The New York Times ran a front-page story on October 21, 2018 with the headline: “‘Transgender’ Could be Defined out of Existence under Trump Administration.” The story reported that “the Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth.” Other than Caitlyn Jenner, who had maintained a naïve belief that Trump would honor his pledge at the Republican National Convention to “do everything in my power to protect LGBTQ citizens from the violence and oppression of a hateful foreign ideology,” no one was surprised.

This new draft policy wasn’t really “news.”

Within a month of taking office, Attorney General Sessions withdrew the “Dear Colleague” letter that would have supported transgender students in using the bathroom that conformed to their gender identity.  Emboldened by the Department of Justice’s (DOJ) position, some plaintiffs tried to sue school districts to force them to require transgender students to use single-user stalls and keep them out of bathrooms that conformed to their gender identity. Citing a similar result in a Seventh Circuit case, the Third Circuit rejected those efforts: “A school district’s policy that required a transgender student to use single-user facilities ‘actually invited more scrutiny and attention from his peers.’ Adopting the appellants’ position would very publicly brand all transgender students with a scarlet “T,” and they should not have to endure that as the price of attending their public school.”

Then, the President issued various directives to discharge all transgender individuals from the military, and not allow any new ones to enlist. On July 26, 2017, President Trump used his Twitter account to announce that “the United States government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military.” On August 25, 2017, Trump released a memorandum directing the Defense Department to develop a plan to discharge transgender members of the military and ban all new transgender recruits within the next six months.  In October 2017, a federal judge blocked the implementation of that ban finding it was based on “disapproval of transgender people generally.” This tactic was especially cruel because the Obama administration had promised them that they could serve openly. They would now face termination for following a previous policy. On March 23, 2018, in response to the obvious due process problems with the previous memorandum for active service members, the Trump administration announced it would begin implementing its transgender policy but would allow the Defense Secretary to retain service members who had been serving openly under President Obama’s prior directive. A federal district court judge quickly issued an injunction, stating that the new policy was discriminatory and unjustified. Every federal court that has heard a case on this issue ruled that the ban should be enjoined because of its unconstitutionality. This means that the courts have seen through a sham, post-hoc attempt to justify a policy that clearly flowed from Trump’s July 2017 tweet. Nonetheless, continuing litigation creates much anxiety and hardship for transgender members of the military. Despite these court decisions, transgender recruits also report they are still not able to enlist in the military.

Meanwhile, the DOJ has consistently taken positions adverse to the transgender community under the Affordable Care Act (“ACA”).  When a federal district court judge, on March 1, 2017, overturned a regulation drafted by the Obama administration to protect transgender individuals from health care discrimination, the Trump administration took the highly unusual step of deciding not to appeal that decision, allowing a nationwide injunction to go into effect.

Not deterred by the lack of protection offered by that regulation, litigants went forward with challenging transgender discrimination in health care under the ACA. Courts in Wisconsin and Minnesota concluded that the plain language of the ACA prevented transgender discrimination.  The Trump administration has nonetheless refused to protect transgender people seeking care under the ACA.

The DOJ’s hostility to transgender people was also reflected in the positions they took under Title VII, which are in conflict with the Equal Employment Opportunity Commission’s position. After the EEOC successfully brought a transgender discrimination case in the Sixth Circuit to challenge a woman’s termination from a funeral home, the Trump Administration sought to have that decision reversed in the United States Supreme Court.

One story reflects the horrific consequences from this kind of overt discrimination. Fourteen-year old Kyler Prescott was accessing health care at an in-patient mental health facility under his Affordable Care Act health plan. The mental health facility insisted on calling him by female pronouns, deliberately worsening his mental health condition. After he committed suicide, his mother successfully brought an action under ACA arguing that he was discriminated against on the basis of “sex,” relying on the plain language of the ACA. The district court judge agreed with her argument and allowed the case to go forward. The Trump Administration would insist that we should tolerate such disrespectful and inhumane treatment.

If the Trump administration’s proposal to create a uniform, narrow definition of “sex” and “sex discrimination” across all federal agencies becomes policy, it could create many more hardships for the transgender community.  Here are some of the potential nightmares:

• Soldiers who have transitioned to a different gender from their birth gender would be required to dress and live as their birth gender while serving in the military undermining unit cohesion.
• Patients who have been prescribed hormone treatment or surgery to assist them in transitioning would not be able to access that treatment under the Affordable Care Act, causing adverse health effects and increasing mental health problems.
• Students who attend publicly-funded schools would be addressed exclusively by their birth name and birth gender even if they have transitioned to a different sex, increasing bullying and harming the mental health of these students.
• Prisoners who have transitioned to a different gender would be housed with their birth gender putting them at increased risk of rape and harassment. A May 11, 2018 Memorandum reverses protections for transgender prisoners.
• The United States Census Bureau would keep data that is inconsistent with the gender that a person experiences and lives providing inaccurate information about the society in which we live.
• A U.S. Passport would have a different gender designation than a state-issued driver’s license or birth certificate causing enormous confusion when people try to travel internationally. Under Obama-era policy, passports are supposed to reflect an individual’s gender identity.
• No federal employee who has transitioned to a new gender would be allowed to wear gender-conforming clothing and use gender-conforming labels at work, increasing rates of suspension and discharge, as well as harassment for transgender people.
• Transgender people who are homeless would receive no federal assistance through HUD in securing a safe place to stay. Safe practices rules that had been developed under the Obama administration would be abandoned despite the high rates of homelessness for transgender youth.
• Police departments would receive no oversight for their treatment of transgender people, despite evidence of longstanding abusive practices against this community. These pervasive problems make transgender people afraid to seek help from law enforcement when they are the victims of criminal acts.

The suicide rate for the transgender community is already higher than for many other communities. We live in a time when there is increased attention to mental health problems. Why would the federal government want to act with such cruelty to transgender people?

A respectful governmental policy towards transgender people will not require anyone to change their own gender identity. It will just require them to respect the choices made by others.

If the marriage equality debate taught us anything, it’s that a person’s marital status should not change depending on what state they reside in or whether they are seeking federal rather than state benefits. But, if the Trump administration proposed policy were allowed to go into effect, that would become the new nightmare for the transgender community.  A person might wake up identifying as a male person in Massachusetts but then travel to a military base for work where the person might be forced to present as a female. Bullying, harassment, and even suicide rates would go up in stark contradiction to Trump’s campaign pledge “to do everything in my power to protect the LGBTQ citizens from the violence and oppression of a hateful foreign ideology.” It would not be a “foreign” ideology, it would be a home-grown one.

Fortunately, the Trump administration policy is so extreme that it is unlikely to withstand legal challenge. As detailed above, they have already lost cases involving the military, the Affordable Care Act, Title VII and Title IX. In recent years, every circuit court that has interpreted the term “sex” has recognized that discrimination on the basis of one’s gender identity is a core type of sex discrimination. But these issues have not yet reached the United States Supreme Court. Rather than rely on the Gorsuch/Kavanaugh Court to put politics aside to invalidate the Trump administration’s hostility to the transgender community, it would be better if this draft policy simply went into the shredder.

It may not be new, but it is dangerous.

Ruth Colker is one of the leading scholars in the country in the areas of Constitutional Law, LGBT rights, and Disability Discrimination.  She is the author of fifteen books, including Sexual Orientation, Gender Identity, and the Law (West Publishing 2017). She is the Heck-Faust Memorial Chair in Constitutional Law at the Moritz College Law, The Ohio State University. She was the first law faculty member to be designated a Distinguished University Professor, the university’s highest academic honor.

Suggested citation: Ruth Colker, Nothing New, JURIST – Academic Commentary, October 30, 2018, http://jurist.org/forum/2018/10/colker-nothing-new.php

This article was prepared for publication by Raven Moore, a JURIST Assistant Editor. Please direct any questions or comments to her at commentary@jurist.org