Fury over reported federal plan targeting transgender people

WASHINGTON – LGBT leaders across the U.S. reacted with fury Monday to a report that the Trump administration is considering adoption of a new definition of gender that would effectively deny federal recognition and civil rights protections to transgender Americans.

“I feel very threatened, but I am absolutely resolute,” Mara Keisling, executive director of the National Center for Transgender Rights, said at a news conference convened by more than a dozen activist leaders in Washington, D.C.

“This admin has been attempting to roll back rights for LGBTQ people from the beginning of their term,” said Monisha Harrell, who chairs the board of Equal Rights Washington. “Despite the fact I’m not surprised, it’s still incredibly infuriating.”

On Sunday, the New York Times reported that the Department of Health and Human Services was circulating a memo proposing that gender be defined as an immutable biological condition determined by a person’s sex organs at birth. The proposal would define sex as either male or female, and any dispute about one’s sex would have to be clarified through genetic testing, according to the Times’ account of the memo.

Robbi Katherine Anthony, a transgender woman and Spokane County commissioner candidate, said the proposal amounts to a political “dog whistle” that would encourage violence and discrimination against transgender people. “It’s pointless,” Anthony said. “And I think it does certainly meet the threshold of what one would define as cruelty.”

For LGBT-rights leaders, it’s the administration’s latest attack on transgender Americans. They also cite an attempt to ban them from military service; a memo from Attorney General Jeff Sessions concluding that civil rights laws don’t protect transgender people from discrimination on the job; and the scrapping of Obama-era guidance encouraging school officials to let transgender students use school bathrooms that matched their gender identities.

“We have a lot of different concepts right now,” President Donald Trump said Monday. “They have a lot of different things happening with respect to transgender right now – you know that as well as I do – and we’re looking at it very seriously.”

The Cabinet agency had acknowledged months ago that it was working to rewrite a federal rule that bars discrimination in health care based on “gender identity.” The department cited a 2016 ruling by a Texas-based federal judge, Reed O’Connor, that the original rule went too far in concluding that discrimination based on gender identity is a form of sex discrimination, which is forbidden by civil rights laws.

LGBT activists, who pledged legal challenges if the reported memo leads to official policy, said several other courts had issued rulings contrary to O’Connor’s.

“For years, courts across the country have recognized that discriminating against someone because they are transgender is a form of sex discrimination, full stop,” said Diana Flynn, Lambda Legal’s litigation director. “If this administration wants to try and turn back the clock by moving ahead with its own legally frivolous and scientifically unsupportable definition of sex, we will be there to meet that challenge.”

Shannon Minter, a transgender attorney with the National Center for Lesbian Rights, called the reported plan a “cynical political ploy to sow discord and energize a right-wing base” before the Nov. 6 election.

UCLA legal scholar Jocelyn Samuels, who ran the HHS civil rights office in the Obama administration, said the Trump administration would be going beyond established law if it adopted the policy in the memo.

While social mores enter into the debate, medical and scientific experts have long recognized a condition called “gender dysphoria” – discomfort or distress caused by a discrepancy between the gender that a person identifies as and the gender at birth. Consequences can include severe depression. Treatment can range from sex-reassignment surgery and hormones to people changing their appearance by adopting different hairstyles or clothing.