FIGHTING TRANS ERASURE: WHY AND HOW
Updated: Feb 12, 2019
By now you've probably read or heard about the New York Time's article entitled "'Transgender’ Could Be Defined Out of Existence Under Trump Administration," published on October 21, 2018.
The headline is terrifying and ominous -- let's talk about what is actually happening.
ARE TRANS PEOPLE AT RISK OF ACTUALLY, LITERALLY BEING ERASED?
No. We exist by the millions, and are not at risk of actually, literally being erased.
WHAT IS THIS ARTICLE EVEN TALKING ABOUT, THEN?
This article is talking about possible proposed changes to federal regulations and policies that would narrowly define "sex" as meaning chromosomes and/or the sex recorded on your original birth certificate.
WHAT ARE REGULATORY CHANGES? WHERE DO THEY COME FROM AND WHY DO THEY MATTER TO TRANS RIGHTS?
The government is broken up into three branches:
Legislative (e.g., Congress)
Executive (e.g., President and administrative agencies, like the Dept. of Health & Human Services, Dept. of Justice, Dept. of Education, Dept. of Labor, etc.)
Judicial (e.g., courts)
Congress passes bills, the President signs them into law, and then the administrative agencies are tasked with putting those new laws into action. Agencies do this by creating regulations, policies, and guidance that make the laws work and enforce them when people violate the laws. These regulations, policies and guidance are part of "the law" and have legal authority, since without them the law wouldn't really work.
Importantly, we do not get to elect the people who run these federal agencies -- they are appointed by the President. So, any time an agency wants to create or take away a regulation, it has to go through a formal rulemaking process that gives the public a chance to comment on what's happening. This supports our democratic system of things, so that regulations with the weight of law are not created willy nilly by people we don't get to elect.
Once they are created, regulations typically have a shelf-life of about 5 years, and then they are up for review to make sure they are still correct, necessary, and helpful to making the law work.
BUT... if an agency creates a regulation or takes one away for reasons that are not based in factual truth or legal precedent, then a court can overturn the agency's action.
OK -- SO WHAT DOES THIS ALL HAVE TO DO WITH TRANS ERASURE?
During the Obama administration, federal agencies created many new regulations, policies, and guidance that clearly spelled out how transgender and gender-nonconforming people were protected under federal laws that prohibit sex discrimination. They did this by officially interpreting "sex" broadly in an all-inclusive way.
The New York Times claims that it received a leaked memo written by the Dept. of Health & Human Services (HHS), the federal administrative agency that deals with health programs, medical providers, health insurance, Obamacare, and some elements of educational institutions covered under Title IX. The memo allegedly proposes to three other federal agencies that they all work together to propose a narrower definition of "sex" when some Obama-era regulations come up for review in the coming year or so. The idea is that if all four administrative agencies propose and eventually adopt the same narrow definition of "sex," then that new narrow definition will be more likely to stand up in court.
In effect, the administrative agencies are hoping to wipe out protections for trans, non-binary, and gender-nonconforming people by narrowing the definition of "sex" in the law. It's unclear at this point what impact this would have on intersex people.
Remember: If an agency creates a regulation or takes one away for reasons that are not based in factual truth, then a court can overturn the agency's action. For example, if an agency says we don't need regulations that protect trans people because trans people don't exist, but since trans people do exist and courts have long recognized protections for trans people, then the agency's decision would be considered "arbitrary and capricious" and would not stand up in court.
WILL THEY SUCCEED IN ERASING PROTECTIONS FOR TRANS PEOPLE?
No. Here's why:
An overwhelming number of court decisions in the past two decades support the fact that trans people are protected under federal law -- a change in regulations cannot undo those decisions
There is established consensus among medical providers and scientists that supports trans people being exactly who we are, and to have access to the care we need to be ourselves
What they are proposing -- that trans people don't exist -- is factually not true, and any attempt to make a baseless regulation not grounded in facts can be overturned by a court
WHAT CAN I PERSONALLY DO ABOUT THIS?
Here are some concrete things you can do to counter this possible attack on our rights:
Don't panic -- take a deep breath, and remember that you DO exist, you have the RIGHT to exist, and that you are NOT ALONE in this fight
Educate yourselves and your local community. Don't buy into scary headlines alone -- media sources thrive on grabbing your attention, and will often use exaggerated or misleading headlines to do so. Read what something is about, try to find original documents to understand what's happening, ask questions and don't jump to conclusions.
Join the social media campaign against any transphobic regulations by using this image and hashtag below!
Call your congressperson and tell them we need them to make sure trans people are protected in the law today!
Get involved in efforts to solidify rights in your state!
Keep your eyes open for an opportunity to submit a comment on any new proposed regulations that come out about this in the coming year(s). I will update this page as soon as the proposed regulations come out -- feel free to subscribe to my mailing list to get alerts when that happens!