, healthcare, housing, and other issues, David Stacy, HRC’s Government Affairs Director told The Independent at the time.

The HHS under the Trump administration said in the Federal Register that “no changes” had been made to the survey, said Mr Stacy.

The agency website was also scrubbed of information about how LGBTQ Americans can adopt children or where to seek help if they are victims of sex trafficking.

The Department of Commerce also had to correct a provision in its equal employment policy so that it once again protects the LGBTQ community in June 2017.

The website with the statement was updated to include the phrases “sexual orientation” and “gender identity,” though this change did not occur until Buzzfeed reported on the change.

The Department of Commerce had not made a formal announcement or press release about the change but added it to the Federal Register, the official journal of the US government which includes agency rules, changes, and public notices.

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The earlier 2017 statement, signed by the head of Commerce Wilbur Ross had read: "The Department of Commerce does not tolerate behaviour, harassment, discrimination or prejudice based on race, colour, religion, sex, national origin, age, or disability...We will also provide reasonable accommodations for applicants and employees with disabilities."

The Trump administration has also waded into the debate about school bathrooms, rejecting in February 2017 an Obama-era ruling which stated public schools were required to follow laws against gender discrimination and allow students to use bathrooms based on their chosen gender not necessarily biological one.

In March 2018, the administration announced the US Bureau of Prisons began to use an inmate’s biological gender to determine where they would be housed and which bathroom they could use.

The administration had also attempted to ban transgender individuals from serving in the US military, but was blocked by several federal judges and opposition from military leaders.

HHS is set to present the latest policy to the US Department of Justice by the end of 2018.

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