The Trump administration is considering a move to define the concept of sex under Title IX in a way that could essentially deny the existence of transgender people, including transgender students in the nation’s schools, the New York Times reports.
The report sparked outrage among advocates for transgender students Sunday.
“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the Department of Health and Human Services said in a memo, according to the Times. “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 agency is working to align the interpretations of Title IX among the federal departments that enforce it. Such a move would restrict civil rights enforcement by the agencies related to transgender issues. But transgender people could still take discrimination cases to court and challenge the administration’s gender definition, a move advocacy groups quickly vowed to take Sunday.
According to the report, the proposal 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.”
Advocates for transgender students have argued that the concept of sex in Title IX, the federal law that prohibits sex discrimination in schools, was intended to refer more broadly to the concept of gender. Several federal judges have sided with that argument, ruling that the law protects the rights of transgender students to use restrooms and locker rooms that align with their gender identity.
In one of her first moves as U.S. Secretary of Education, Betsy DeVos teamed with Attorney General Jeff Sessions to withdraw an Obama-era civil rights directive on Title IX that called on schools to recognize transgender students by using the appropriate pronouns, protecting them from harassment, and allowing them to use the facilities that align with their gender identity.
The Trump officials declined to take a position on Title IX and transgender students, saying it was up to schools to interpret the law. But the agencies’ civil rights arms have declined to take up claims of discrimination in the time since.
Some conservative groups who’ve opposed allowing transgender students access to restrooms and locker rooms that match their gender identity say it creates privacy and safety concerns for other students.
But school districts that have accomodated transgender students say they have faced few or no problems. And parents of transgender students have testified in state and local hearings that their children face great fear at school about issues as simple as going to the bathroom. Some students even refuse to drink water at school, dehydrating themselves to avoid the stigma they feel, their parents said.
Catherine Lhamon, who helped write the Obama-era guidance on transgender students in her previous role as leader of the Education Department’s office for civil rights, responded to the report Sunday.
Trump Administration racing to narrow civil rights protections, explicitly trying to get ahead of court decisions that protect Americans. This move reflects a broader goal to redefine civil rights law by fiat rather than deferring to Congress to pass law https://t.co/RLU4mBUXXv
-- Catherine E. Lhamon (@CatherineLhamon) October 21, 2018
The National Center for Transgender Equality also responded to the report.
This administration is willing to disregard the established medical and legal view of our rights and ourselves to solidify an archaic, dogmatic, and frightening view of the world. This transparent political attack will not succeed administratively, legally, or morally
-- National Center for Transgender Equality (@TransEquality) October 21, 2018
A version of this news article first appeared in the Rules for Engagement blog.