The Trump administration has branded reports that it planning a new policy to undermine trans rights “misleading.”
On Sunday, the New York Times published leaked details of a planned Department of Health and Human Services (HHS) memo that seeks to define gender as a person’s sex assigned at birth, barring recognition of transgender people.
In response, HHS spokesperson Caitlin B. Oakley has hit out at the “misleading New York Times story,” and, though she did not deny the crux of the claims about the leaked memo, she attempted blame the Obama administration for the new plan.
“We do not comment on alleged, leaked documents that purport to indicate the status of deliberations or the focus of the department,” Oakley said in a statement to the press.
The spokesperson continued: “The Obama administration’s broad definition of ‘sex’ was enjoined by a federal court on a nationwide basis in December 2016 and the Obama administration did not appeal. That court found that the Obama administration regulation was overbroad and inconsistent with the text of the 1972 Title IX law prohibiting discrimination on the basis of sex.
“The court order remains in full force and effect today and HHS is bound by it as we continue to review the issue,” the statement added, before concluding with a pledge to “vigorously enforce all laws as written and passed by Congress, prohibiting discrimination in healthcare on the basis of race, color, religion, national origin, sex, age, and disability.”
Buzzfeed’s Dominc Holden notes that legal points cited in the statement are incorrect.
The Obama administration had argued a civil rights law banning discrimination on the basis of sex, Title IX, could also be used to bar discrimination based on gender identity, in the absence of specific LGBT+ discrimination laws from Congress.
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A federal judge knocked back the Obama-era interpretation of Title IX in education in August 2016, while the December 2016 ruling—from the same judge—issued a legal injunction against the application of sex-based discrimination protections in the Affordable Care Act to cover gender identity.
The HHS leaked memo goes significantly further than simply complying with either ruling, as it seeks to enforce a definition of sex across government that is defined by genitalia “on a biological basis,” effectively erasing the notion of gender identity.
According to the New York Times, 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 unless rebutted by reliable genetic evidence.”
The leaked memo has been met with legal threats from both the American Civil Liberties Union and LGBT+ civil rights organisation Lambda Legal, who have vowed to launch immediate legal action against the Trump administration if the policy is ever enacted.
James Esseks, director of the ACLU LGBT & HIV Project, said: “If the Trump administration moves forward with these hateful and hurtful policies, they will once again be met with opposition in courts and in communities,
“The ACLU will fight back against any efforts to use transgender people as political pawns and continue to seek full equality for transgender and non-binary people.”
Diana Flynn, Litigation Director at Lambda Legal, said: “Let us be clear: For years, courts across the country have recognised that discriminating against someone because they are transgender is a form of sex discrimination, full stop.
“If this administration wants to try and turn back the clock by moving ahead with its own legally frivolous and scientifically unsupportable definition of sex, we will be there to meet that challenge.”