The social definition of gender has evolved into a fluid description, which includes all people belonging to the LGBTQ+ community. However, the Department of Health and Human Services under the Trump administration has proposed a legal implementation of a binary definition of gender that is based on a purely biological standpoint. This could potentially nullify the LGBTQ+ gender spectrum.
Under the Obama administration, the historically binary definition of gender was loosened into a spectrum-like and increasingly fluid conception. This definition did not restrict people to choose the label of either male or female. The change in gender definition was likewise adopted by federally funded programs, such as education and healthcare. Additionally, there was a push to make public facilities, such as gender-neutral bathrooms, more accessible to individuals.
On Oct. 21, 2018, the New York Times revealed that the Washington administration is considering an implementation of a legal binary definition of gender. Under Title IX, which is a federal civil rights law that protects discrimination in federal-funded programs, the Department of Health and Human Services aims to define gender based purely on one’s genitals at birth — that is, gender would be a purely biological concept. An individual’s attitude towards his or her sexual orientation would be nullified in public settings.
According to the department’s memo, it stated that government agencies ought to define gender “on a biological basis that is clear, grounded in science, objective, and administrable … 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.” Thus, the definition of gender — as recognized by the government — will be conflated with biological sex assigned at birth.
Before the end of the calendar year, the Department of Health and Human Services aims to present their proposed definition of gender to the Department of Justice.
Currently, transgender people are protected from discrimination under civil rights laws. According to the ACLU, these laws are legislated by Title VII, Title IX, and the Affordable Care Act. Additionally, these laws protect transgender people in contexts including employers, landlords, schools, and healthcare providers. But, this will no longer be valid under the Department’s new gender definition.
The proposed definition of gender poses a problem to the estimated 1.4 million Americans who identify as a different gender than the gender they were assigned at birth. Transgender people have been protesting against the proposed definition of gender on social media with the hashtag #WontBeErased next to a photo of themselves. This movement has gained the support of many allies and accomplices.
Although nothing has been formally passed into law, the social definition of gender is an issue which may marginalize many people and the actions and comments of the Trump Administration concerning gender should be scrutinized.