What Could Happen If the Federal Government Redefined Gender?

The Trump Administration is considering a policy that could effectively end federal recognition of more than a million adults who identify as a gender other than the one listed on their original birth certificate.

According to a Department of Health and Human Services memo obtained by the New York Times, the Administration is considering adopting a narrow definition of gender as an immutable characteristic determined by one’s genitalia at birth. If the proposal is approved, the departments of Education, Justice and Labor would be expected to follow suit.

Though it’s still unclear how the policy would work, experts say it could affect the kind of medical treatment transgender people could receive under Medicaid, which prisons transgender inmates might be assigned to or what school bathrooms they could use.

The proposal, which is still a draft, appears to be in stark contrast to decisions the Obama Administration made to relax the legal concept of gender, such as Section 1557 of the Affordable Care Act, a non-discrimination provision that indicated any health program or activity in receipt of funding from the Department of Health and Human Services could not discriminate on the basis of sex, among other things. Obama-era federal guidance sought to clarify that gender identity discrimination was a type of sex discrimination.

“The Trump Administration is banking on the fact that a large percentage of the American population is still ignorant or uncomfortable with transgender identity,” says Kim Forde-Mazrui, a University of Virginia law professor whose expertise includes sexual orientation equal protection.

In 2017, more than 20 transgender Americans were killed by violent means. Nearly a third — 32% — of Americans believe transgender people have mental illnesses, according to a report published in January of 2018. In the days since the Times broke the story, the memo has drawn considerable criticism from LGBT rights activists.

And while Forde-Mazrui says he imagines “there could be a lot of candidates” who’d want to line up to sue an agency or organization over enforcement of the proposed definition, the path forward is still unclear, says Deborah Rhode, a law professor and ethics expert at Stanford.

“You have to show standing,” Rhode said. “Until the definition is enforced in some way that you’re at risk, most courts are not going to want to hear the suit.”

If the proposed definition becomes part of Title IX, it may not be easy to undo. The case would likely have to work its way up lower courts before it reaches the Supreme Court docket. And if other major federal agencies adopt the definition, it could be harder for the advocates to fight it in court.

Under the proposal leaked to the Times, disputes about someone’s gender could be clarified with genetic testing, but Dr. Amy Weimer, a primary care physician and the founder of UCLA’s Gender Health Program, questioned the accuracy of a test like that, noting that gender is affected by a number of factors other than DNA.

“The short answer is there’s not a genetic test that can reliably predict a person’s gender,” she told TIME.

The memo seeks a definition of gender that, according to the Times, is “clear and grounded in science” but Weimer says determining one’s gender isn’t as simple as determining one’s blood type.

If this comes to fruition, “the word I would use is ‘catastrophic,’” she said.