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The Trump Administration Is Pushing to Regulate Transgender Americans Out of Their Legal Existence

Declaring sex immutable is, in effect, discrimination by legal re-categorization.
Gay, lesbian and transgender activists react to the unanimous decision by the Iowa Supreme Court earlier in the day recognizing same sex marriage as a civil right during a celebration on April 3, 2009 at the University of Iowa in Iowa City, Iowa.

In April of 2016, the New York Times declared that then-presidential candidate Donald Trump had set himself apart from the rest of the Republican Party in one unusual manner: his embrace, relative to his colleagues, of LGBT rights.

Americans "[should] use the bathroom they feel is appropriate," Trump famously said amid the outcry over a North Carolina bathroom law that prohibited citizens from using a public restroom that didn't match their gender identity at birth. Months later, following the massacre of dozens of LGBT Americans by a gunman at an Orlando nightclub, Trump declared that America "stands together in solidarity with the members of Orlando's LGBT community."

But that was all pre-White House rhetoric; two years into his presidency, Trump has been anything but supportive of LGBT rights. And that was no more apparent than on Sunday, when the New York Times reported the Department of Health and Human Services (HHS) is pushing a measure that would formally define someone's legal gender based on their "immutable biological traits" at birth—and, if accepted by the Department of Justice by the end of the year, would deprive nearly 1.4 million transgender Americans of legal recognition of their gender identity.

"Sex means a person's status as male or female based on immutable biological traits identifiable by or before birth," reads a draft of the HHS memo on the proposal, according to the Times. "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."

This HHS memo is, in many ways, the culmination of years of anti-LGBT action from the Trump White House. In February of 2017, the administration rescinded federal-level protections regarding bathroom usage, breaking Trump's campaign trail promise. Six months later, Trump signed a directive banning transgender individuals from joining the military—a law which the Department of Justice decided didn't amount to workplace discrimination because, according to Attorney General Jeff Sessions' memo, the Civil Rights Act only mentions discrimination based on "sex," not gender identity.

The new HHS measure, much like Sessions' memo, effectively shifts transgender Americans away from a protected class "subjected to systemic oppression and forced to live in silence," as a recent federal court decision put it, to one effectively cast aside by the justice system. The National Center for Transgender Equality called the HHS proposal "an attempt to put restraints on the lives of 2 million people, effectively abandoning our right to equal access to health care, to housing, to education, or to fair treatment under the law." Indeed, the proposed HHS measure is more than a legal monkey wrench; it would effectively regulate transgender Americans out of their legal existence, rendering them invisible in the eyes of the law. And, coming at a time when LGBT Americans are in danger of not being represented on the 2020 Census, that sort of minimization can create a legal blindspot for all sorts of issues regarding hate speech and hate crimes.

It also prevents government researchers from studying issues central to the trans community. Consider the Centers for Disease Control and Prevention's data on youth suicide: According to the 2015 Youth Risk Behavior Surveillance Survey29.4 percent of lesbian, gay, and bisexual students tried to kill themselves in 2015, almost five times as many as straight students—but no data exists on transgender suicide because no question based on gender identity exists. As a result, it's next to impossible for public institutions to tailor their resources to public-health issues like trans suicide; how can an agency address a problem if, legally and organizationally, the problem is not recognized in the first place?