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HHS reportedly considering a limited definition of gender. Is it legal?

According to the New York Times, the Trump administration is considering a proposal that would establish the definition of gender as a “biological,” fixed quality based on the sex the person was assigned at birth. Critics say that such a move to would eliminate transgender identities in the workplace. William Brangham examines the issue with Sharon McGowan of Lambda Legal.

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  • Judy Woodruff:

    But first, the culture wars over gender, sexuality and identity may be heating up again.

    A story in The New York Times says the Trump administration is preparing to reverse Obama era policies on protecting transgender individuals.

    As William Brangham explains, the latest battle is over the very recognition of more than one million transgender Americans and their right to specific services.

  • William Brangham:

    Just to be clear, it was the Obama administration that expanded and loosened federal laws about gender during Obama's second term.

    That administration, in response to changes in the legal landscape and to the lived experiences of thousands of trans people, began to recognize that a person's gender could be how they self-identified, not just how they were born.

    That change, of course, led to big fights over school bathrooms and dormitories. But President Trump's team has argued those changes went too far and is now allegedly proposing a near total reversal.

    The New York Times obtained a draft memo that says the Department of Health and Human Services is planning to issue a legal definition of gender that is based — quote — "on a biological basis that is clear, grounded in science, objective."

    According to the memo, that definition would be determined at birth, male or female, and not changeable.

    The department today said they wouldn't confirm any proposed change and wouldn't verify the accuracy of the leaked memo.

    But the president today acknowledged that the administration was looking very seriously at this change.

    And many trans rights groups are worried. And protesters took to the streets today and went to the White House.

    Joining me now is Sharon McGowan. She's the legal director for Lambda Legal, one of the nation's oldest groups promoting the rights of the LGBTQ community.

    Welcome to the "NewsHour."

  • Sharon McGowan:

    Thank you for having me.

  • William Brangham:

    What is your reaction to this proposed change, very binary change in the definition of gender, boy, girl, no changes? What's your reaction?

  • Sharon McGowan:

    Well, unfortunately, I'm not surprised, because we know that, from day one, this administration has really taken it upon itself to try and unwind the progress that we have made for the LGBT community.

    But, in some sense, this really is a piece of a larger trend with this — within this administration to disregard law and to disregard fact.

    The idea that this is a proposal that is grounded in science is truly laughable, because, when you think about it, we have had decades now of court cases and medical evidence demonstrating that transgender people are real, their identities are real, and that your gender and your sex is far more than just what you were classified on your birth certificate or the chromosomal makeup of your body.

  • William Brangham:

    I mean, this is something that people genuinely on both sides are confused about. I mean, there is the lived experience, as you say, of tens of thousands, hundreds of thousands of transgendered people.

    But there's also many people who don't quite understand it. And I think there's even people within the community who — who acknowledge that the science is still evolving in our understanding of what it means to be transgendered.

  • Sharon McGowan:

    I think that the science has become more accessible to people, because, in many ways, for decades, we have had the scientists who study this area closely recognize that there are many different aspects of your sex.

    And, for most of us, all of those are in alignment. So I don't necessarily think about my gender identity as distinct from perhaps the body that I live in.

    But I also know that many of us wake up every morning knowing in our hearts who we are, knowing that we are male or female. And so when I describe it in that way to people, it's not really confusing.

    How do that you are a man, or how do I know that I'm a woman? It's not necessarily from a piece of paper I look at every morning to remind myself of who I am. There is a deeply sort of seated, held belief.

    And the science has helped us to understand that better in a way that I think has helped us sort of evolve the conversation, so that it is no longer as difficult for people to wrap their head around it as it might have been previously.

  • William Brangham:

    The Department of Health and Human Services, we asked them for comment on this, and they wouldn't talk today about this.

    If this memo is real and if it is enacted as policy, what is your sense of what the practical implications would be? What will it actually mean for transgendered people in America?

  • Sharon McGowan:

    Well, the good news is that any kind of interpretation of the law like this from Health and Human Services doesn't change the fact that the law itself protects transgender people from sex discrimination.

    They may have a view that it doesn't, but, at the end of the day, that is a question that is going to continue to be litigated in the courts. And for many, many years now, the overwhelming majority of courts have held that sex discrimination laws protect people from being discriminated against because they're transgendered.

    But I don't want to downplay the really significant harm that is being done even by talking about a proposal like this.

    I spent today with many transgender people and parents of transgender children who are truly afraid of what this means for their families, the notion that a school may now feel emboldened to discriminate against their child or health care provider may be emboldened to turn them away.

    Previously, there would have been that knowledge and that comfort that an agency like Health and Human Services would have been a place that they could turn to have those rights vindicated. And now, if this kind of proposal were to be put into place, in essence, the doors would be closed in their face.

    Now, fortunately, there are organizations like Lambda Legal who will continue to defend the rights of the LGBT community. But it's extremely important to recognize the deep, deep harm that is being done by trying to basically create an outcast group of citizens in this country.

  • William Brangham:

    This memo is credited to a man named Roger Severino. He's at the Civil Rights Department at HHS.

    And prior to joining the Trump administration, he was at a think tank. And he was very critical of the Obama administration's moves. And he said that they were intended to — quote — "impose a new definition of what it means to be a man or a woman on the entire nation." And he called them lawless.

    What do you make of that criticism?

  • Sharon McGowan:

    Well, I think that it is noteworthy that we are seeing this kind of policy change from someone like Roger Severino. He clearly was selected for this position in part because there is a desire to promote his world view.

    But the suggestion that this is a response to lawlessness, I would just point to the fact that, when Attorney General Holder back in 2014 announced that the Justice Department would be interpreting federal law as protecting transgender people, it was a multipage, case-laden document.

    And when Jeff Sessions last year rescinded that memo, there were barely any legal citations at all.

  • William Brangham:

    There is this one case in Texas where the — a federal district court judge said the Obama administration, citing Congress' Title IX categorization, he seemed to push back and said that there was some justification that the Obama administration had overreached in some way.

  • Sharon McGowan:

    Yes.

    So this judge, Judge O'Connor in Texas, has become sort of the go-to court for individuals who are looking to strike down aspects of the Obama administration's accomplishments protecting transgender people.

    But his decision is truly an outlier in the face of decades of case law in which Republican- and Democratic-appointed judges alike are recognizing that discrimination against a transgender individual is just as much a form of sex discrimination as it is religious discrimination to penalize someone for having converted from one religion to another.

    There are many cases out there that actually sort of go through not only sort of that logical argument, but also the scientific basis for understanding that your gender identity is as much a part of who you are as other aspects of your sex that have clearly been held as protected against sex discrimination, whether it's nonconforming appearance, whether it's other ways in which you don't necessarily conform with your employer's idea about how men or women are supposed to act in the workplace.

    So, this truly is the lawless action that we're seeing right now, a disregard of case law that this administration doesn't like to be able to achieve an outcome that is the world that they want to live in.

  • William Brangham:

    Sharon McGowan, Lambda Legal, thank you very much.

  • Sharon McGowan:

    Thank you for having me.

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