Trump Administration Eyes Defining Transgender Out of Existence - Politics Forum.org | PoFo

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#14955528
New York Times
By Erica L. Green, Katie Benner and Robert Pear


WASHINGTON — The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.

A series of decisions by the Obama administration loosened the legal concept of gender in federal programs, including in education and health care, recognizing gender largely as an individual’s choice and not determined by the sex assigned at birth. The policy prompted fights over bathrooms, dormitories, single-sex programs and other arenas where gender was once seen as a simple concept. Conservatives, especially evangelical Christians, were incensed.

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Now the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times.

The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.” The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. 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 department proposed in the memo, which was drafted and has been circulating since last spring. “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 new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves — surgically or otherwise — as a gender other than the one they were born into.

“This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees,” said Catherine E. Lhamon, who led the Education Department’s Office for Civil Rights in the Obama administration and helped write transgender guidance that is being undone.

The move would be the most significant of a series of maneuvers, large and small, to exclude the population from civil rights protections and roll back the Obama administration’s more fluid recognition of gender identity. The Trump administration has sought to bar transgender people from serving in the military and has legally challenged civil rights protections for the group embedded in the nation’s health care law.

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 a 2020 census survey and a national survey of elderly citizens.

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For the last year, health and human services has privately argued that the term “sex” was never meant to include gender identity or even homosexuality, and that the lack of clarity allowed the Obama administration to wrongfully extend civil rights protections to people who should not have them.

Roger Severino, the director of the Office for Civil Rights at the Department of Health and Human Services, declined to answer detailed questions about the memo or his role in interagency discussions about how to revise the definition of sex under Title IX.

But officials at the Department of Health and Human Services confirmed that their push to limit the definition of sex for the purpose of federal civil rights laws resulted from their own reading of the laws and from a court decision.

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Mr. Severino, while serving as the head of the DeVos Center for Religion and Civil Society at the Heritage Foundation, was among the conservatives who blanched at the Obama administration’s expansion of sex to include gender identity, which he called “radical gender ideology.”

In one commentary piece, he 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.”

“Transgender people are frightened,” said Sarah Warbelow, the legal director of the Human Rights Campaign, which presses for the rights of lesbian, gay, bisexual and transgender people. “At every step where the administration has had the choice, they’ve opted to turn their back on transgender people.”

The Department of Health and Human Services has called on the “Big Four” agencies that enforce some part of Title IX — the Departments of Education, Justice, Health and Human Services, and Labor — to adopt its definition in regulations that will establish uniformity in the government and increase the likelihood that courts will accept it.

The definition is integral to two proposed rules currently under review at the White House: One from the Education Department deals with complaints of sex discrimination at schools and colleges receiving federal financial assistance; the other, from health and human services, deals with health programs and activities that receive federal funds or subsidies. Both regulations are expected to be released this fall, and would then be open for public comment, typically for 60 days. The agencies would consider the comments before issuing final rules with the force of law — both of which could include the new gender definition.

Civil rights groups have been meeting with federal officials in recent weeks to argue against the proposed definition, which has divided career and political appointees across the administration. Some officials hope that health and human services will at least rein in the most extreme parts, such as the call for genetic testing to determine sex.

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.

The Justice Department declined to comment on the draft health and human services proposal. The Justice Department has not yet been asked to render a formal legal opinion, according to an official there who was not authorized to speak about the process.

But Attorney General Jeff Sessions’s previous decisions on transgender protections have given civil rights advocates little hope that the department will prevent the new definition from being enforced. The proposal appears consistent with the position he took in an October 2017 memo sent to agencies clarifying that the civil rights law that prohibits job discrimination does not cover “gender identity, per se.”

Harper Jean Tobin, the policy director of the National Center for Transgender Equality, an advocacy group, called the maneuvering “an extremely aggressive legal position that is inconsistent with dozens of federal court decisions.”

Health and human services officials said they were only abiding by court orders, referring to the rulings of Judge Reed O’Connor of the Federal District Court in Fort Worth, Tex., a George W. Bush appointee who has held that “Congress did not understand ‘sex’ to include ‘gender identity.’”

A 2016 ruling by Judge O’Connor concerned a rule that was adopted to carry out a civil rights statute embedded in the Affordable Care Act. The provision prohibits discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance.

But in recent discussions with the administration, civil rights groups, including Lambda Legal, have pointed to other court cases. In a legal memo presented to the administration, a coalition of civil rights groups wrote, “The overwhelming majority of courts to address the question since the most relevant Supreme Court precedent in 1998 have held that antitransgender bias constitutes sex discrimination under federal laws like Title IX.”

Indeed, the health and human services proposal was prompted, in part, by pro-transgender court decisions in the last year that upheld the Obama administration’s position.

In their memo, health and human services officials wrote that “courts and plaintiffs are racing to get decisions” ahead of any rule-making, because of the lack of a stand-alone definition.

“Courts and the previous administration took advantage of this circumstance to include gender identity and sexual orientation in a multitude of agencies, and under a multitude of laws,” the memo states. Doing so “led to confusion and negative policy consequences in health care, education and other federal contexts.”

The narrower definition would be acutely felt in schools and their most visible battlegrounds: locker rooms and bathrooms.

One of the Trump administration’s first decisive policy acts was the rescission by the Education and Justice Departments of Obama-era guidelines that protected transgender students who wanted to use bathrooms that correspond to their gender identity.

Since the guidance was rescinded, the Education Department’s Office for Civil Rights has halted and dismissed discrimination cases filed by transgender students over access to school facilities. A restrictive governmentwide definition would cement the Education Department’s current approach.

But it would also raise new questions.

The department 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, such as sports and single-sex classes or programs where gender identity has come into play. 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.”

The Education Department did not respond to an inquiry about the health and human services proposal.

Ms. Lhamon of the Obama Education Department said the proposed definition “quite simply negates the humanity of people.”


Hopefully this institutionalized insanity will be coming to an end soon.
#14955533
I can hardly wait to once again hear how it is illegal for Trump to undo what Obama did.
I am sure we will even hear liberal judges ruling this somehow makes sense since Obama rightfully had powers Trump should not have because he once said something naughty.
#14955534
This is hilarious.

Now Trump and his supporters can pretend that facts do not exist because they wrote a law. You guys should write laws saying gays are not real and everyone has the same skin colour!

I notice @One Degree has no problem with this federal laws, despite his usual claim that these things should be done at the state level.
#14955535
Transtrender-mania is a zeitgeist phenomenon and outgrowth of the radical identity politics/victim olympics movement, and will not be coming to an end soon. When it comes to LGTB+ rights, I always think of the intro to the Star Trek show 'The Next Generation': "to explore strange new worlds, to seek out new life and new civilizations, to boldly go where no man has gone before."



Turns out we didn't need to leave our planet to explore these 'strange new worlds, new life, and new civilizations'. :lol:

#14955536
Pants-of-dog wrote:This is hilarious.

Now Trump and his supporters can pretend that facts do not exist because they wrote a law. You guys should write laws saying gays are not real and everyone has the same skin colour!

I notice @One Degree has no problem with this federal laws, despite his usual claim that these things should be done at the state level.


Ho hum. Another person accusing me of something I did not say. If you read carefully, all my post did was laugh at the absurd belief Obama’s changes should have more validity than Trunp’s. Now, do you have any comments on what I actually said?
#14955619
One Degree wrote:Ho hum. Another person accusing me of something I did not say.


Exactly. I am pointing out what you did not say, and accusing you of inconsistency because you should have said that you oppose this because it is a federal thing when it should be a states thing.

If you read carefully, all my post did was laugh at the absurd belief Obama’s changes should have more validity than Trunp’s. Now, do you have any comments on what I actually said?


They probably do have more validity in terms of being consistent with the basic tenets of liberal democracy and the US bill of rights.

Do you think that all people make equally valid policies?
#14955621
Pants-of-dog wrote:Exactly. I am pointing out what you did not say, and accusing you of inconsistency because you should have said that you oppose this because it is a federal thing when it should be a states thing.



They probably do have more validity in terms of being consistent with the basic tenets of liberal democracy and the US bill of rights.

Do you think that all people make equally valid policies?


Do you include all of your positions in every post? Your suggestion I am inconsistent by not doing so is difficult for me to understand. My post was about the point I made. Your other comments seem to be a deflection and I will take them as a concession my point is valid.
#14955629
Pants-of-dog wrote:@One Degree

So you support the federal proposal and think it should not be the decision of the individual states?

And you also think all of Obama’s poliices are as valid as Trump’s?


There should be no question Trump’s decisions are as valid as Obama’s. They have the same authority. Courts ruling otherwise because of what Trump once said is the most outrageous intentional violation of judicial authority I ever heard of.
There are few things I would not choose to give to the states. I don’t even believe a federal government should have direct authority over individuals. Their authority should be limited to cooperation of the states. Unfortunately, that is not the current reality. Therefore, I must express opinions on federal authority whether I think they should have it or not.
As far as this specific transgender issue, I believe Trump is correct but probably not for the reason you think. Liberal positions have destroyed themselves by allowing disturbed people to expand them into absurdity. I believe there are a very few people who would have benefitted by protection, and they were undermined by unbalanced people who are just maladjusted. The liberals own extremism is destroying the very protections they claim to want for their followers. This is just one of many reasons why I don’t understand their followers don’t realize they are just being used for votes.
#14955631
One Degree wrote:There should be no question Trump’s decisions are as valid as Obama’s. They have the same authority. Courts ruling otherwise because of what Trump once said is the most outrageous intentional violation of judicial authority I ever heard of.


I did not ask you that.

Are Obama’s policies just as valid as Trump's?

There are few things I would not choose to give to the states. I don’t even believe a federal government should have direct authority over individuals. Their authority should be limited to cooperation of the states. Unfortunately, that is not the current reality. Therefore, I must express opinions on federal authority whether I think they should have it or not.


In this case, do you think the federal government should have the rught to tell the states what to do? Yes or no?

As far as this specific transgender issue, I believe Trump is correct but probably not for the reason you think. Liberal positions have destroyed themselves by allowing disturbed people to expand them into absurdity. I believe there are a very few people who would have benefitted by protection, and they were undermined by unbalanced people who just maladjusted. The liberals own extremism is destroying the very protections they claim to want for their followers. This is just one of many reasons why I don’t understand their followers don’t realize they are just being used for votes.


I do not care about your weird and unsupported beliefs about “liberals”.

Are Obama’s policies just as valid as Trump's?

In this case, do you think the federal government should have the rught to tell the states what to do? Yes or no?
#14955632
Pants-of-dog wrote:I did not ask you that.

Are Obama’s policies just as valid as Trump's?



In this case, do you think the federal government should have the rught to tell the states what to do? Yes or no?



I do not care about your weird and unsupported beliefs about “liberals”.

Are Obama’s policies just as valid as Trump's?

In this case, do you think the federal government should have the rught to tell the states what to do? Yes or no?


Your total disregard of my responses to your questions leave me with zero incentive to further reply. I showed you respect by using my time to give you a considered reply. You disrespect me by dismissing them.
Have a good evening.
#14955634
One Degree wrote:Your total disregard of my responses to your questions leave me with zero incentive to further reply. I showed you respect by using my time to give you a considered reply. You disrespect me by dismissing them.
Have a good evening.


You never answered the questions.

So you think the states rights should be ignored and the federal government should be allowed to impose its will on the states.

And you think all Presidents have policies that are all equally valid and no one President is smarter or better than others.
#14955636
Pants-of-dog wrote:You never answered the questions.

So you think the states rights should be ignored and the federal government should be allowed to impose its will on the states.

And you think all Presidents have policies that are all equally valid and no one President is smarter or better than others.


I answered the questions thoroughly, you just seem confused about the differences between debate and interrogation.
#14955638
One Degree wrote:I answered the questions thoroughly, you just seem confused about the differences between debate and interrogation.


Yes, you are so very oppressed and I am a very big meanie. :D

So, the idea is that forcing a traditional view of gender is far more important than things like the self-determination of states.
#14955642
Pants-of-dog wrote:Yes, you are so very oppressed and I am a very big meanie. :D

So, the idea is that forcing a traditional view of gender is far more important than things like the self-determination of states.


Since you don’t believe in the self determination of states, this is obviously a dishonest question. If you truly believed in the concept then you would not ask the question. One has nothing to do with the other. Who has the authority to decide has nothing to do with your position on it.
If you were to ask a more general comparison such as individual rights versus community rights then the answer should be obvious. Civilization is dependent upon community rights, not individuals. Civilization can exist without individual rights, so which is more important should be obvious. Unfortunately, liberalism is based upon emotion not what is the best choice.
#14955646
One Degree wrote:Since you don’t believe in the self determination of states, this is obviously a dishonest question. If you truly believed in the concept then you would not ask the question. One has nothing to do with the other. Who has the authority to decide has nothing to do with your position on it.


Ao you think that the federal government has the right to take away the self determination of the states.

And that this relationship is actually irrelevant most of the time.

If you were to ask a more general comparison such as individual rights versus community rights then the answer should be obvious. Civilization is dependent upon community rights, not individuals. Civilization can exist without individual rights, so which is more important should be obvious.


And now the very fate of civilisation rests on Trump not letting trans people have the same rights as the rest of us! :D

Unfortunately, liberalism is based upon emotion not what is the best choice.


Do you think that your abandonment of your previous positions is based on emotions, or because it is the best choice?
#14955649
Pants-of-dog wrote:Ao you think that the federal government has the right to take away the self determination of the states.

And that this relationship is actually irrelevant most of the time.



And now the very fate of civilisation rests on Trump not letting trans people have the same rights as the rest of us! :D



Do you think that your abandonment of your previous positions is based on emotions, or because it is the best choice?


All of your comments appear to be outrageous distortions of what I actually said. If you would like to add clarification as to how you arrived at these distortions, I might answer. They are not worthy of a response as is.
For example, you would have to provide reasoning as to how I abandoned my position.
#14955652
One Degree wrote:All of your comments appear to be outrageous distortions of what I actually said. If you would like to add clarification as to how you arrived at these distortions, I might answer. They are not worthy of a response as is.
For example, you would have to provide reasoning as to how I abandoned my position.


Everyone can see how you are championing federal imposition on what should be a state decision.

Are you now claiming that you never made the “states rights” argument before?
#14955655
Pants-of-dog wrote:Everyone can see how you are championing federal imposition on what should be a state decision.

Are you now claiming that you never made the “states rights” argument before?


Lol. What everyone thinks has zero meaning to me. Remember, I am not a liberal who thrives on the acceptance of others. I am me. Whether you accept or reject me is simply your choice. Nothing else.
I thoroughly responded to your accusations. There is no need for me to offer anything further until you actually offer anything at all, which so far you have avoided doing.
Goodnight so you don’t expect any immediate replys.
#14955663
One Degree wrote:Lol. What everyone thinks has zero meaning to me. Remember, I am not a liberal who thrives on the acceptance of others. I am me. Whether you accept or reject me is simply your choice. Nothing else.
I thoroughly responded to your accusations. There is no need for me to offer anything further until you actually offer anything at all, which so far you have avoided doing.
Goodnight so you don’t expect any immediate replies.


Why is this issue so important that we should ignore states rights?
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