Making Sense of the Memo
I’ll preface this all by reiterating that while I can offer a lot of insight into trans policy I am neither a lawyer nor a policy expert; so don’t take my interpretations here as the final word.
First this: Trans folks are not going away. We’ve always been here, we’ll continue to be here, and we’ll continue to fight for our rights. We’re a resilient bunch and no memo, no administration, no effort can change that.
Sunday’s New York Times article was rough news. The Trump Administration has repeatedly chipped away at LGBTQ+ rights and protections at every level, and this latest policy move (if it becomes a reality) would be a significant legal assault on trans folks.
As of today, it’s still just a memo under discussion. It’s not policy, and even more to the point - it’s far from settled law or policy. Make no mistake, even if this moves forward the legal challenges are just beginning.
There are five main impacts that this memo would have if it were adopted widely by departments in this administration:
It would formalize the Trump Administration’s stance that current federal law only protects on the basis of biological sex, rather than a more inclusive definition encompassing gender identity (note again: at a federal level there are no explicit protections on the basis of sexual orientation or gender identity).
It would explicitly remove protections tied to gender identity across all sorts of federal programs - including critically important areas like healthcare, housing, education, and the justice system. Many of these have already been rolled back piecemeal in policy moves; but this would be a major move in that direction.
It raises the distinct possibility that the State Department, if it adopted similar language, could end the current policies around passports for trans folks closing down a tremendously important legal documentation option for many.
It will further bolster court arguments by the Administration around pending legal cases regarding LGBTQ+ rights at every level of the courts.
Most troubling (though also, most likely to be challenged in courts as invasive and inconsistent), the memo proposes that biological sex be determined by genetic testing.
In short: It’s bad news.
But, let me quote the National Center for Transgender Equality on this one:
To transgender people: I know you are frightened. I know you are horrified to see your existence treated in such an inhumane and flippant manner. What this administration is trying to do is an abomination, a reckless attack on your life and mine. But this administration is also staffed by inexperienced amateurs overplaying their hand by taking extreme positions that ignore law, medicine, and basic human decency.
Agreed. Fully.
First, to reiterate, there is no change in policy or law as of today; and there’s a good chance that even if it were the court challenges would mean that the worst of this would be changed or (likely) held up indefinitely. This is amateur policy hour, and no matter how effectively the GOP has managed to stack the courts, much of this is likely to be turned back in litigation even if it is adopted. I sure am worried about how this might be interpreted by the newly established conservative majority on the Supreme Court, but I’m at least heartened by the fact that there are a ton of smart-as-hell LGBTQ+ law experts who have consistently been winning these cases in the lower courts.
That doesn’t make this any less damaging.
After the Trump administration rolled back Obama-era Title IX guidance, I reached out to the local school board around their lack of a specific policy on transgender students and facility access. They noted the uncertain legal landscape as their reason not to have a policy. Legal questions at a federal level trickle down, and while I may be well equipped to advocate for myself or navigate that tricky legal landscape, you can sure as hell bet that many trans folks don’t have the resources to do the same.
And this proposed policy is yet another clear attempt by the administration to push transgender folks back into the shadows. As much as it’s about policy, it’s about a statement of values, and part of a relentless effort to attack us on all fronts. The toll, on all sorts of levels, is very real. In short: the trans folks in your life are not okay right now.
Make no mistake, the moral arc of the universe is still bending towards a world where trans folks are going to achieve full legal and social acceptance. But we’re not there yet. And while we live under this administration, under this social and legal climate, we need your support. Particularly if you are a cisgender, straight ally. This is the time to speak up, to take action to show your support, and to fight alongside us. I know it can feel overwhelming given all the difficult news day-in and day-out, but this is a moment where action is both meaningful and necessary.
I already shared out Chase Strangio’s 7 Actions article, but I’ll add the following three things that you should do now:
Check in on the trans folks you know. We could use the extra support.
Call the Department of Health and Human Services (which is where this policy is circulating) and express your feelings on this proposal. HHS has a toll free #: 877-696-6775 and Secretary Alex Azar’s # is: 202-690-7000. No promises that you’ll actually reach anyone, but a volume of calls matters. While you’re at it, call your representatives in Washington and ask them to speak up for trans rights.
Take action at a local level. Whether or not this policy takes effect, the fight for trans rights in your state, your town, your school, your workplace, etc. will continue. Be a part of it.
