By Valerie Ploumpis, National Policy Director

Just as hundreds of EQCA staff and members began knocking on doors to tell voters about pro-equality Congressional candidates** last Sunday, their phones lit up over one of the most naked assaults on the LGBGQ community to date – a New York Times article about a leaked memo about how the Federal government will define transgender people.

The memo, which the Trump-Pence Administration has been internally circulating since Spring, would profoundly affect an estimated 1.4 million transgender people because it would redefine gender:  “Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth. 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.”

If enacted as expected, this venomously anti-LGBTQ re-definition of gender/sex would mean that the sex marked on an individual’s birth certificate at birth would be the only way they are recognized by the Federal government, regardless of their gender identity, their lived experience, and the overwhelming scientific and medical consensus that transgender people are who they say they are. If this redefinition is adopted, for example, a transgender woman who has lived as a woman for decades would be treated as a man for the purposes of Federal law – even if her birth certificate, driver’s license and passport had all been updated to reflect her identity as a woman.

This redefinition based on genitalia at birth would be uniformly adopted by the Department of Health and Human Services (thereby gutting the non-discrimination Section 1557 clause of the Affordable Care Act), the Department of Education (thereby removing any protections for transgender students, which are already not being enforced), the Department of Labor (thereby affecting Title VII workplace protections) and the Department of Justice.

EQCA Jumps Into Action

Equality California’s DC office immediately reached out to every Member of the California Congressional delegation to ask them to issue a strong statement of disapproval – ideally as a press release, but also in social media, using the hashtag #WontBeErased.

EQCA also asked each Member’s statement to reaffirm their commitment to the Equality Act (H.R. 2282), which would amend the Civil Rights Act of 1964 to include sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation in places of public accommodation.

If enacted, the Equality Act – which has been cosponsored by every California Democrat and no Republican Member of the California delegation — would negate the Trump Administration’s proposed redefinition of gender, in that it defines:

• “sex” to include a sex stereotype, sexual orientation or gender identity, and pregnancy, childbirth, or a related medical condition;
• “sexual orientation” as homosexuality, heterosexuality, or bisexuality; and
• “gender identity” as gender-related identity, appearance, mannerisms, or characteristics, regardless of the individual’s designated sex at birth.

The issue may now be taken up by the Supreme Court, which has a request before it to consider a case involving Aimee Stephens, a transgender woman who was fired by a Detroit-based funeral home when she told her employer that she would start working openly as a woman. The Supreme Court may well decline to accept the case, given bruising battle over just-seated Justice Kavanaugh, but eventually one of the many legal challenges will surely be on its docket.

** See our pro-equality endorsements here.

Additional Resources:

Trump Administration’s Attempt to Redefine “Sex” & What It Means for Transgender and Intersex People:   http://blog.lgbtmap.org/2018/10/trump-administrations-attempt-to-redefine-sex-what-it-means-for-transgender-and-intersex-people/

National Center for Transgender Equality:   https://transequality.org/press/releases/in-response-to-the-new-york-times-october-21-story-trump-administration-eyes-defining

Trevor Project’s Support Center:   https://www.thetrevorproject.org/resources/trevor-support-center/#sm.001ofupeu15tmdq0umz1zvkcj0phe

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