The New York Times reports that the Trump administration is attempting to eliminate the rights of transgender people by creating a narrow legal definition of gender. Citing a government memo, the Times reveals that the Department of Health and Human Services has undertaken an effort across several government agencies to establish a legal definition of sex under Title IX, the federal civil rights law that bans discrimination on the basis of sex. That definition would be either male or female, unchangeable, and determined by the genitals a person is born with. The Times reports that the memo says, “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.” If enacted, the proposal would reverse the expansion of transgender rights that took place under President Barack Obama. We speak with Chase Strangio, staff attorney at the ACLU.
NERMEEN SHAIKH: The New York Times is reporting the Trump administration is attempting to eliminate the rights of transgender people by creating a narrow legal definition of gender. Citing a government memo, the Times reveals that the Department of Health and Human Services has undertaken an effort across several government agencies to establish a legal definition of sex under Title IX, the federal civil rights law that bans discrimination on the basis of sex. That definition would be either male or female, unchangeable, and determined by the genitals a person is born with. According to the Times, the memo says, quote, “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.”
AMY GOODMAN: If enacted, the proposal would reverse the expansion of transgender rights that took place under President Barack Obama. On Sunday night, hundreds of LGBTQ activists held an emergency rally in New York’s Washington Square to protest the proposal. Groups plan another demonstration today in Washington, D.C.
For more, we’re joined by Chase Strangio, staff attorney at the ACLU. Chase was at last night’s rally.
Welcome back to Democracy Now! So, Chase, start off by talking about what exactly this memo says. I think the poster people were carrying last night, “Hell no to the memo!” This report that the administration is considering narrowly defining gender as a biological condition determined by genitalia at birth.
CHASE STRANGIO: So, this is part of the Trump administration’s widespread effort to attack trans rights. And in this case, it’s a memo that was written months ago that is part of an effort to restrict the federal civil rights laws so that trans people aren’t protected. Now, it’s being touted as this effort to erase trans people, and I think that’s certainly what many in the administration would like to do. That’s what we saw with the military ban. That’s what we saw with the memo with respect to prisons. But the reality is that the executive branch of government cannot single-handedly change the law. So this is an effort to narrow federal civil rights protections, but federal civil rights protections are still written by Congress, existing in federal law and interpreted by the court. So this is certainly not the final word on anything, but it is part of a widespread attack on the trans community that we’ve seen across the administration.
NERMEEN SHAIKH: Well, can you talk about what’s been happening at the state level?
CHASE STRANGIO: Yeah, absolutely. So, I think, just to take a step back, this effort to define what people are calling, quote-unquote, “biological sex” is really a concerted effort to both situate trans people outside the law and to claim that our bodies are really a threat to others. And we saw this in 2015, in 2016, in North Carolina and elsewhere, with HB 2, for example, in North Carolina, which was really an effort to push trans people out of public life. And now, you know, two years later, the people who were defending HB 2 have high-level positions in the federal government, and so we’re seeing an effort to implement this at the federal level.
AMY GOODMAN: Explain what HB 2 is again, for people who might not remember, in North Carolina.
CHASE STRANGIO: So, HB 2 was the law in North Carolina that passed in 2016 that barred transgender people from using facilities that matched our genders. That passed quickly in a special session in North Carolina. The people who were defending HB 2 in court now have incredibly high-level positions in the federal government: head of the Department of Justice Civil Rights Division, the solicitor general of the United States and a federal judge on the 5th Circuit Court of Appeals. So the very people who were orchestrating a systematic attack on trans people at the state level are now running things at the federal government. That’s both true with respect to HB 2, but it’s also true with respect to the many groups that have had coordinated attacks on the LGBT community for decades. So, people who have been involved with Alliance Defending Freedom, the Heritage Foundation are now the people who are not only in the federal government, but who are running the, quote-unquote, “civil rights divisions” of federal executive agencies. And it has been their mission to attack trans people for years, if not decades. And so, that’s what we’re seeing, an effort to restrict the ability of trans people to get legal protections.
NERMEEN SHAIKH: Well, could you explain, what would the effect of this be on transgender people, if there is this narrow definition of biological, as you say—so-called biological sex?
CHASE STRANGIO: So, I think there’s two things we should be looking at. The first is that this is an effort to restrict federal civil rights laws. What that would mean is that it would restrict the ability of transgender, non-binary, gender-nonconforming people—and actually all people—to access protections under federal law that prohibit discrimination on the basis of sex in education, housing, employment. So there’s that effort to restrict the law in that way. Again, the courts are going to be the ones to interpret this in the end, and Congress could come in and make changes to anything the executive did. So there’s that effort.
And then there’s this larger sort of discursive cultural effort to tell the world that there is no such thing as a trans person, that you are born with a sex, and that can never be changed. And this is an insidious effort to tell the world and sort of fuel this idea that trans people are always fraudulent, that somehow the truth of our bodies and our so-called biology is going to be betrayed. And this is also what fuels violence against so many trans people, especially trans people of color.
AMY GOODMAN: Because?
CHASE STRANGIO: Because what happens is there’s this idea that trans people are inauthentic, that we’re out here to deceive you. But the reality is, is that we are who we say we are, and that biological sex, as the other side, as the right, as people in power in the Trump administration are trying to talk about it, is not a scientific fact. It’s an ideological effort to tell people that trans existence isn’t real. And so, then what happens is, on the streets, people say, “Oh, you’re really a man,” to a woman who is trans. And that is precisely what fuels the violence against so many in the trans community.
AMY GOODMAN: Explain what the federal law and the rules are now and how this memo indicates they will be changed.
CHASE STRANGIO: Right now, federal civil rights law prohibits discrimination on the basis of sex. The courts have long understood that that includes discrimination against trans people and anyone who departs from sex stereotypes. So this is not new. The New York Times was incorrect in saying that the Obama administration, quote-unquote, “loosened” the definition of gender or sex. That is not what happened. The law has been clear for decades. The Obama administration offered interpretive guidance consistent with that. The effort now is to offer new interpretation that will conflict with the federal law as interpreted by the courts. And so, this is not something that the Trump administration can do single-handedly, but it is an effort to exclude trans people from civil rights protections. And we have to stay vigilant.
And I think it’s also important to remember that federal law is not the only source of protections for people. There is state law. There is local law. And it is so easy for us to get caught up with what the Trump administration is doing, when there is so much happening at the state level. And I just want to draw people’s attention to the fact that in November, on November 6, there is an incredibly important vote in Massachusetts, where Massachusetts passed through their Legislature protections for transgender people, and now there’s an effort to repeal those at the ballot. So, if we allow these things to happen in the states, then we absolutely are going to see this expansive attack at the federal government.
NERMEEN SHAIKH: Well, can we also talk about how the media has been covering this? You have been very critical of this New York Times piece that just came out, “'Transgender' Could Be Defined Out of Existence Under Trump Administration.” So what is it about the language that’s being deployed, about the people who are being asked to speak and to write on this issue, that you’re critical of?
CHASE STRANGIO: I have long been very critical of The New York Times’ trans coverage. And that’s true of yesterday’s article, as well. I think it was an incendiary headline designed to get clicks. It absolutely is true that trans people are under attack, but the idea that trans people’s existence is up for debate is precisely the paradigm that The New York Times has fueled over the years of its coverage, suggesting that there are two sides to an argument about whether trans people exist.
Trans people exist, full stop. It is not up for debate. And The New York Times, The Guardian—right now in the U.K., there’s a conversation about the Gender Recognition Act there. The Guardian has been publishing editorials about whether or not—which side of the argument people support. It is not an argument about whether people exist. We exist. And the more we have a ideological debate about whether or not it’s moral or ethical to recognize the existence of trans people, the more we’re going to embolden the Trump administration and other state-level government actors to act to take away our rights. This isn’t a debate. It doesn’t violate anyone else’s rights for trans people to have rights.
NERMEEN SHAIKH: How would you respond to those who say that framing the conversation in this way is a way of persuading people? Now, of course, as you say, transgender people, of course, they exist. But if the other argument is put forward, then perhaps people who aren’t persuaded of this will be persuaded.
CHASE STRANGIO: I think the concern is that we’re hearing a debate about trans existence that’s not being led by trans people. And so much of what we’re seeing is this understanding of transness that really entrenches this notion that there’s some biological truth of sex and something else that’s ideological called gender. And that really is a false dichotomy. And what we’re seeing is that by saying that there’s something called science that’s true—
AMY GOODMAN: It’s interesting that the administration is using science to defend what they’re saying here.
CHASE STRANGIO: Yeah. All of a sudden they care about science. But the reality is that I think—what I want people to really understand is, there may be things that are typically true in science. So, for example, it may be typically true that men have certain bodies. But it’s a political choice to make that definitional, to say men have to have certain bodies in order to be men. And I think what we have to understand is that these are political choices that are part of a long legacy that is very much connected to colonialism, white supremacy and efforts to exclude people from participation in society.
AMY GOODMAN: Where do you think is the best place to get information on trans issues?
CHASE STRANGIO: I think the best place to get information on trans issues is from trans people. So we can look at publications that have trans writers, whether that’s Broadly at Vice; them, a Condé Nast publication; Teen Vogue. The voices of trans people have long challenged the way this conversation has been framed in places like The New York Times. The New York Times, The New Yorker, The Guardian are regularly running pieces attacking whether or not trans people can and should exist.
AMY GOODMAN: As we begin to wrap up, you are Chelsea Manning’s lawyer. Chelsea just tweeted this weekend, “after almost a decade of fighting–thru prison, the courts, a hunger strike, and thru the insurance company–I finally got surgery this week.” She later tweeted, “laws don’t determine our existence–we determine our existence–it’s our weapon, our shelter, our energy, our healer, our truth–we will keep moving forward–we will keep fighting–existence is our only law.” Last comment, on Chelsea?
CHASE STRANGIO: You know, I just want to say I’m so proud of Chelsea. I’m so happy to see her getting the healthcare that she needs. I hope other trans people will also get that healthcare. And I just want to say to the trans community, this is a terrifying time. People were breaking out into tears yesterday. I know people are scared, but we have a long history of resistance, and we will continue to fight. And we absolutely will survive.
AMY GOODMAN: Well, I want to thank you very much, Chase Strangio, for joining us, staff attorney at the ACLU.
This is Democracy Now! When we come back, we return to our conversation with the head of the Israeli human rights group B’Tselem. For the first time, they officially testified before the U.N. Security Council last week. Stay with us.