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Trump administration may change the definition of gender to eliminate protection for transgender people

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James Hirsch (left) and AJ King of the UI Trans Alliance in a Trans Day of Visibility photo shoot. — UI Trans Alliance/courtesy photo

On Sunday, the New York Times reported the Trump administration is considering erasing the rights of transgender people under federal law by “narrowly defining gender as a biological, immutable condition determined by genitalia at birth.”

The Times obtained an internal memo from the U.S. Department of Health and Human Services (HHS), that argues federal agencies need to adopt the genitalia-at-birth standard. The memo is part of an effort at HHS to end protection for transgender people under Title IX, the federal civil rights law that prohibits gender discrimination in education programs receiving federal money.

The memo contends gender should be considered immutable and fixed at birth. It calls that standard, “a biological basis that is clear, grounded in science, objective and administrable.” This position is rejected by both the American Medical Association and the American Psychiatric Association, as well as the vast majority of scientists who deal with issues of gender.

HHS has refused to comment on the memo.

The Office for Civil Rights at HHS is currently headed by Roger Severino, who was previously the director of the DeVos Center for Religion and Civil Society at the rightwing Heritage Foundation. As the New Yorker’s Masha Gessen pointed out, Severino has a history of writing about “the dangers of ‘gender ideology,’ a term that for years now has been used to mobilize extreme social conservatives worldwide. ‘Gender ideology’ refers to an imaginary Marxist movement to erase differences between men and women.”

The “DeVos” in the name of the Heritage Foundation’s center refers to Richard and Helen DeVos, the billionaires who provided the money to start it (Richard was a co-founder of Amway) and the in-laws of Education Secretary Betsy DeVos. As one of her first actions as secretary, DeVos revoked Obama-era guidelines directing schools to recognize a student’s gender on the basis of how the student self-identifies, and to allow students to use the restroom that corresponds to that self-identification. DeVos said the guidelines were unnecessary, and that such decisions were best left up to local school districts.

The pushback on social media against the proposal in the HHS memo began almost as soon as the Times published its story, with the hashtag #WontBeErased. There was a rally for transgender rights on Sunday night in New York City, and on Monday there was another rally in front of the White House.

“This is not a red or blue issue, this is a human issue,” Masen Davis of Freedom for All Americans, a bipartisan group promoting LGBTQ rights, told the crowd in Washington D.C.

Federal law does not explicitly prohibit discrimination against LGBTQ people, but federal agencies have included them under provisions dealing with gender discrimination. That would end for transgender people, if the Trump administration adopted the genitalia-at-birth standard. Only 20 states (as well as the District of Columbia, Puerto Rico and Guam) prohibit discrimination on the basis of sexual orientation and gender identity. Iowa is one of those states.

In 2007, the Iowa Civil Rights Act (ICRA) was amended to prohibit discrimination based on actual or perceived sexual orientation or gender identity. In June, the Iowa Supreme Court found a state law prohibiting the use of Medicaid funds for gender-reassignment procedures violated not only the ICRA, but also the Iowa Constitution.

“It’s a historic moment for civil rights in Iowa, because it’s the first time that a court decision has recognized what we’ve long known: transgender Iowans are protected by the Iowa Constitution’s guarantee of equal protection, as well as by the Iowa Civil Rights Act,” the ACLU of Iowa said, following the court’s decision.

Despite that ruling, LGBTQ rights still face strong opposition in parts of Iowa. On Friday, the leader of a Christian fundamentalist group staged a Facebook Live event, during which he burned several LGBTQ books that had been checked out of the public library in the northwestern Iowa town of Orange City.

“Orange City Library, you won’t be peddling this one anymore!” Paul Dorr said, as he threw four books into a fire. “You should all be ashamed of yourselves and repent.”

The Sioux City Journal reports that the four books were “David Levithan’s Two Boys Kissing; Suzanne and Max Lang’s Families, Families, Families!; Gayle E. Pitman’s This Day in June; and Christine Baldacchino’s Morris Micklewhite and the Tangerine Dress.”

The paper said Dorr claims he was unable to restrain his book-burning urges, after he heard an LGBTQ-friendly book, Bunnybear by Andrea J. Loney — the story of a bear who feels like a bunny in his heart — was read to children during the recent OC Pride fest.

Dorr said he will not pay for the “filthy” and “disgusting” books he burned. In reply to questions from the Journal, the Orange City Public Library said it was aware of Dorr’s video, but had no comment at this time.


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